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Goruell Law School Library
Cornell University Library
KF 390.F3H14 1895

Manual of law

HL wana

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
MANUAL FARM LAW,
OUR RIGHTS AND DUTIES.

 

FRanual ot Law

AND

BUSINESS FORMS.

BY

Henry A. Haigh,

Counselor at Law.

——.

DARLING BROS. & CO., Publishers,
DETROIT, MICHIGAN, AND ST. LOUIS, MO., ‘
1895.
¢:
b

COPYRIGHTED, 188:

 

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BY
HENRY A. HAIGH.

PIM LINDE PENN DLL INIA LIN
Copyricurmp, *887,

BY
& S. DARLING,

Detroit, Mic.

 

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PREFACE.\

For several years the writer conducted in The Michigan
farmer, and subsequently in Zhe American Agriculturist, a
department in which the Law or THE Farm was set forth in
a series of short articles, and answers were given to inquiries
by subscribers upon legal questions arising in the experiences
of farm life. During that time the suggestion was frequently
made to nim that if the articles and the questions with their
answers cuild be embodied in connected form they would make
a book of practical use to farmers and the industrial classes
generally, The present volume is in part the result of that
suggestion and while it is sought to give special prominence
to those st.ojects which are of most common importance among
farmers ai:d artisans, still effort has not been spared to make
the work useful to the general reader.

The book is not intended to obviate the necessity for the
assistance of a lawyer. Such a claim for it would be neither
reasonable nor candid, But it is hoped that its suggestions may
be found useful in preventing mistakes of ignorance or care-
Jessness, and thus help to keep its readers out of some of the
entanglements of the law.

And if it shall serve to throw some light upon that subject
of paramount importance, namely—the laws of the land—among
classes so numerous that they constitute the great mass of the
population, the author will feel that he has not labored in vain,

HENRY A. HAIGH.
 

STATE NORMAL AND TRAINING SCHOOL, OSWEGO, N. ¥.

 

CEDAR FALLS.

 

 

IOWA STATE NORMAL,

 

 

 
TABLE OF CONTENTS.

PART I.

CHAPTER I.
PRELIMINARY CONSIDERATIONS,

Definition of I.aw—Sources of Law—The Federal Constitution—Acts of Congress
—State Constitutions—State Statutes—The Common Law—General Principles—
Contracts—Requisites of Contracts—Legality—Contracts in Restraint of Trade
—FParties- to Contracts—Mutual Assent—Valid Considerations—Fraud and
Deceit—Written and Verbal Contracts. Pages 1-8,

CHAPTER II.
REAL ESTATE LAW.
Property in General—Land—Title to Land—Ownership of Land—Fee Simple—
Estate Tail—Estates for Life—Emblements, etc.—Estates for Years—Estates at
Will—Estate in Dower—Estate by Curtesy. Pages 9-16.

CHAPTER III.
: THE ACQUIREMENT OF REAL ESTATE.

Title by Possession—Accretion—Prescription—Estoppel—Public Grants—How to
Get a Farm from Uncle Sam—By Purchase—By Pre-emption— Under the Home-
stead Act—-Soldiers’ Homesteads—The Timber Culture Acts—Mining Claims—
Land Office Fees—List of—Land Patent—Title by “Office Grant ’’—Sheriff's
Sales—Tax Sales, etc,—Title by Private Grant (How to Buy a Farm)—Agree-
ment to Sell Land, Pages 17-36.

CHAPTER IV.
OF DEEDS.

Definition of Deed—Requisites of Deeds—Parties to Deeds—The Consideration
The Description—Covenants in Deeds—Execution of Deeds—Delivery—Record-
ing Deeds—Deeds Poll and by Indenture—Forms of Deeds. Pages 37-45.

CHAPTER V,
OF EXAMINING TITLE.

Searching the Records—Abstracts of Title—Suggestions as to what defects of title
to look out for——Useful information for real estate dealers and others. Pages

46-53.
viii TABLE OF CONTENTS.

 

CHAPTER VI.
OF MORTGAGES.

Definition—Doctrines Concerning—Requisites of a Mortgage—Equitable Mort-
gage—Form of Mortgage—Execution—Delivery and Recording—Power of Sale
—lInsurance Clause—Taxes—lInterest—Legal Rates of Interest in the several
States—Compound Interest—Usury—Assignment of Mortgages—Payment and
Discharge—Foreclosure of Mortgages—Redemption, etc. Pages 54-66,

CHAPTER VII.
DEEDS OF TRUST.
7 {nstruments sometimes used instead of Mortgages—Form of Trust Deeds—Pages

* 67-68,

CHAPTER VIII.
FIXTURES,

Things that go with the Farm—What is included in a sale of Lands— Rules for
Determining What are Fixtures—Things held to be Fixtures—Buildings—House-
hold Furniture Not—Fences—Growing Crops—Nursery Trees—Manure—Agni-
cultural Machinery—Pumps, Sinks, etc,—-Machinery in General—Farm Bells—
Gas Fixtures—Stones, Statues Title Deeds—Heir Looms. Pages 69-76,

CHAPTER IX.
APPURTENANCES, ETC.
These are interests or rights connected with real estate, Pages 77-78.

CHAPTER X.
FARM SURVEYING.

Boundaries of a Farm—How to determine them—Monuments—Courses and Dis-
tances—Quantity of Land—Parol Evidence—Streams, etc.—Artificial Ponds. —
Lakes—The Sea—Highways—Surveys—Acquiescence— Meander Lines—Pages
79-87.

CHAPTER XI.
EASEMENTS—WHAT ARE THEY?

Light—Air—Water—Rights in—Ways—How Ways Are Acquired—Ways of
Necessity—Ways by Long Use—Ways by Purchase—How Ways May be Used
-—-Obstruction of Ways—Termination of Ways—Lateral Support—Subjacent Sup-
port—Water as a Support—Mining Leases—Side Support for Houses—Party
Walls—Rights in Party Walls—Miscellaneous Easements, Pages 88-104. _

CHAPTER XIL
OF WATER RIGHTS AND DRAINAGE.

Three Conditions in which Water Naturally Exists—Brief Statement of General
Rule—Streams or Natural Water Courses—Rights in a Water Course—Use of
Water for Running Mills—Acquirement of Mill Privileges—Use of Water for
Irrigation—Artificial Water Courses—Public Drains, etc.—Rights in Surface

Waters—Rights in Underground Waters— Right to Eaves Drip—The Right of
Passage in Streams, Pages 105-111,
TABLE OF CONTENTS. >

 

CHAPTER XIII.

OF RIGHTS IN THE ROAD.

What is a Highway—How Roads May be Used—Moving Buildings Along Roads
—Travel with Teams, etc,— Which Way to Turn—Crossing a Road—Passing ip
the Highway—Horseback Riders—Foot Passengers—Rate of Speed-~Vehicles
must be Roadworthy—Stopping by the Wayside—Leaving Horses Untied—
Fractious Horses—Misconduct in the Road—Obstructions and Nuisances—Abate-
ment of Nuisances in Highway—Rights of Adjacent Owners—How Roads are
Made—By Legislative Authority—Right of Eminent Domain—Dedication of
Streets—Repair and Maintenance of Highways—Liability for Failure to Repaia
—Discontinuance of Highways. Pages 112-126,

CHAPTER XIV.

OF RIGHTS ON THE FARM.

Right of Exclusive Possession—Implied License to Enter Lands—License Given
by Law—Express License—Trespasses on Real Estate—How Committed—
Trespasses by Servants—Trespasses by Domestic Animals —Trespasses by Dogs
—Trespasses by Persons Hunting and Fishing—Who Owns Wild Game—Pos-
session of Land. Pages 127-137.

CHAPTER XV.
CONCERNING WASTE.

Important to Persons Leasing Land—No General Rule as to what Waste is—Cut-
ting Down Trees, etc.—Manure Made on the Farm—Must be Used there by
Tenant—Rule as to Composted Manures—Purpose of the Leasing Important—
Permissive Waste—Failure to Repair Buildings—Injuries from Fires—Remedies
for Waste. Pages 138-141.

CHAPTER XVI.

FENCE LAW.

Common Law of the Subject—Statute Law of the Subject—Division Fences—
Duties of Fence Viewers—Fence Laws Apply only to Improved Lands—Whea
Division Fences not Necessary—Exterior or Road Fences—Railroad Fences—
What is a Legal Fence? Pages 142-150.

CHAPTER XVII.

CATTLE IN THE HIGHWAY.
A Question of Expediency—A Question of Right—Statutes on the Subject—Sum-
mary, Pages 151-155.

CHAPTER XVIII.

FARMER’S LIABILITY FOR THE ACTS OF HIS ANIMALS,

General Rule as to Trespasses—Exceptions to the General Rule—Injuries by
Vicious Animals—Owner Liable if Negligent—Contributory Negligence Excuses
—Keeping Wild Animals—Injuries by Dogs—Dog Laws—Dog Fights—Who
Liable for Injuries. Pages 156-167

* ‘
x TABLE OF CONTENTS.

 

CHAPTER XIX.

LEGAL REMEDIES FOR INJURIES BY ANIMALS,
Remedies for Trespasses—Impounding: Animals—Turning Trespassing Beasts into
the Highway—Damages Done by Fowls, ete.—Remedy for Vicious Injuries—
When Vicious Animals May be Killed. Pages 164-168.

CHAPTER XX.

NUISANCES ON THE FARM.

What are Nuisances—Kinds of—Obstructing or Encroaching Upon a Highway—
Dangerous Excavations, etc,—Old and Unsafe Structures—Overhanging Trees—
Cess-pools, Privy Vaults, and Filthy Sewers—Discharge of Water—Ponds,
Sloughs, Swamps, ete.—Diseased Cattle, ete.—Careless Setting of Fires—Legal
Remedies for Nuisances—Abatement of Nuisances—Injunctions—Actions for
Damages. Pages 169-183.

CHAPTER XXI.

OF HIRING HELP.

Rights and Liabilities of the Employer and the Employe—Importance of the Sub-
ject—The Relation of Master and Servant—Who Owns a Minor’s Wages—
Apprentices—Contracts of Hiring—Implied Contracts, Pages 184-193.

CHAPTER XXII.

THE MASTER’S LIABILITY TO HIS SERVANTS.

The Employer’s Duties—Injuries by Fellow Servants—Injuries by Defective
Machinery—Injuries by Defective Buildings—Risks not Incident to the Employ-
ment. Pages 194-198.

CHAPTER XXIII.

THE EMPLOYER’S LIABILITY FOR THE ACTS OF HIS EMPLOYERS.
Statement of the Rule—Illustrations. Pages 199-201.

CHAPTER XXIV,

TAXATION,
Definition of Taxes—Power to Tax Limited—Is the Tax Valid? ”—If Paid,

Taxes Cannot be Recovered—Tax Deeds—Tax Sales—Land Sharks and Tax
Titles. Pages 202-208.

CHAPTER XXV.

THE LAW OF SALES.

Its Application to the Purchase and Sale of Farm Products—What is a Sale ?—The
Thing Sold—Sales of Things not yet made, or owned by the Seller—Contracts
of Sale—These Must Sometimes be in Writing—Memorandum of Sale—Forms
Goods, Wares, and Merchandise—Acceptance and Receipt—When the Title
to Property Sold Passes—Cases where Title Does not Pass—Cases where Title
Does Pass—lIllustrations— Conditions— Warranty of Goods—Express Warranties
TABLE OF CONTENTS. x

 

—General Warranties—Warranty of Horses—Written Warranties—Implied
Warranties—Purchase of Spurious Seeds—Sale of Fruit Trees and other Nursery
Stock—Remedies for Breach of Warranty—Rights and Remedies of the Seller
of Goods —Stoppage of Goods in Transitu—Rights and Remedies of the Buyer.
Pages 209-225.

CHAPTER XXVI.

COMMON CARRIERS.

Duties of Persons Engaged in Carrying Goods and Passengers—Who is a Common
Carrier—Duty of a Carrier—Carrier of Goods Insures their Safe Delivery—
Limitation of the Rule—Special Contracts Limiting Carrier’s Liability—When
Carrier’s Liability Begins—When Carrier’s Liability Ceases—Duty of a Carrier
of Persons—Rule of Liability for Carrier of Persons—Evidence of Negligence
of Carrier—When Liability to Passenger Begins and Ceases—Carrier Must Carry
all Impartially—What Excuses are Valid. Rules Adopted by Carriers. Pages
226-232.

CHAPTER XXVII.

LAWS CONCERNING FARM ANIMALS,

As to Horses—Horse Breakers, their Rights and Duties—Horse Breakers’ Lien—
Stallions—-Veterinary Surgeons and Farriers—As to Cattle—Sale of Diseased
Cattle—Brands and Ear Marks—As to Sheep—Diseases of Sheep—Taking
Sheep on Shares—The Sale of Wool—As to Bees—As to Hogs. Pages 232-
237.

CHAPTER XXVIII.

PASTURING ANIMALS.
General Rule Applicable to the Case—The Agistor is not an Insurer—Duty of the
Agistor— Has no Lien at Common Law—Statutory Lien—Trespasses by Animals
Pastured—Agistor Cannot Use Animals Pastured. Pages 238-241.

CHAPTER XXIX,.

HIRING OF ANIMALS.

Rights and Duties of the Owner—The Owner Warrants Title—Abuse of Hired
Animals—Rights and Duties of the Hirer—Borrowing Animals. Pages 241-,
544. ¢

CHAPTER XXX.
LANDLORD AND TENANT.

Importance of the Subject—Leases of Land—The Duties of the Landlord—Land-
Jord Must Pay the Taxes—The Rule as to Repairs—Repairs of Farm Property
—Repairs of Fences—The Tenant’s Duties—What Alterations the Tenant May
Make—Collecting Rent—Landlord’s Title Cannot be Disputed by the Tenant—

Tenant Must Guard the Property—What the Tenant May Remove—Termina.
tion of a Tenancy—The Rule in Michigan. Pages 244-250.
xii TABLE OF CONTENTS.

 

CHAPTER XXXI.
RAISING CROPS ON SHARES.

Farming on Shares is not Leasing—The Cropper on Shares is not a Laborer—The
Duties of the Crop Grower—How the Crop Shall be Divided, Pages 250-253.

CHAPTER XXXII.

ARBITRATION AND AWARD.

How to Proceed by Arbitration—Arbitration Bond—Duties of Arbitrators—The
Award—Statutory Arbitration—The Method in Michigan. Pages 253-255.

CHAPTER XXXII.

THE DESCENT OF REAL PROPERTY.

The Common Law of Descent—Statutes of Descent—General Summary of—The
Widow’s Right of Dower—lIllegitimate Children—Advancements, etc. Pages
256-261.

CHAPTER XXXIV.
THE DISTRIBUTION OF PERSONAL PROPERTY.

Administration of Estates—Payment of Debts—Distribution of Residue—Is
Administration Necessary? Pages 261-264.

CHAPTER XXXV.
OF WILLS.

Ways of Disposing of Property at Death—Definition of a Will—Common Law as
to Wills—Statutes on the Subject—Kinds of Wills—Who May Make a Will?—
Avoiding a Will—Form and Requisites of Wills—Signing the Will—Witnessing
the Will—Form of Attestation—Codicils—Revocation of Wills, Pages 264-271.

CHAPTER XXXVI.

EXECUTORS AND ADMINISTRATORS,
Duties of Executors—Duties of Administrators—Inventory of Assets—Appraisers.

—Payment of Debts—Commissioners on Claims—Distribution of Assets—The
Probate Court. Pages 272-277.

PART II.
CHAPTER I.

NOTARIES PUBLIO—THEIR DUTIES AND LIABILITIES.

The Office of Notary Public—How to Get the Office—Qualifying—Taking Affi-
davits—The Jurat—Depositions—Administering the Oath—Acknowledgments—
—Wife’s Acknowledgment—Seals—Certificate of Acknowledgment—Rules of
Conveyancing—Protesting Commercial Paper—Days of Grace—Bills of Ex-
change—Place of Payment—Form of Protest—Shipping or Marine Protests—
Protests as Evidence—Special Duties of Notaries. Pages 277-289,
CHAPTER I.

PRELIMINARY CONSIDERATIONS.

1. Definition of Law. 6. State Statutes.

2. Sources of Law. 7. The Common Law.

3. The Federal Constitution. 8. A General Principle.

4. Acts of Congress. g. A Contract.

5. State Constitutions. 10. Requisites of a Contract.

1. Definition of Law. By the term /aw in this book is meant
municipal or civil law, or “the law of the land,” as distinguished
from natural law, or the law of God. It is said to be “the rules
by which society compels or restrains the action of its members;”
or, “the rules of civil conduct prescribed by the supreme power
im a State;” or, “the aggregate of those rules and principles of
conduct which the governing power in a community recognizes as
the rules and principles which it will enforce and sanction, and
according to which it will regulate, limit and protect the conduct
of its members.” These definitions have been given. by law
writers. No one of them is perfect. It would be almost impos-
sible to lay down in concise terms a faultless definition of law,
Its complexity renders conciseness of definition difficult; yet the
idea is not a difficult one to grasp. It may be written and formal,
as constitutions, statutes, etc., or it may be unwritten, as the com-
mon law of England and those long established customs which
have acquired with us the force of positive law. Nor does it
consist any more of those solemn expressions of legislative will
called “statutes,” than it does of the constructions placed upon
those statutes by the courts.

A little reflection, however, will enable the reader to see that,
viewed as a whole, the law is as near as we can perhaps express
it, simply ns properly constituted regulations of a country for the
3 MANUAL OF THE LAW.

 

os
control of its people, and the protection of their property and
their rights.

2. Sources of Law. There are five sources to which we must
look for the laws which obtain in each of the American States.
These are: The United States Constitution, the Acts of Con-
gress, the State Constitution, the Acts of the State Legislature,
and the Common Law. It will be well to consider each briefly.

3. The Federal Constitution. This is the supreme law of
the United States, the highest law of the land. It is a document,
consisting of seven articles, which was framed by a convention
of the representatives of the people which met in Philadelphia in
1787, and adopted the constitution on the 17th of September in
that year. It went into force on the first Wednesday in March,
1789. It vests certain powers in the Federal Government, limits
to a certain extent the powers of the various States, and declares
certain rights and privileges to the people. Being the funda-
mental law of the land, all other laws must conform to it, other-
wise they are unconstitutional and void. It cannot be changed or
amended except by consent of two-thirds of all the States,
Fifteen amendments have thus been made to it at various times
since its adoption.

4, Acts of Congress. The Federal Constitution gives Con-
gress power to legislate on certain subjects. The control of most
things which are of national importance —like the declaring of
war, raising of armies, coining of money, establishing post-offices,
granting patents to inventors, regulating commerce, etc., is given
to Congress.: Concerning these subjects thus placed under its
care, and only these, it can enact such laws as seem to it wise.
Its enactments must conform to the United States Constitution;
but it is not necessary that they be in harmony with State laws,
for they are superior to those. Congress consists of the Senate
and House of Representatives. There are 90 Senators, and 357
Representatives.

5, State Constitutions. These are to the respective States
what the Federal Constitution is to the United States, with this
difference: The general government is one of delegated powers.
It can do only what it is given authority to by the Federal Consti-
tution, The State governments have more nearly unlimited
powers. They can do everything which is not prohibited by
their constitutions or by the Federal Constitution. The States
PRELIMINARY CONSIDERATION. 3

 

possess all the sovereign power, that is all the power by which
the people are governed, except what they have given to the
general government in the Federal Constitution. The people
adopted the Federal Constitution for the purpose of creating and
of giving certain powers to the general government. The State
constitutions are adopted by the people of the various States for
the purpose not only of establishing their own State governments,
but of placing certain checks and limits upon the power of their
own legislatures.

The Constitutions of the several States are not uniform, but are
quite similar. They usually set forth the general frame-work of
the State government, give the general qualification of the right
of suffrage, divide and define the powers of government and the
duties of State officials, and contain usually a bold declaration of
rights for the protection of individuals and minorities. There are
38 States and hence 38 State Constitutions in force in this country.
A State Constitution can only be amended by the properly
expressed will of the people of the State.

6. State Statutes, These are the formal and solemn enact-
ments of the different State Legislatures. They bear upona very
great number of subjects. They must conform to the Federal
and State Constitutions, but need not necessarily be in harmony
with every Federal Statute. Where they are not, they are so far
simply superseded. For example: The Federal bankruptcy law,
recently repealed, made uniform regulation on the subject of
bankruptcy throughout the land. The various States at the same
time had laws for the benefit of insolvent debtors, etc., designed
for the same purpose as the bankrupt law. The State Statutes
were not rendered void by the Federal law, but were simply
placed in abeyance. The repeal of that law has left them again

in full force. Any subject or matter not touched upon by the
laws so far enumerated, is regulated by what is called the com-
mon law. ’

7. The Gommon Law. This is the great mass of unwritten
laws, the “deges non scripte,” as they are called, or the general
customs of the people which have been so long honored and
observed as to have acquired the force of positive law. “ The
common law consists of all those principles, usages, and rules of
action, applied to the government and security of persons and
property, which do not rest for their authority upon any express
4 MANUAL OF THE LAW.

 

and positive declaration of the will of the Legislature.” (1.) It is
based for the most part upon the common law of England, which
was transplanted to this country by the early colonists.

“ The common law of England consisted of those maxims of
freedom, order, enterprise, and thrift, which had prevailed in the
conduct of public affairs, the management of private business, the
regulation of the domestic institutions, and the acquisition, control,
and transfer of property from time immemorial. It was the out-
growth of the habits of thought and action of the people, and
was modified gradually and insensibly from time to time as those
habits became modified, and as civilization advanced, and new
inventions introduced new wants and conveniences, and new
modes of business. Springing from the very nature of the
people themselves, and developed in their own experience, it was
obviously the body of laws best adapted to their needs, and as
they took with them their nature, so also they would take with
them these laws whenever they should transfer their domicile
from one country to another.” (2.)

The common law of Louisiana is derived partially from that of
Spain, and is modified somewhat by that of France, that State
having been at one time a Spanish, and at another, a French
colony.

8. A General Principle, Having thus briefly taken a gen-
eral view of the subject and sources of the law, let us see if we
cannot discover some general principle running through it which
may aid us in our investigations. It is not meant by this to
refer to any general law of morals, or principle of right or
wrong, for the study of ethics is no part of our present purpose.
What is needed is something, not of theoretical, but of practica]
application.

it must be confessed that jurisprudence is not an exact science
and that there is no one fundamental principle that will explain all
its provisions; but the principle of the contract will be found to
be of wonderfully wide application, and to underlie and deter-
mine very many of our rights and obligations in our dealings with
each other.

9, A Contract is an agreement between two or more persons;
—“an agreement in which a party undertakes to do or not to do

(% 1 Kent’s Commentaries, 492.
2.) Cooley’s Constitutional Limitations, page 21,
PRELIMINARY CONSIDERATIONS. 5

 

a particular thing;” (1.)—“an agreement upon sufficient consider-
ation to do or not to do a particular thing.” (2.)

The foundation rule in regard to contracts is that every man
must fulfill every agreement he makes; every person must keep
his promises. There are a few exceptions to this, but still it is the
general rule; and so important is it that the United States Consti-
tution forbids the States from passing any law which will relieve
any one from the obligation of performing the contracts he has
made. (3.) It is not needful here to prove the justice of this rule.
That is obvious. Our civilization is built upon it. If men were
not obliged to live up to their agreements we could not carry on
business, for nearly every business act is the fulfillment of some
agreement. No one would be willing to sell goods, for there
would be no way of collecting pay for them; no one would be
willing to do work, for he would have no valid claim for his
wages.

10. Requisites of a Contract. Being of so much impor-
tance it will be well to here consider this matter of contracts.
There are seven requisites generally necessary to the validity of
a contract. These are:

(1.) Possibility. The thing to be done must be possible. Few
people are foolish enough to depend on an impossible agreement;
if they are they must generally bear the consequences of their
folly. But it is not every sort of impossible contract that its
maker is relieved from performing; for if the thing agreed to be
done is not i zts ature impossible, but is only impossible to him
who agrees to do it, then the party so agreeing must pay for his
foolishness in attempting what he could not do. For example:
If A agrees to take B across the ocean in a day, B will have no
remedy if he fails to do it; but if A agrees to furnish B 1,000
bushels of wheat at a certain time, and he finds it impossible to
get the wheat, he must answer in damages for his failure. It is
the duty of every one making a contract to foresee and provide
against every circumstance which might render it impossible, and
the other party has the right to rely upon his doing so. Sickness
does not generally excuse one, nor lack of money ever. Even
death does not always annul a contract, for unless it involves some
personal skill, the executor must carry it out.

i Chief Justice Marshall in 4 Wheat., 197.
2.

 

2 Blackstone’s Commentaries, 446.
U. S. Constitution, Art, 1, Sec. 10.
6 MANUAL OF THE LAW.

 

(2.) Legality. A contract the law forbids is void, The law
will not compel a man to do that which it prohibits him from
doing. The thing agreed to be done must be legal and also the
consideration or thing paid for it must be legal. There are not
many contracts of this class. Bets, bribery, and gambling agree-
ments, contracts to smuggle goods, etc.,—in fact any contract
which has for its purpose the carrying out of any object contrary
to justice or common morality—these are void because they are
regarded in law as hurtful to the public; they are agaiust public
policy as it is termed. The law will not therefore enforce them,
even though one party has performed his part or paid money.
Usury is inmost States illegal,—people are prevented from agree-
ing to pay ortake more thana certain rate of interest. This mat-
ter is referred to further on. A contract in restraint of trade,
like agreeing to give up one’s trade, profession or business, is
regarded as against public policy and is void. This applies only
to a general surrender, an agreement to give up trade entirely. A
contract no: .v carry on a trade in a certain locality is valid. It
has been held in several cases that a contract to give up trade in a
certain State of the United States is good. *

Contracts made on Sunday are generally invalid.

Contracts between citizens of one country and citizens of
another are as valid and binding as any, unless the two countries
come to war. War puts a stop to all commercial relations and
renders all such contracts void.

If part of a contract is illegal and part not, and it is capable of
being divided, and the consideration can also be separated into
corresponding parts, then the part which is legal is valid and can
be enforced. This seldom occurs,

(3-) Proper Parties. There must be competent patties to
every valid contract. A contract with a minor, or idiot, or
drunken person, is not binding upon him. The minor can enforce
his contract but it cannot be enforced against him, unless he rati-
fies it on coming of age. Neglecting to then disaffirm it, or
continuing to receive benefits from it, would generally amount to
ratification, Contracts for necessaries, however, made by any of
the above are binding upon them. ‘These are for food, raiment,
shelter. education, etc. A contract by an infant, for instance, for
such necessaries as are needful for him, taking into account nes

* See Chase vs. Beal, 24 Mich., 492.
PRELIMINARY CONSIDERATIONS. 7

 

station in life, etc., is binding upon him, and may be collected out
of his estate.

(4-) AZutual Assent. A proposition not assented to by both
parties is not binding on either. Assent is implied by the word
agreement. It is absolutely essential to the validity of a contract.
Assent may be manifested in various ways. Anything which
indicates it with certainty is sufficient. An offer may be with-
drawn any time before it is accepted. If it is accepted by letter
the contract is regarded as complete the moment the letter is put
into the office, if properly directed.

(5-) Valid Consideration, A promise which does not rest
upon some substantial consideration cannot be enforced. Some-
thing must be given, or done, or promised, in order to make the
agreement binding. The value of the consideration is not gener-
ally important. The law will not protect a man against a poor
bargain, but it will not compel him to do that for which he has
received absolutely nothing. A debt of ozor, therefore, cannot
be enforced. The law does not attempt to make men faithful or
even just; it only attempts to prevent injury, and a man is not
regarded as injured by the breaking of a promise for which he
has paid nothing. A consideration may consist of money paid, or
anything else given, or work done, or anything promised. In a
marriage contract the woman’s promise of marriage is the consid-
eration for the man’s, and vice versa.

Considerations are said to be valuable when they have a money
value, as labor, or lands, or chattels. They are good when they
consist of something which does not possess a money value, as
love, affection, or filial duty. These latter are sufficient to support
a promise in some cases.

In deeds, and promissory notes, drafts, and bills of exchange,
the consideration is presumed, that is, it is regarded as existing
whether it does or not. The first of these being solemn written
instruments, it is presumed that they would not be undertaken
except upon consideration; the latter three being used and
intended for circulating medium, to pass from hand to hand,
would be deprived of much of their value for that purpose did
the law allow the consideration for which they are given to be
inquired into. So the consideration is in these cases presumed or
implied,
8 MANUAL OF THE LAW.

 

(6.) Fraud and Deceit. A contract obtained by fraud is void
as against the party using the fraud, but may be enforced by the
innocent party if he sees fit. Fraud may consist in stating false-
hoods or suppressing important facts. JZistake also sometimes
has the same effect. (Too technical to be gone inte further here.)

(7.) Written Contracts. Certain contracts must be in writing
in order to be binding. What is known as the Statute of frauds,
an English law enacted in the 2gth year of the reign of Charles
the Second, the provisions of which have been enacted in most of
the States of the American Union, requires that certain contracts
must be written and signed. These include contracts relating to
the sale of real estate, leases for more than a year, promises of
executors and administrators to pay the debts of the estates for
which they act out of their own funds, all promises to answer for
the debts or defaults of another, all agreements not to be per-
formed within a year from the time of their making, and contracts
for the sale of goods amounting to over $50. All these must be
in writing and signed by the party to be charged; otherwise they
cannot be enforced. In case of the sale of goods, the payment of
earnest money or the acceptance of part of the géods does away
with the necessity for a written contract.

If the reader will keep in mind these elementary requisites in
entering his various contract relations he may avoid trouble; and
it is in the avoidance of trouble that his legal knowledge will
benefit him more than in remedying that which has come about.
CHAPTER If.

REAL ESTATE.

 

2, Property in General, 8. Estates for Life.
3. Land. 9g. Emblements.

3. Real Estate Law. to. Estates for Years.
4. Title to Real Estate. ni. Estates at Will.
5. Ownership of Real Estate. 12. Estate in Dower.
6. Fee-Simple or Full Ownership. 13. Estate by Curtesy.
9. Estate Tail,

1. Property in General. Property consists of lands and
chattels, or of Real Estate and Personal Property, The term
property is broad, and may be said to include everything which
is the subject of ownership. It is commonly divided into the two
kinds above mentioned, and these are governed by quite distinct
systems of jurisprudence. Real property, or, as it is usually
called, real estate, includes lands, tenements, and hereditaments.
These terms constantly recur in real estate law, and it should be
borne in mind that land means any portion of the earth’s surface,
tenements means this and also anything else which may be leased
or held by the same title that land is, and hereditaments includes
both the above and everything else which may be inherited. All
of these are, by statute, in some States included in the term land.

Real estate may also be corforeal, as land and those tangible
and substantial things attached to it and regarded as a part of it,—
such as trees, buildings, and the like; or it may be zncorforeal, as
certain rights and profits arising out of or annexed to land. The
former is always included in the familiar term land,

2, Land. This then is any soil, ground, or earth, as fields,
meadows, pastures, woods, waters, marshes, furzes, heaths, etc.,
which constitute the surface of the earth. It extends upwards
indefinitely, and downwards to the centre of the earth. It
therefore includes all things growing upon or affixed to it,—as
16 MANUAL OF THE LAW.

trees, crops, fences, and houses, and everything else which has
become so attached to it as to be what are called fixtures; (See
chapter on Fixtures,) and also everything contained beneath the
surface, as coal, ores, stone, and mines of iron, and other metals
including silver and gold. (1.)

It will be seen that land thus includes things which in them-
selves are of a chattel nature. For example, trees growing or
coal in the mine are real property, but when the trees are cut
down or the coal is mined they become personal property or chat-
tels. A fence post just purchased is a chattel, but when it is set in
the ground it is regarded as part of the land. Some articles are
considered as real property though they are never physically
attached to the land, but are only constructively or theoretically
annexed to it,—as the keys of a house, the deeds and other
evidences of ownership, and some other similar articles called hezr
looms.

8. Real Estate Law. The law regulating this very important
subject of real estate, has been of long and gradual growth. It
was the first to receive the attention of the law-making power,
and has always been the subject of the profoundest study of
students of jurisprudence. Many of its incidents and provisions
originated in the old feudal system of tenures, which was the
system of holding real property that prevailed in England and in
the countries of Western Europe during the middle ages, That
system arose from the peculiar political condition of those coun-
tries, by which it came about that real property was held by
tenure, which was something like a lease, from the great lords and
barons, who in turn held the land similarly from the King; and
the King theoretically if not practically held the absolute and
ultimate ownership of the land. The feudal system has long
since become extinct, but many of the terms and expressions so
often recurring in real estate law there took origin; and it is to
that system that we must look for the explanation of many things
which otherwise seem very senseless and difficult. Reference will

 

| (1.) At the common law mines of silver and gold did not belong to the owner
of the surface, These were reserved by the Crown, the King being obliged to
defend the realm, and to coin and furnish money necessary for that purpose and for
the uses ef trade and commerce, asserted the right to all mines of precious metals
as sn indispensible necessity, 1 Blackstone’s Comm., 294. A similar right has
been claimed by some of the States. In New York such mines are, by statute,
reserved to the peaple of the State. N.Y Revised Statutes, 6 Ed, Vol. x, 735.
BEAL ESTATE. i

 

therefore occasionally be made,in the following pages to this old
feudal system.

Question is sometimes made as te why in our forms of deeds
and other legal documents, old fashioned phraseology and odd
terms which possess no popular meaning are still retained. The
answer is that these expressions and words have, by their long use
for their particular purposes, acquired a settled and definite mean-
ing, the Courts have in most instances cleared up all obscurity
surrounding them, and they are therefore safer and hence better
than more modern expressions which might be more easily under-
stood by the masses. The law is properly conservative, and inno-
vations even in forms of expression are not favored.

The real estate law of this coyntry is contained very largely in
the Statutes of the different States, which have gone into more of
detail in this than in most other subjects. Among these statutes
there is a general similarity, at least in the main features, and these
main features will be in the following pages pointed out and
exceptions to them, when such occur, referred to.

4. Title to Real Estate. It is a principle of our law,
founded upon the old feudal maxims, that the Government—
which with us takes the place of the Crown—is the true and
only source of title to real estate. All valid individual claims,
therefore, to land in the United States must be derived from the
grant of our Federal or State governments, except certain grants
from the Crown, or contained in Royal Charters, which became
vested before the time of the American Revolution. A title to
land from any other source would not be valid.

The ordinary meaning of the word title is the one that is given
to it inlaw. It is the means by which the owner has the posses-
sion of his land, the thing that gives him the right to his interest
there; and the expressions which we often hear, “good tztle,”
«doubtful title,” “clouded title,” “bad title,” etc., popularly
express the legal significance which is attached to them.

Title to land may be obtained in two ways, namely, by Descent,
and by Purchase. By descent is meant where an heir takes
property on the death of his ancestor, or wherever land is acquired
by inheritance. By purchase is meant every other method by
which title to land may be acquired. It will be seen thus that the
word “purchase” has in law a very much broader meaning than
the one ordinarily given it. It includes not only buying land but
12 MANUAL OF THE LAW.

 

acquiring it by gift, grant, prescription and every other way
except inheritance.

5. Ownership of Real Estate, There is much variety in the
kinds of interest or ownership which a person may possess in land.
It may be full, absolute, and complete, or it may be partial or con-
ditional. It may be for all time, or to end when a certain event
happens. It may be for the lifetime of the owner, or some one
else. It may not commence until a future time, it may be fora
definite period or merely during the pleasure of some person.
This idea of ownership, or the right which man has in real
property, is expressed in law by the word estate. That word has,
also, even in the law, a broader meaning than that, signifying
anything of which property may consist, as real estate and per-
sonal estate; but its proper and technical meaning when used as it
generally is in connection with a qualifying word is the degree,
quantity, nature, and extent of interest which one has in real
property. These different kinds of interests or ownership above
referred to are indicated and distinguished as different kinds of
estates,—as for example: Estate in Fee-Simple, Estate in Fee-
tail, Estate in Dower, Estate by the Curtesy, Estate in Joint Ten-
ancy, Estate in Common, Estate in Expectancy, Estate in Posses-
sion, Estate in Remainder, Estate for Life, Estate for Years,
Estate at Will, etc., etc.

The incidents, conditions, and characteristics of these different
estates, or at least of such of them as obtain to any extent in
America, will be here considered. Not all are of equal import-
ance. Some have been done away with by statute, as estate in
tail, and some as estates at will have been by statute or decisions
of Courts modified or turned into other estates. The first, because
most important, is:

G. Fee-Simple or Fall Ownership. In the United States
almost all the land is held by this the fullest and most complete
title or ownership. It is the largest possible estate which a man
may have in land. It is where lands are given to a man and his
heirs, absolutely without any end or limitation put to the estate.
(1.) The word fee is of feudal origin, signifying a feud or land
holden of a superior lord, in distinction from allodial lands, or
those not so held. This title gives to the owner the fullest power

 

(t.) 2 Bl. Com,, 106.
REAL ESTATE. 13

 

of doing with or disposing of his estate in any way he may see
fit—even to destroying it if he chooses, as for instance, in tearing
down a house; and on failing to dispose of it, it descends, upon
his death, to such of his kindred, no matter how remote, as the
law marks out as his heirs. (1.)

It was formerly always necessary that the word “ heirs” should
occur in the grant or deed in order to create this estate. If land
were granted not to John Smith and hés heirs, but only to John
Smith, no fee-simple would be created, but only an estate for life.
The same would be true if the deed said John Smith “and his
heir,’ or John Smith “or his heirs,” or “his assigns forever,” or
“his successors,” or “his offspring,” in all of these cases it has
been held that only a life estate was created. (2.) A deed to
«J. M. and his generation to endure so long as the waters of the
Delaware run” was held to convey a life estate only. (3.) But
in Vermont a lease for 1,000 years or so long as wood grows and
water runs, was held to be a fee. (4.)

The use of this word “heirs” is still necessary to create a fee-
simple, except in those States where this rather arbitrary rule has,
been abolished by statute. It has been so abolished in New York,
Michigan, and elsewhere, (5.) and in quite a number of the States
there are statutes designed to remedy defects and mistakes in con-
veyances, but it is doubtful whether such statutes do more good
than harm. (6.) The wisdom of disturbing a well defined rule of
conveyancing is very questionable.

In wills it is not necessary to use the word “heirs” in order to
create and give an estate in fee-simple. If the intention of the
testator, or person making the will, is clearly expressed other-
wise, it will be sufficient. (7.) But to prevent any question of
this there are statutes in England, and in many of the States,
whereby a devise or will of lands carries whatever estate the
devisor or testator had in them, unless the same is restricted by
the language of the will. (8.)

 

1 Washburn, Real Prop., 66. 9 Allen, 525.
See cases cited in 1 Washburn Real Prop., 71.
Foster vs. Joice, 3 Wash. C. C., 498.
Arms vs. Burt, 1 Vermont, 303.
Laws of Mich,, 1881, page 227.
.\ The word “ezrs” not necessary to create a fee in the following States:
Alabama, Arkansas, Georgia, Illinois, lowa, Kentucky, Mississippi, Missouri, New
York, Tennessee, Texas, Virginia, Maryland, and Michigan.

y.) Jarman on Wills, page 229. . 2

{5} There are such Statutes in all the States mentioned in note (6) except
Michigan.

SRESTS
14 MANUAL OF THE LAW.

 

47. Estate Tail. This is an estate of inheritance, like a fee-
simple, except that instead of descending to the heirs generally,
it goes only to the heirs of the grantee’s hody; that is, to his
children and through them to his grandchildren, and so on as
long as the line continues. It is an estate given to a man and
the heirs of his body. He cannot, therefore, cut off their inherit-
ance, nor sell or mortgage anything more than his interest in
the land, which really only amounts to a life estate. This form
of estate was much favored in early days in England among the
great landed families; but it was early found to be objection-
able for many reasons. Children were largely independent of
their parents, and they grew disobedient. Creditors could not
enforce payment out of the lands of their debtors. Estates-tail
are now practically abolished in England, and they are entirely
so in this country. In most of the States they are by express
constitutional or statutory provision turned into fees-simple. In
others there are simple legal methods of accomplishing this.
The genius of our people has always been strongly against
primogeniture and entailment, and neither now exist here.

8. Estates for Life. These include all estates in land which
last during the life of the owner or some other person, but which
then terminate and do not descend to heirs. An estate tail
becomes an estate for life when the possibility of issue is extinct.
Such estates are common in America; many arise by operation of
law as estates iz Dower, and 6y the Curtesy, and others arise by
the act of the parties, as where lands are given to one to use dur-
ing his life. Property is often left this way by will, as where a
man leaves his lands to his wife to use during her life, and then to
go to his children, etc.

The important thing to remember about life estates is that the
owner is entitled to what are called estovers and emblements, and
that he must not commit waste.

The term estovers is the legal expression for timber or wood
necessary for use, as fuel and for repairing the house, barns, and
fences of the farm. The tenant for life or owner of a life estate
in lands is entitled to a reasonable quantity of this—if the land is
capable of supplying it—for the use of himself and his family
upon the premises. It has been held, also, to include a reasonable
supply for the use of necessary servants employed upon the farm,

.
REAL ESTATE, 15

 

living in the same or in another house upon the premises. (1.)
Only so much timber as is necessary for present use upon the
farm can be taken, and it must be cut in a proper and careful
manner, and only that can be taken which is fit for the purpose
intended. (2.) Wood cannot be cut and sold, even though the
money is used for the purchase of fuel which would otherwise
come from the farm (3), nor can clay be dug for the purpose of
making bricks for sale. (4.)

An owner of a life estate may sell or lease his interest, and all
his rights in the land will pass to his grantee or tenant. (5.)

9. Emblements are the profits of the land which are the
result of the tenant’s industry. The term in a strict sense is
applied to the right which a tenant has to take away certain crops
after his tenancy or estate is terminated. It is a privilege which
the law gives to those whose estates may be suddenly terminated
for the purpose of encouraging husbandry. The crops are only
such as are the growth of annual planting, as corn, wheat, peas,
beans, potatoes, and the like. These the owner of a life estate
which has been suddenly terminated, by his own death or by the
death of some one else, may, or his representative may, take away
when they are ripened; and may enter upon the land for the
purpose of continuing their cultivation until the harvest time.

The owner of a life estate or of an estate for years must not
commit waste. That is, he must not do or suffer to be done upon
the premises anything which essentially injures the interests of
whoever owns the inheritance or future estate. He must use the
land as a prudent farmer would use it, keep the buildings in fair
repair, and take away only the annual crops.

For a full consideration of this subject of waste and incidentally
of estovers and emblements, see Chapter XV.

10. Estates for Years, These are interests in lands usually
arising out of contracts called leases for the possession of land
during a definite number of years. They are somewhat similar in
character to estates for life, except where they expire at a definite

 

(1.) Smith vs, Jewett, 40 N. H., 532.
(2.) Simonson vs. Norton, 7 Bing., 640,
(3.) Phillips vs. Allen, 7 Allen, 117.

(4-) Livingston vs. Reynolds, 2 Hill, 157.
(5-) Cook vs. Cook, 11 Gray, 123.
16 MANUAL OF THE LAW.

 

and known time the right to emblements does not attach. See
Landlord and Tenant, Chapter XXXI.

11. Estates at Will. These are interests in land which last
during the will or pleasure of the parties in interest. They are
created sometimes by lease; sometimes by operation of law, as
where the tenant holds over after the time specified in his lease has
expired. Either party can terminate the estate, whether it is so
specified in the lease or not. A tenant at will is entitled to
estovers, and when the estate is terminated by the landlord, to
emblements. (1.) The death of either party or any act done
denoting a clear intention to determine the estate will generally
end it.

12. Estate in Dower. Dower is the provision which the
law makes for a widow out of the property of her husband, for
her support and the nurture of her children. It is a life estate
which the wife takes by law out of the husband’s lands and tene-
ments immediately upon his death, In Michigan the widow’s
dower consists of one-third of the husband’s property, both real
and personal. She is entitled to this in any event. If he wills
her something in lieu of dower she need not so accept it unless
she sees fit,

18. Estate by Curtesy. This is a life estate which the
husband takes upon the death of the wife in the lands of which
the wife was possessed during their coverture, providing they
have had issue. Four things are essential to create this estate,
viz.: Marriage, possession of real estate by the wife, birth of a
child alive during the life of the wife, and the death of the wife.
Curtesy has grown into practical disuse in England, and has been
abolished or modified in many of the States,

 

= (1.) Sherborn vs. Jones, 20 Me., 7o.
CHAPTER III.

THE ACQUIREMENT OF REAL ESTATE.

 

1. Two Ways of Obtaining Title g. Pre-emption.

to Land. 10. The Homestead Act,
2. Title by Possession. 11. Soldiers’ Homesteads.
3. By Accretion, 12. The Timber Culture Act.
4. Prescription, 13. Mining Claims.
5. Estoppel. 14. Fees of Land Offices.
6. Public Grant. 15. Title by Office Grant.
7. A Farm from Uncle Sam. 16. Title by Private Grant.

8. Purchase from the Government.

Having in the preceding chapter considered somewhat the
nature and incidents of real property, it will now be well to
examine briefly some of the different methods by which such
property can be acquired. This is a matter of importance, spec-
ially to those contemplating an agricultural pursuit since they
must possess themselves of land before they can follow their pro-
fession.

1. The Two Ways of Obtaining Land. There are two
ways of acquiring the title to land, namely, by Descent,—as where
a man upon the death of his ancestor inherits his property as heir
at law,—and by Purchase, which in a broad meaning given to that
term by law writers, includes every other legal method except
descent. The first is of use only to those fortunate individuals
who happen to be the heirs of landed ancestors not likely to make
wills. See Chapter on Descent of Real Property.

The second includes not only what is commonly meant by the
term purchase, namely, buying land, but a dozen or more other
ways, only a few of which it is necessary now in America to
consider. Among these are possession and limitation, accretion,
prescription, and estoppel.

8
18 MANUAL OF THE LAW.

 

2. Title by Possession. The mere naked possession of land
will under certain circumstances give absolute title to it in fee-
simple. That is to say, the man who is in possession of land—
who is living on it or exercising control over it—is regarded by
the law as the owner of it, to the extent at least that no one can
dispossess him without showing a title of a higher and better char-
acter. This must be done within a certain time, for in all of the
States there is what is called a statute of limitations, which for
the peace and quiet of community does ‘not allow an action to be
brought or the title to land to be disturbed after the lapse of a
certain number of years. If, therefore, one claiming title does not
properly assert it within the time limited, he loses the right to do
so, and thus the mere possession may develop into perfect title,
«“Squatters” sometimes get title to land in this way, and their title
when thus perfected is as good as any. But it must be remem-
bered that in order to get title by possession merely, certain condi-
tions must be complied with. The possession must be actual,
open, notorious, and under a claim of right. It must have been
continuous during the whole of the period prescribed by the
statute of limitations, and it must not have been under license or a
lease for that would obviously defeat the title. The period fixed
by the statute of limitations is not the same in all States. It is
generally twenty years; in some States fifteen, and in a few only
ten. The limitation will not apply as against one who is under
any legal disability, as one who is insane or one who is under
twenty-one years of age. If the land belongs to such a person it
must be adversely held during the period prescribed by the statute
after such disability is removed in order to get a title that will hold
against him. Neither will the limitation apply as against a State
or the United States, so that title to public lands can not be
acquired by possession. Those who “squat” on the public
domain therefore have to “move on” when the lands they occupy
are sold by the government. It is to this class of people that the
term “squatters” is most commonly applied.

It will be seen that mere possession is rather a precarious means
of acquiring title to lands; and it will become more so as lands
become more valuable. In an early day when lands were very
cheap speculators sometimes bought large tracts, portions of which
they sometimes abandoned. Lumbermen often “let their lands
go” after having taken off the timber. Such lands were gener-
ACQUIREMENT OF REAL ESTATE. 19

 

ally sold by the State for non-payment of taxes, and the pur-,
chasers took possession, and by that possession got good title.
Theoretically their tax deeds gave them good title; but practi-
cally it has been found that tax deeds in most of the States are
generally worthless, (see Chapter XXIV) hence possession as a
means of getting title has been often resorted to in aid of the title -
given by tax deeds.

8. Accretion. Title to land may also be acquired by accre-
tion, which is the gradual addition, through natural causes, of
particles of soil to that already possessed by the owner, If one
owns a farm bordering on a body of water which gradually
deposits a/dwvion or sediment upon his shore, the additions so
made belong to him even though they amount to many acres in
the course of his life. Farms lying along many of the western
streams have been in many cases largely added to as well as taken
from by this means. Such gain or loss falls upon the owners of
the farms. But the additions so made must be gradual and imper-
ceptible or the rule will not apply. If they come by any sudden
convulsion, as by the entire change in the course of a river caused
by a flood or the like, then the boundary line remains where it
was before. As a general rule farms lying along fresh water

~ streams are held to extend to the middle or thread of the channel.
That is, the land under the water belongs to the owners of the
adjacent farms. In such case if an island forms between the
middle of the stream and the shore, it belongs to the farm on that
shore. If an island forms directly in the middle of the streams
then it belongs equally to the two opposite owners. Questions of
much nicety have arisen upon this point concerning the lands
along the Mississippi river. They have been decided so far as
possible according to the doctrine as stated above.

4. Prescription. Title to real estate may be acquired by
prescription, which is very much like possession and limitation,
except that this term is strictly only used with reference to incor-
poreal interests in land—like easements or rights of way, water
privileges, etc.—and not to the land itself. If one has used and
claimed to own an easement for a long period of time, such use
of it under claim of right will give him title to it by prescription.
The period of time is fixed by the statutes of the various States,
and is the same as that fixed for all real estate claims.
20 MANUAL OF THE LAW.

 

5. Estoppel. Title by estoppel is rather too technical a sub-
ject for full consideration in a popular treatise, and nothing more
than a brief attempt to give a general idea of it will be under-
taken here. Estoppel may be said to be a preclusion, in law,
which prevents a man from asserting or denying a fact because of
his previous acts or statements. It is the principle of law which
will not allow a man to defeat his own acts or deny his own
words to the injury or prejudice of another who may have been
influenced thereby. An actual case will best illustrate the matter.
Thus a Mr. Spiller once wished to purchase a certain lot of land
in Vermont, and he went to a Mr. Scribner who owned the land
adjoining and inquired where the boundary line ran. Mr. Scrib-
ner, knowing that the inquiry was made with a view of purchas-
ing, pointed out the boundary. Mr. Spiller bought the land and
put a fence on the line as it had been pointed out. Afterwards Mr.
Scribner sought to show that the boundary line as so established
was not correct, and that Mr. Spiller had fenced in a strip of his
land which he wanted back. But the court said that Mr. Scrib-
ner must not go back on his word like that, and that he was
estopped from asserting that the line pointed out by him was not
the true line. So he lost some of his land by his careless or
erroneous statements about the boundary, and Mr. Spiller got the
title to it by estoppel. (1.) This one case will illustrate, as well as
a hundred that might be cited, the idea involved in estoppel.

6. Public Grant. By this is meant the method of creating
title in an individual to lands belonging to the government. The
United States Government has possessed, and does now possess, an
enormous amount of lands. At the time of the adoption of the
Federal Constitution, all the territory within the present limits of
the Union which had belonged to the British Government, became
the property of the general government as successor to the British
Crown. Large regions claimed by New York, Virginia, Con-
necticut, and other States, including all that country lying north
of the Ohio river, formerly known as the “northwest territory,”
and other tracts, were ceded to the general government, and these,
with the more recent acquisitions made by the purchase of Louisi-
ana, Florida, and Alaska, have made up the vast quantity of lands
which the government has been gradually disposing of. A great
amount of these lands has been given to the States for educational

(1.) Spiller v. Scribner, 36 Vermont, 245.

 
ACQUIREMENT OF REAL ESTATE. a1

 

purposes; enormous grants have been made to various railroad com-
panies to encourage the building of railways; very many have been
sold at public sale; others by private ezéry as it is called, upon appli-
cation made to the Registers of the land offices in the various dis-
tricts where the lands lie; still others have been selected by the Hold-
ers of warrants from the government, given for meritorious service,
or as bounties, etc., while an immense amount of them have been
disposed of under the homestead, pre-emption, and tree-culture
acts. As the last mentioned methods are specially important to
those wishing a small portion of the public domain for agricultural
purposes, it will be well to consider pretty fully the question of

7. How to Get a Farm from Uncle Sam. This kind hearted
old fellow is very generous with his lands. He will sell them
cheap, usually at $1.25 per acre, and if the purchaser doesn’t
want to pay “cash down,” he will give him time and not charge
any interest; or if the purchaser hasn’t any money or doesn’t want
to spend any money, he will give him a farm outright, and a very
good one, too. In addition to this he will give him another farm
of 160 acres out on some of the prairies if he will plant and make
grow a certain number of trees upon it. What greater generosity
could be wished? Let us see how to take advantage of it:

8. By Purchase from the Government, The lands com-
prising the public domain are classed, by the laws relating to their
disposal, under several heads as follows: Agricultural lands,
mineral lands, saline lands, desert lands and coal lands. The
agricultural lands are held at $1.25 and $2.50 per acre. The
great bulk of them are held at the former figure; the latter figure
is placed upon those lying along railroads and other internal
improvements where the alternate sections have been granted to
the companies prosecuting such improvement. The sale of the
agricultural lands has been and is from time to time authorized by
Congress. So soon as there is any demand for them it is the
policy of the government to have them placed on sale. But
sometimes lands are held open to pre-emption and homestead
entry which are withheld from sale. This is the case with the
lands in the Dakota and other western districts where it is desired
to encourage actual settlement and cultivation, and to prevent
speculators from buying up the lands and holding them for a rise,
a thing which often retards the development of a country.
22 MANUAL OF THE LAW.

 

When lands are authorized to be sold the President of the
United States makes proclamation to that effect, describing the lands
and giving the date and place of sale. Advertisement of the sale
is made, in some newspaper published in the State or Territory
where the lands lie, for three or six months prior to the sale. The
lands are then offered to the highest bidder in half-quarter sections,
but none are sold at less than $1.25 per acre. Anybody can buy
tas much land as he chooses to bid off, but he must make complete
'yayment therefor on the day of purchase. Credit cannot be given
at a public sale—not even for a single day. IZ the purchaser fails
to make payment on the day of purchase, the tract bid off by him is
again offered at public sale on the next day of sale, and such person
is not allowed to bid on it again, or on any other lands offered at
that sale. (1.) All the lands so advertised for sale which remain
unsold at the close of the public sale, are held subject to be sold at
private sale, by entry at the land office, at $1.25 per acre. Public
sales are kept open for two weeks. So much for public sales.

When lands are purchased at private entry, the person desiring
to purchase must furnish the Register of the District Land Office
a written memorandum signed by him describing the lands by sec-
tion, half-section or quarter-section, as the case may be, which he
desires to buy. When application is so made by two or more per-
sons for the same tract at the same time, the Register determines
the preference by forthwith offering the lands to the highest bidder.
The purchase price of the land must be paid at time of making
entry. When the payment is made a certificate to that effect is
given to the purchaser, which certificate has the effect legally
of vesting the title to the land in the purchaser. A United States
patent for the land duly signed by the President, or by a secretary
appointed to sign his name, is delivered to the purchaser upon sur-
render of the certificate; but the certificate is regarded by the
courts as of as high a nature as evidence of title as the patent itself.
(2.) Still the patent is presumptive evidence of the regularity of
all the proceedings (3) and it should always be procured and put
on record in the county where the lands lie. Any person can buy
as much land as he chooses by private entry; but lands cannot be
so sold unless they have first been offered at public sale. Conse-

 

ackson v. Wilcox, 1 Scammon, 344.

1.) See U. S. Revised Statutes 2356; Mathews v. Zane, 7 Wheaton 164,
arry v. Gamble, 8 Mo., 88.

2.
3.
ACQUIREMENT OF REAL ESTA1E, 23

 

quently, in those districts where the lands have not been offered at
public sale, it is not possible to buy lands from the government at
all, The only way to get them in such places is by pre-emption
or homestead entry, or in some districts by tree culture.

9. Pre-emption. The pre-emption system of disposing of the
public lands has been one of slow development. It arose mainly
from the necessities of settlers, and the desire of government to
assist those who wished to make homes for themselves and their
families upon the public lands, The system is really a premium
in favor of and a reward for making an actual settlement and a
home in a new and unsettled country. The present system is the
result of about sixty years of experimenting under numerous acts
of Congress, having at first only local application, but gradually
extending until now the system is practically universal in this
country. Its benefits are extended to any citizen of the United
States, or person who has declared his intention to become such
under the naturalization laws, who is the head of a family, or is
over twenty-one years of age, who actually resides upon the tract
claimed, and who does not own 320 acres of land in any State or
Territory. A widow is entitled to the benefit of the act, or a
single man or woman, if over twenty-one years old, or a man
under twenty-one years of age if he is the head of a family. And
here it may be remarked that women stand practically on a par
with men so far as the United States land laws are concerned.
There is really no distinction on account of sex. Any person pos-
sessing these qualifications and desiring to “ pre-empt” land may
pick out and settle upon such a place on the unoccupied public
domain as he likes. He must then, within thirty days, go to the
United States land office for the district in which the lands lie and
file with the Register a written statement describing the land settled
upon by the proper surveyor’s description, not exceeding a quarter
section, and declaring his intention to claim the same under the pre-
emption laws. He must then inhabit and improve the same in
good faith. A person can only use the pre-emption right once,
nor can he remove from land of his own to reside on the public
land in the same State or Territory. Within twelve months from
the date of settlement the pre-emptor must make proof of such
settlement, etc., and pay for the land the minimum price of $1.25
per acre. This is the case where the settlement is made upon land
which is subject to private entry at $1.25 per acre. If the settle-
24 MANUAL OF THE LAW.

 

ment is made upon surveyed land which has not yet been offered
at public sale, and hence made subject to private entry, the pre-
emptor has three months in which to file his declaratory statement
and thirty-three months in which to make final proof and payment.
This making proof consists of the pre-emptor’s going to the
United States Land Office for the district in which the land lies
and making oath before the Register or Receiver that he has never
had the benefit of any right of pre-emption; that he is not the
_ wner of 320 acres of land in any State or Territory; that he is
not making his settlement upon the land he seeks to procure in
order to sell the same on speculation, but in good faith to appropri-
ate it to his own exclusive use; and that he has not directly or indi-
rectly made any agreement in any manner by which the title shall
inure in whole or in part to the benefit of anybody except himself.
He then receives his certificate for the land. Any person swearing
falsely forfeits all right to the land and to the purchase money
paid, besides becoming liable to prosecution under the criminal
laws of the United States.

All the public lands belonging to the United States, the Indian
title to which has been extinguished, are subject to pre-emption,
except those included in any reservation, those within the limits of.
any city or selected as the site of any city or town, those occupied
for the purposes of trade or commerce and not for agriculture, and
lands on which are situated known saline mines. All others,
including the unsurveyed lands of the distant west, are subject to
pre-emption. If one settles upon these western unsurveyed lands
he need not file his “declaratory statement ” until three months
from the time the survey is made and the plat filed in the district
land office, and he is allowed thirty-three months from that time in
which to make final proof and payment. This is the case, even
though the survey is not made for several years after he has made
his settlement. Such a settler must “ watch out” for the surveyors
and see to it that within three months after they come along he has
his declaratory statement duly filed. If he fails to file his state-
ment within the time prescribed he may lose his rights, for it ren-
ders the land liable for the claim of an adverse settler who does file
a statement within the proper time. So, too, if he fails to make
final proof and payment within the required time the land is ren-
dered subject to appropriation by the first legal applicant. If it is
more convenient for the pre-emptor to make his final pre 2f before
ACQUIREMENT OF REAL ESTATE. 35

 

the clerk of the county court or of any court of record in the
county and district where the lands lie, he may do so. If the
lands lie in an unorganized county the proof may be so made in
any adjacent county in the same State or Territory. The proof
when made is at once transmitted by the clerk of the court to the
Register and Receiver with the proper fees and charges. In all
cases before the proof is made the pre-emptor must give writter
notice of his intention to make such proof, stating therein t'.e
description of the land, and giving the names of at least two credi-
ble witnesses who will also swear to the necessary facts. Upon
receiving such a statement the Register publishes a notice that such
application has been made, once a week for thirty days in some
newspaper published near the land, and also posts such notice in a
conspicuous place in his office. After the expiration of thirty
days the claimant is entitled to make the necessary proof; upon
making which and paying the minimum price of the land he
receives his certificate of purchase. This is in brief the procedure
required by the pre-emption system. It may be added, however,
that the proof of settlement, etc., must be such as is satisfactory to
the Register and Receiver. These officials are given a little dis-
cretion in order to enable them to detect and prevent fraud, and to
correct error. If they have suspicions in any case that fraud or
deceit is being practiced they can withhold the certificate until the
matter can be looked into. :

The quarter section pre-empted must be the one improved and
settled upon. But where by an error in the government survey
it was found that the house of the pre-emptor was not within the
tract for which he had paid, the court held that the Commissioner
of the Land Office could not for that reason set the sale aside. The
government was held to be bound by the original though erroneous
survey (I.)

10. The Homestead Act. This law is one of the grandest
pieces of legislation that the world has known. The idea of
granting free homes to everybody, a home and a farm for every-
one who asks, whether he be native or of foreign birth, patrician
or plebeian, of high or low degree,—the oppressed of every clime
and the poor of every nation, is indeed a sublime conception. It
was thought of and talked of long before it agsumed vital force.

 

(s-) Lindsey v. Hawes et. al., 2 Black, 554.
26 , MANUAL OF THE LAW.

 

It became a political question in 1852 when it was embodied in the
platform of the “ Free Soil” Democracy in national convention at
Pittsburg in that year. Agitation upon it was constant for ten years
until it became a law in 1862. This was without doubt the most
important step in the history of our public land system, and its
beneficial effects can hardly be estimated. ‘The number of persons
who availed themselves of its benefits, and who established homes
for themselves and their families under its operation from the time
it went into effect in 1862 until June 30, 1880, reached nearly half

~a million (469,782), and the area embraced by the farms so created
and brought into fertile production was nearly fifty-six millions of
acres. What a grand result to be accomplished in eighteen years!
The number of entries made under this law during the past three
years have been larger than during any other period of equal
length. During the year ending June 30, 1883, 56,565 homesteads
were entered and 8,171,914 acres turned into the “home farms”
of happy and prosperous citizens.

The homestead law may be regarded as the crowning glory of
our public land system, a system purely American in its origin and
development. Fostered in its infancy by the matchless ability and
genius of Alexander Hamilton, aided by the experience of Jeffer-
son and Madison, and developed in its details under the careful
watchfulness of our brightest statesmen, it stands to-day as the
concentrated wisdom of legislation for the settlement of the public
lands. It is good because it develops our new territory, benefits
the most worthy and the most needy, builds up prosperous com-
munities, and lessens the dangers of social and civil evils by giving
the ownership of the soil in small tracts to its actual occupants.

To get a farm by this method a person must be the head of a
family, or must be over 21 years old, and must be a citizen of the
United States, or must have declared his intention to become such.
A woman over 21 years old is eligible to this benefit, or if she is a
widow and the head of a family she is qualified even though she
be not yet twenty-one. There is no distinction on account of sex.
Any such person is entitled to enter a quarter section or less of any
unappropriated public land subject to private entry at $1.25 per
acre, or eighty acres of land subject to private entry at $2.50 per
acre. The person applying for the benefit of the homestead law
must make affidavit before the Register of the proper land office
that he is 21 years old or over, or is the head of a family, or has
ACQUIREMENT OF REAL ESTATE, 27

 

performed service in the United States army or navy, and that his
application is made for his own exclusive benefit, and for the pur-
pose of actual settlement. On filing such an affidavit and paying
the required office fee he is permitted to enter a homestead claim
of 80 or 160 acres as the case may be. Any person who has
entered land under the pre-emption method may change and pro-
ceed under the homestead method if he chooses to do so, and he
may have the time required to acquire title under the homestead
law computed from the time of his settlement on the land. Any
settler on the public land who has settled with the intention of
claiming the same under the homestead law has the same time in
which to file his application for a homestead that one does to file
his declaratory statement under the pre-emption law.

Having filed the required application the person must then
within six months establish his residence in a house upon the land,
and must live there continuously for five years; that is to say, he
must make it his doza fide residence for that length of time. Of
course a temporary absence of a few weeks or months would not
vitiate the claim so long as the residence was actually there. But
a visit to the land for a few months every year would not satisfy
the law. The home of the claimant must be there and be kept
there in good faith. At the expiration of five years from the date
of entry, upon making due proof of residence, etc., the certificate
of ownership is issued. Notice of intention to make final proof
must be given in writing and filed with the Register, who pub-
lishes the same as in the case of making final proof under the pre-
emption law. The proof is made by affidavit before the Register
or receiver, but may, if more convenient, be made before the
judge, or, in his absence, the clerk of any court of record in the
county where the land lies, or in an adjoining county in the same
State or Territory if the land is in an unorganized county. If the
claimant dies before the five years expire the final proof may be
made by his widow; or if she, too, is dead, by his heirs or devisees
to whom the certificate will issue.

Under the homestead law a settler can, if he chooses, at the end
of six months from the time of entry, make proof of settlement
and improvement and get his land at the legal rate. Only a few
of the homestead settlers, however, have seen fit to use this privi-
lege. They prefer to live upon their land the five years required.
28 . MANUAL OF THE LAW.

 

11, Soldiers’ Homesteads, A union soldier or sailor of the
late war is entitled to a deduction from the five years ordinarily
required to get title, of the length of time that he served in the
army or navy, not exceeding four years. The soldier must live
upon the land at least one year. If the soldier is dead, his widow
has the same rights; or if she, too, is dead, or married again, then
the minor children of the soldier, if there are any, have the same
rights. The minor children must have a guardian duly appointed
to act for them. But neither the minor children nor the guardian
are required to live upon theland. If they cultivate it and improve
it during the time which the father would have been required to
live upon it that will do.

A soldier of the late war is given the additional privilege. of
filing a “declaratory statement” of his intention to claim a certain
tract under the homestead laws. This statement may be filed
either personally or by an agent, and the soldier is then allowed
six months in which to make his entry and settlement upon and
improvement of the land. Soldiers are also given certain other
minor privileges and benefits which can be better learned at the
district land offices than explained here. But the idea that soldiers
are entitled to land outright, or to the bounty land warrants, or that
title to government land can be obtained for them by agents or
attorneys, is entirely erroneous. Representations to the contrary
are false. Soldiers, beware of swindlers who offer to locate lands
for you. Go and do it yourselves, and you will certainly save
expense and possibly save being cheated. This remark applies to
any one getting land by the homestead or pre-emption method.
There is no need of employing an attorney to assist you. The
land office officials will see that you go straight. The Postmaster
General has excluded from the mails the circulars sent out by sev-
eral Washington and New York firms because of fraudulent rep-
resentations made in them that by paying a fee and executing a
power of attorney public lands can be located for soldiers. This
is only a villainous dodge to get the “fee.” The law provides
that homestead lands shall not be liable to execution for the debts
of the homesteader contracted prior to the issuing of the patent for
the land. U.S. Revised Statutes, 2296.

12. The Timber Culture Act. Land may now be obtained
‘from the United States government in return for planting eut

o
ACQUIREMENT OF REAL ESTATE. 29

 

trees in the treeless regions of the west. Public attention was
early called to this matter, and the necessity of legislation upon it
was urged soon after the extent and fertility of those treeless
plains and prairies were made known. Some of the western States
where this necessity was most apparent and most urgent began
giving bounties of various kinds for planting trees. Kansas did
much in this way, and in that and other States a day was set apart
as a public festival on which everybody engaged in setting out
trees. Many groves and banks of trees were in this way planted
which served as wind-breaks against the fierce prairie storms. The
lack of a source of fuel created apprehension, and this, with the
belief which became prevalent that forests cause an increase in
rain-fall, enable the soil longer to retain moisture, and tend to pro-
duce a more equal and beneficial distribution of water over the
surface of the country, kept the matter constantly in mind and made
it one of general public discussion. At last aid was solicited from
the general government, petitions began to pour in upon Congress,
and finally the timber culture act was passed in 1873. This act
has reference only to the treeless regions on the western plains
and prairies within certain limits, Under it any person who isa
citizen, or who has legally declared his intention to become such,
who is twenty-one or more years of age, or is the head of a family,
who shall plant, protect, and keep in a healthy growing condition
for eight years, at least ten acres of timber, on any quarter section
of the public lands within the above limits, is entitled to a patent
for the whole quarter section at the end of the eight years, on
making the required proof of such facts by two credible witnesses.
The act is liberal in its provisions; but a strict compliance with the
letter and spirit of the law is required.

The applicant must first go to the Register of the proper land
office and make entry of the land he wants; on doing so he is
required to make oath that the entry is made for the cultivation of
timber for his own use and benefit only, and that he intends to hold
and cultivate the land.

Where 160 acres are taken, at least five acres must be plowed
within one year from the date of entry. The following or second
year the five acres so plowed must be planted or cultivated in some
way, and another five acres must be plowed. The third year the
first five acres must be planted to trees or to tree seeds or cuttings,
and the second five acres must be cultivated in some way. Ths
30 MANUAL OF THE LAW.

 

fourth year the second five acres must be planted to trees or tree
seeds or cuttings, making at the end of the fourth year ten acres
planted to trees. They must then be carefully protected and culti-
vated in the best manner to promote their growth. If they die or
are destroyed by fire they must be replanted. Congress has
recently passed an act providing that if the trees or cuttings are
destroyed by grasshoppers or by extreme and unusual drouth for
any year or for a series of years, the time for planting such
trees may be extended one year or as many years as they are so
destroyed.

At the expiration of eight years from the date of entry final
proof may be made. It must be shown that for eight years trees
have been planted, protected, and carefully cultivated; that not less
than twenty-seven hundred trees were planted on each acre, and
that at the time of making proof there are at least six hundred and
seventy-five living and thrifty trees growing oneachacre. Perfect
good faith is required. If it is found that there has been any lack
of honest compliance with the law during any of the eight years
the entry willbe canceled. The trees must be of the kind properly
called timber trees. Cottonwood is recognized as such under the
rulings of the general land office. The claimant is not required to
reside on the land, but only to cultivate and protect the trees. He
can be at the same time acquiring title to another 160 acres under
the homestead law.

13. Mining Claims. Lands valuable for minerals are reserved
from sale, except as otherwise provided. But claims 1,500 feet
long extending along any vein or lode of quartz or other rock
bearing precious metals and reaching 300 feet each side of such
vein or lode may be taken up by any citizen of the United States
or any one who has declared his intention to become such, provid-
ing he does at least $100 worth of work on each claim in‘each
year. After at least $500 worth of work has been done on any
claim a patent will issue upon payment of $5 per acre and the land
office fees. The regulations made by the miners of any mining
district, when not in conflict with the laws of the United States, are
enforced as part of the laws regarding mining claims,

The subject of mining claims is one which fully treated would
more than fill this book. The above very brief reference is
deemed sufficient for a publication of this character.

Full directions as to how to proceed in all of these methods of
ACQUIREMENT OF REAL ESTATE, 31

 

getting land from the government will be given to any applicant
at any of the United States district land offices. Circulars of
instructions giving full information as to methods of procedure are
prepared under the direction of the Commissioner of the general ,
land office at Washington, are approved by the Secretary of the
Interior and sent to the local land offices for distribution to appli-
cants for land. Any person can get these circulars by applying
for them. The general land office at Washington is a bureau cf
the Department of the Interior presided over by an official styled
the Commissioner, who is responsible to his chief, the Secretary of
the Interior, which latter officer is a member of the President’s
cabinet. The district United States land offices are located all over
the country, one in each land district. There are now (1883) 104
of them. The older ones are gradually abolished as the lands in
the district become disposed of, and new ones are constantly created
as the demand for public lands spreads into new territory. Such
vacant tracts of public lands as may remain in Ohio, Indiana,
Illinois, and other States where the offices have been abolished, are
made subject to entry and location at the general land office at
Washington. The officials of a district land office are the Register
and Receiver. Their duties and responsibilities are independent of
each other. They receive certain fees as compensation.

14. The Fees of the District Land Office are as follows:

In Alabama, Arkansas, Dakota, Florida, Iowa, Kansas, Louisi-
ana, Missouri, Michigan, Minnesota, and Nebraska:

Filing declaratory statement for pre-emption claim,..... 2... 0.220. ee-eee $2 00
Filing final proof of pre-emption claim, 160 acres at $1.25.........--.--- 4 00
“ “ “ ‘“ “ “ 80 Cee TO) atk abe ch tease eae 2 00

“ “ “ “ “ “ 40 CE TEE oo tin st es em I 00
“6 “ « “ FOO) 48 ME BOGO. oe cccisscceiecee 8 00

“ “ 7 “ “ “ 80 EES AOE ae cee ci ale Ses eiextna 4 00

“o “ “ “ “ “ 40 EE BES ee ra herslaieber rately 2 00
Entering under homestead law 160 acres at $1.25 ...... ...000 -eeeee e---- 14 00
‘“é “ “ “ BO CE OG te ae ater tierce nenaihne Sicfacie 7 00

“ “ “ “ 4o “ “ SE seelw ddvorwistete ieinteteieie arsrevyetele: 6 00
Entering under homestead law a claim of 160 acres at $2.50.........----- 18 00
“ “ “ “ BE IES BO ER A = IG oe eo cae Seiciars 9 00

“ “ “ “ oe 75 8 Tf swewiowa ie esieisiow 7:00
Final proof under “ “ By ORE BGO MO, HE OE ssc ctarclener cates 4 00
“ a “ “ “ “ Bo « “ Mt. 2b beewecteistewtele’ 2 00
a “ 6 “ “ “ “ 4o “4  cseeiadses cecwee I 00

“ “a « “ “ 760 € & 28O cece ccsscesi 8 00
“ “6 “ “ i OE Bg ese Mer ie epernictaeuerelesenaie 4 00

“ “a 6 “ “ “ “ ao “ “ 2 00
32 MANUAL OF THE LAW.

 

In Arizona, California, Colorado, Idaho, Montana, Nevada,
New Mexico, Oregon, Utah, Washington, and Wyoming:

Filing declaratory statement pre-emption claim..... 1... ..cees sence eoeees $3 00

Filing final proof pre-emption claim, 160 acres at $1.25.... ee --eeeeeeee 6 oo

“ “ “ “ “ SG) SE ME ER ea pe cise 3 00

“ «“ “ “ “ 40 “« «“ OO ie ee Sioa éwacs “I '50

“ “ “ “ “ 160 “ « FSG cass cnawnn nes escee 12 00

“ “ “ “ “ 80 « “ Oh peek wen uie acacia 6 00

“ “ “ “ “ 4o “« « OG a papacy ene ate an eocetos 3 00

Entering under homestead law claim 160 acres at $1.25... ---2----e002-- 16 00

“ “ “ “ 80 « “ te ies wecewelesee 8 00

4M “ “ Mao ER rey ceed 6 50

“ “ “ “ 160 “« « DLO) scecocenees cose 22 00

a “ “ “ 80 « “ NEY ys cays Hatin Seuneee ee. II 090

<i “ “ “ 7 a en eS 8 oo

Final proof under 60) EE BS ccs eueoeseesocees 6 00

a “ “ “ “ 80 “« « MC coobweweawee eee ee 3 00

“ “ “ “a “ 40 8 OE csceescnsews ceeess I 50

“ “ «“s “ 160 4 EO BOW case wcceweceee Iz 00

“ “ “ “ “ 80 “ eat egooae eeeee 600

“ “ “o “ “ 40 “ “ MOE eB apes rie ed Bes tains 3 00
Under the Timber Culture act:

Entry fee160 -actes co ccncsescneeeaetee se seused weee wise teecice ccaincwe $14 00

Entry fee 80 acres... 2-2-2 ---- eeeee scene Gieeioe eens seeenerense ners 9 00

The fee for reducing testimony to writing in making final proof
in the Pacific States and Territories is 2214 cents per 100 words;
in all other States and Territories it is 15 cents per 100 words.

After having received the certificate for the land from the
Register of the District Land Office, the person receiving it can,
if the land was purchased, assign it to any one to whom he wishes
to sell the land, and in that case the patent will issue such assignee.
But a certificate obtained under the homestead, pre-emption, or
timber culture acts cannot be assigned. The patent must issue to
the person who has earned the land. If he wishes to sell he should
wait until he has obtained his patent. In order to obtain a patent,
the person holding a certificate surrenders it to the district land
office, from which it is forwarded to the general land office at
Washington, and in the course of a year or year and a half a
patent is sent back to the district office and is there given or mailed
to its owner. By sending the certificate directly to Washington
and employing an attorney there to hurry matters, the patent may
be obtained more quickly, But it is rarely necessary to do this.
It is, perhaps, needless to say that after a person has obtained his
patent he can do what he vleases with the land,
ACQUIREMENT OF REAL ESTATE. 33

 

UNITED STATES LAND PATENT.

The following is the form of a United States patent for a home-
stead of 160 acres:

The United States of America, to all to whom these presents shall come, greeting:

WHEREAS, There has been deposited in the General Land Office of the United
States a certificate of the Register of the Land Office at Topeka, Kansas, whereby
it appears that pursuant to the act of Congress, approved the 2oth day of May,
1862, “to secure homesteads to actual settlers on the public domain,” and the acts
supplementary thereto, the claim of Herbert M. Snow has been established and
duly consummated, in conformity to law, for the northwest quarter of section three
in town ten north, of range five east, in said State of Kansas, according to the
official plat of the survey of the said land, returned to the General Land Office by
the Surveyor General.

Now know ye, that there is, therefore, granted by the United States unto the said
Herbert M. Snow, the tract of land above described, to have and to hold the said
tract of land, with the appurtenances thereof unto the said Herbert M. Snow, and
to his heirs and assigns forever, subject to any vested and accrued water rights for
mining, agricultural, manufacturing, or other purposes, and rights to ditches and
reservoirs used in connection with such water right as may be recognized and
acknowledged by the local customs, laws, and decisions of courts, and also subject
to the right of the proprietor of a vein or lode to extract and remove his ore there-
from, should the same be found to penetrate or intersect the premises hereby
granted, as provided by law.

In testimony whereof I, Grover Cleveland, President of the United States of
America, have caused these letters to be made patent, and the seal of the General
Land Office to be hereunto affixed.

Given under my hand at the city of W28hington, the tenth day of April, in the
year of our Lord one thousand eight hundred and eighty-five, and of the independ-
ence of the United States, the one hundredth and ninth,

By the President. GROVER CLEVELAND.
es BYs.cceid Ue mweinSaiSiciciesnreeeeaia
{1 s.} Secretary.
nd

‘Joun SMITH,
Recorder of the General Land Office.

As soon as the patent is received it should be put on record in
the county where the land lies in accordance with the laws there
prevailing - regarding the recording of instruments affecting the
title to real estate.

15. Title by Office Grant. This is the term applied to the
means of acquiring title to land made by some officer of the law
where the owner of the land is either unwilling or unable to
execute the requisite deed to pass title. Among the cases falling
ander this head are levies, sales upon execution, sales by order or

4
34 MANUAL OF THE LAW.

 

decree of some court, sales upon foreclosure of mortgages, sales by
courts of probate and surrogate courts, sales by special acts of the
Legislature, sales under the provisions of statutes for the enforce-
ment of the collection of taxes, etc., etc. This method of acquir-
ing title to real estate is too technical and too varied to admit of
detail consideration here. Suffice it to say that where the title ta
property is conveyed against the will of the owner, or where he is
not a party to the proceeding, the statute, by virtue of which the
conveyance is made, must be strictly complied with. One purchas-
ing such a title should see to it that every requirement of law has
been observed. To illustrate: Where lands are sold for taxes the
owner of them is generally given no hearing nor voice in the matter;
it is purely an ex parte proceeding. The owner is utterly helpless
to prevent the loss of his property. In such a case no departure
from the exact letter of the law can be excused. Private property
can only be taken by “ due process of law,” which in all such cases
means an exact and absolute compliance with every provision of
the statute. Hence it happens that if anything is omitted, or any-
thing is overdone, the sale fails and the title so attempted to be con-
veyed is void. This is the explanation of the fact that tax deeds
are generally found to be worthless. The proceedings for making
them are usually somewhat complicated and the work is generally
done by persons unaccustomed to the accurate transaction of legal
business. Hence it is usually possible to find something wrong,—
some departure from the provisions of the law, which renders the
tax deed void,

With this general observation, and the exceptions which it
implies, the title acquired by Office Grant is just as valid and
effectual as if the owner had himself deeded the land by the ordi-
nary form.

16. Title by Private Grant. The term private grant is
applied to the ordinary ahd familiar method of acquiring title by
purchasing the land from an individual and receiving from him a
deed therefor. It is the most common and universal, and hence the
most important method of procuring land. Let us see how to pro-
ceed: Having found a farm that the would-be purchaser desires
to buy, and having agreed with its owner as to the price to be paid
for it, etc., it should be remembered that a mere verbal or unwrit-
ten bargain for the sale or purchase of land is not binding upon
ACQUIREMENT OF REAL ESTATE. 35

 

either party, and cannot be enforced by a law suit. Nor is an
offer to sell the land at a given price, even though made in writing,
binding upon the person so offering until actually accepted by the
buyer; and the offer may be withdrawn at any time before it is
accepted and notice of the acceptance given to the person offering.
(1.) It would not make any difference if the offer expressly gave
the purchaser a certain number of days in which to accept it. It
may still be retracted at any time before acceptance, although the
buyer had fully made up his mind to take the farm, and had gone
to great trouble and expense in buying implements or stock and
removing his family to the new place. He would have no remedy
for the injury so done him if the owner saw fit to change his mind
and refuse to complete the sale. Nor would it help him any if he
had made a part payment or even full payment of the purchase
money agreed upon. (2.) A payment of money is not enough to
bind an oral contract for the sale of land, as it will in the case of a
sale of chattles. And in some States even taking possession of
the land would not bind unless there had been some improvements
made upon it by the purchaser, or other arrangements made which
could not reasonably be compensated for in money damages; the
purchaser could not compel the seller to complete the sale, but
could only recover back the money paid and get damages for the
trouble he had been put to. (2.) But generally, however, where
parties have gone so far as to have delivered and accepted pos-
session, the court will decree a full performance of the contract.
All this and much more of the same sort that might be mentioned
is occasioned by what is known as the “ Statute of Frauds.” In
the twenty-ninth year of the reign of Charles II (1677) the
British Parliament passed this law, which requires that all convey-
ances of lands, and all contracts for the sale of lands or interests in
lands, in order to be binding so as to be sued upon, must be in
writing. Either the agreement or some memorandum, or note of
it, must be in writing and signed by the party to be charged with
it, or by some other person duly authorized to sign for him. This
statute also contained other provisions, some of which are consid-
ered in another part of this book (see chapter 25 on sales); but
this portion relating to real estate sales has been either adopted or
assumed as law throughout the American States. Perhaps no two of

4 4 Johns, 235.

 

2.) Hillv. pov 43 Penn., 170.
36 MANUAL OF THE LAW.

 

the statutes of the different States upon this point agree exactly in
all their provisions, and it is only possible to here give the generally
prevailing and nearly universal consequences of the law. It is
safe to say that if parties wish to proceed cautiously they should
never omit this memorandum. Its exact form is not a matter of
much consequence so long as it states clearly the agreement. The
form of memorandum given in the latter part of this book will
probably suffice in all instances.
CHAPTER IV.

OF DEEDS.

 

Definition of a Deed,
Requisites of a Deed.
Parties to a Deed.
The Consideration.
The Description,

Covenants in Deeds,
Execution of Deeds.
Delivery,

Recording Deeds.

Deeds Poll and by Indenture.

YP Ds
PO OID

~~

Having agreed upon the terms of a sale of real estate and desir-
ing to complete the same by passing the proper deed, it is import-
ant to carefully examine that instrument to see that it is in all
respects regular. This is usually equally important whether one
is selling or buying, for the trouble occasioned by a defective
instrument may fall as much upon one party as the other.

Before passing the deed, however, both the purchaser and the
seller should know that the latter has good title to the land; or, if
the title is defective, just what the defects are. This is a matter of
such prime importance that it is reserved for separate consideration
in the chapter next following.

As bearing upon the legal requisites of deeds of real estate it
may be observed that the title to lands can only be acquired or lost
according to the laws of the country or State in which the lands
are situated. (1.) Unlike some other written instruments which
sometimes carry with them wherever they go the laws of the place
where they were made, deeds must conform to the laws of the
place where the land conveyed by them lies. Where parties in one
State, therefore, are deeding lands lying in another, they should
look to it that they comply with the requirements of the latter
State. In some of the States, however, it is provided by statute
that a deed shall be valid in those States if it is executed in accord-

 

(t.) Clark vs. Graham, 6 Wheaton, 577.
38 MANUAL OF THE LAW.

 

ance with the laws of the State in which it is made. But this is
only an apparent exception to the rule above stated.

1. Definition of Deed. A deed is defined to be a writing
sealed and delivered. A more limited definition, complying more
nearly with the popular idea of a deed, is “a writing signed, sealed,
and delivered by which lands, tenements, and hereditaments are
conveyed for an estate not less than a freehold.” (1.) That is to
say, it is a written instrument conveying at least a life interest in
lands. Of course an estate for years might be conveyed by deed,
but it is usually conveyed by lease; so, too, a life estate might be
conveyed by lease; but this is only a difference of forms and terms
which are generally unimportant.

2. Requisites of a Deed. A deed should be written or printed,
or partly written and partly printed, in ink, on parchment or paper;
and it should be completely finished before it is delivered. It should
have proper and competent parties to it; should be made without
compulsion or restraint, and should cea'tain the usual formal parts,
which are as follows: 1. The $7ezzises, which embraces the
names of the parties and usually their residences, the consideration
for which the deed is given, and a careful description of the prop-
erty granted. 2. The abemdum, which defines the nature and
extent of the estate which the grantee istotake. 3. The redendum,
which is used when something is to be reserved to the grantor out
of the estate granted, as where land is conveyed subject to mortgage,
or aright of way across the land sold is reserved, etc. 4. The condi-
tion, when any is to be imposed upon the purchaser, as for instance
that he shall not put a slaughter house, or tannery, or bone yard, or
sell intoxicating liquors, upon the premises. 5. The covenants,
when such are agreed upon, which in the ordinary warranty deed
are three, viz.: that the grantor is well seized of the premises in
fee-simple,; that the premises are free from all incumbrances, and
that he will forever warrant and defend thesame. 6. The conclu-
ston, which mentions the execution of the instrument, its date, and
contains the signatures of the grantors, their seals, the signatures
of the witnesses, and the certificate of the acknowledgment of the
deed. No particular form of words or expressions are essential in
deeds, only that apt words for the conveyance of title should be
used, and the intention of the parties should be clear and distinct.

(1.) 2 Sharswood Blackstone, 294.
OF DEEDS. 39

 

At the close of this volume the various forms of deeds in common
use are given, and it is perhaps sufficient to say that one of these
established forms should be used. They may sound rather odd
and quaint, and there may seem to be some useless things in them,
but after all it is unsafe to depart from old established forms and
phrases that have been the product of many years, even centuries,
of use, have survived by reason of their natural fitness, arid have
so many times passed before the courts that their meaning is clearly
and certainly known. One does not want to try experiments in
literary style or composition at the risk of losing his money or his
farm. Even in those few States (1) that have by statute provided
very simple forms of deeds it is safer to follow the old stand-bys.

3. Parties to Deeds. These are the person selling who is
called the grantor, and the person buying called the grantee. The
grantor should be of full age (21 or over) and of sound mind,
otherwise his deed will not be binding as against him. Not so
with the grantee. A deed to him, even though he be a minor or
an insane person, will be good as against the grantor. If the
grantor be a married man his wife should always join in his deed.
Her name should appear following his at the beginning of the
deed, she should sign and acknowledge the deed, and the certificate
of acknowledgment should state that she is the wife of the grantor.
It is necessary that the wife should join in her husband’s deed in
order to cut off her right of dower in his property. This right of
dower is an inchoate interest which springs into existence upon the
death of the husband. It is the right to the use of one-third of
the husband’s real estate during the time which the wife survives
the husband. In the absence of a special statute enabling the wife
to bar her dower by separate deed, she can only do so by joining
in her hushand’s deed. Some of the States have such statutes,
(2.) In some of the States the “homestead laws” have had the
effect of making it necessary for the wife to join in her husband’s
deed, not merely to convey her dower, but to make the husband’s

 

(1.) The Legislature of Michigan has enacted that a deed worded as follows:
“A. B. conveys and warrants to C, D. the following premises,”—shall, if duly
signed, sealed, and acknowledged by the grantor, operate the same asa full war-
ranty deed. It is also provided that it is not necessary to use the word “ heirs” to
create an estate of inheritance. There is a similar provision concerning mortgages,
Laws Mich., 1881, page 227, The expediency of such legislation is questioned,

(2) See laws Michigan, Howell’s Statutes, 35745.
48 MANUAL OF THE LAW.

 

deed effectual to pass the property to the grantee. These home-
stead laws, so-called, of course only affect the family home. The
husband’s deed of any other land need not be joined in by the
wife except for the purpose of releasing her dower therein. If the
wife does not join in the husband’s deed the property conveyed
passes to the grantee subject to the wife’s dower. If she survives
her husband she can, immediately upon his death, institute proceed-
ings to have her third of the land, so conveyed, set off to her own
use during the remainder of her life.

If the grantor of the deed is a married woman, it is now not
generally necessary for the husband to join in the deed of her own
property. The “married women’s acts,” as they are called, which
have been passed in most of the States, enable married women to
deal with their own property, that which they had before they
were married and that which they subsequently acquire, just the
same as though they were unmarried. At the old common law
this could not be done, as the husband had an interest in the wife’s
real estate, and possessed the full ownership of all her personal
property which he reduced to his possession.

The deed of a corporation should contain the legal name of the
corporation at the beginning, and should be signed by its trustees,
president or other officer or agent appointed for that purpose, or by
its duly authorized attorney, and should bear the corporate seal.

Where a deed is made by an agent or attorney for another per-
son, the capacity in which such agent or attorney acts should
appear upon the instrument, and the authority necessary to enable
such agent or attorney to execute the instrument should be given
with the same formalities required in the execution of the deed
itself. That is to say, there must be a power of attorney duly
signed, sealed, witnessed, acknowledged, delivered, and recorded.

4, The Consideration. It is the custom to recite in the deed
the consideration upon which it is given, usually the price paid for
the land. It is not absolutely essential, however, that the exact
amount paid be inserted in the deed, or that any consideration be
expressed. An instrument under seal proves its own consideration,
so that a deed is good even though there be no actual considera-
tion, as is the case with a deed of gift. See page 7.

If the price agreed upon is inserted as the consideration in the
deed, and the receipt thereof is acknowledged, the grantor is not
bound by such a receipt; for if as a matter of fact the money was
OF DEEDS. “qi

 

not paid at the time of delivery of the deed, the grantor may sue
for it notwithstanding his receipt. The fact, however, that the
money was not paid would not invalidate the deed. Only that
part of the deed which is a receipt would be open to denial.

5. The Description. The description of the land conveyed
by the deed should be as minute and accurate as it is possible to
make it. It is well in giving the description to refer to previous
deeds by which the grantor obtained title. A deed thus referred
to becomes for most purposes a part of the deed referring. If the
description in previous deeds is not entirely correct, it may be
referred to and a correct description also given. If the land is
described by metes and bounds, and said to contain a given num-
ber of acres, the number of acres actually contained within the
boundaries as given, will govern even though they are less or more
than the number mentioned in the deed. So, too, 1f the land is
described as acertain quarter section containing 160 acres, the num-
ber of acres actually found within the quarter section according to
the government survey, will be the amount of land conveyed, no
matter whether it contain 170 acres or only 130 acres. While per-
fect accuracy in the description is very desirable, an imperfect or
loose description will not invalidate the deed if the intention of
the parties can be arrived at; and parol or verbal and extrinsic
evidence upon this point is generally admissible.

6. Covenants in Deeds. If a deed contains only the clauses
necessary to effect a transfer of the title to the land, it amounts to
only a guit-claim deed, It conveys the land, or all the right, title,
and interest which the grantor has in the land; but it does nothing
more than this. It does not warrant the title to the land, nor
enable the purchaser to recover anything from the seller in case
the title proves defective or worthless, and he loses the land.
Hence purchasers always desire a warranty deed if they can get it.
‘A warranty deed is one that contains, in addition to the clauses
necessary to work a transfer of title, certain personal undertakings
on the part of the grantor called covenants. These covenants are
generally as follows: The grantor agrees for himself, his heirs,
administrators, and assigns, that at the time of ensealing the deed
he is lawfully seized of the premises about to be conveyed in fee-
simple; that the premises are free from all incumbrances whatever;
that he, the grantor, has good right to sell the same to the grantee,
and that he will and his heirs, executors and administrators shall
423 MANUAL OF THE LAW.

 

warrant and defend the same to the grantee, his heirs and assigns
forever, against the lawful claims of all persons. The effect of
these covenants is to give the grantee or any person claiming under
or through him the right to fall back on the grantor for damages
if the title warranted by him proves worthless and the land is lost.
The covenant against incumbrances and the covenant that the
grantor is well seized of the premises are broken as soon as the
deed is given if at all) The grantee could not recover anything
more than nominal damages, however, until he had suffered some
actual damage, If the grantee, therefore, in a warranty deed,
were to discover an outstanding mortgage or other valid claim
against the property, his proper course would be to either pay the
mortgage or other claim, in which case he could recover the
amount so paid from the grantor, or else let the mortgage be fore-
closed, or the other claim mature into a paramount title, and he be
evicted or put off the land, in which case he could recover possibly
the purchase money he had paid with interest, or the value of the
land with the improvements he had put on and lost. The question
of the precise measure of damages in such cases, however, is not
very uniformly settled, differing somewhat in different States. The
covenant to warrant and defend has the effect of extending the
personal liability of the grantor into the future. He agrees for
himself and his heirs to defend the title conveyed against all law-
ful claims; and this agreement is made not only to the grantee but
to his heirs and assigns.. The covenant “runs with the land,” as
it is termed, and it binds the grantor and his representatives to all
subsequent holders of the land.

7. Execution of Deeds. This includes the sealing, signing,
witnessing, and acknowledgment. At the old common law the
sealing was the most important thing in the execution of a deed.
When the seal was properly affixed the instrument was regarded
as done, that is, it had become a deed. The matter of sealing was
then of much greater importance than it is now, because there
were no public systems of recording deeds, and the instruments
themselves had to be preserved as evidence of title, and proved in
case of controversy. In the eastern States the formality of seal-
ing is still required, and nothing short of a paper or wax seal
wafered on will satisfy the law; but in the western and southern
States generally a simple scroll of the pen or the letters L. S. are
sufficient. It is even enacted in some of the States that no deed
OF DEEDS. 43

 

shall be deemed invalid for want of a seal or scroll. The blank
forms of deeds kept for sale by the newsdealers have in the west-
ern States a printed seal upon them, which is ample to fulfill the
requirements of the law.

There should be a seal opposite the name of each person sign-
ing the deed; if, however, there is but one seal and several parties
signing, all of whom should also have sealed, this one seal will be
taken as the seal of each, and the deed will be good.

The deed should be witnessed in the manner required by the
local statute. Generally, two witnesses are required. They should
sign their names as such opposite the signatures of the grantors in
the manner shown in the forms. The object of witnessing is to
have some person whose attention has been called to the signing,
who may be called upon to prove the grantor’s signature if it ever
becomes necessary to do so. Any person, therefore, of sufficient
age and capacity to understand the nature of the act, can be
a competent witness. It is not good form, however, to have a per-
son who has an interest in the land conveyed, either present or
future, witness the deed. A wife should not witness the husband’s
signature, nor should the husband the wife’s. But these would not
be serious errors. Witnesses are not required in all of the States,
and some require but one.

The acknowledgment should be made before the proper official;
usually the statute designates any magistrate, justice or notary pub-
lic, who affixes a certificate to the deed that the party executing it
personally appeared before him and acknowledged the same to be
his free act and deed. In some States if the wife joins with her
husband in a deed the officer taking the acknowledgment is
required to examine the wife separately and apart from her hus-
band and ascertain if she has signed the deed of her own accord, and
without fear or compulsion from any one; and he must attach to
the instrument his certificate to that effect. This is a relic of bar-
barism which should be and happily is being abolished.

8. Delivery. After the deed has been entirely completed it
must be delivered to the grantee or his agent. It has no effect
until it is delivered, and it amounts, until delivery, to no more than
so much blank paper. If a man makes a deed and has it already
for delivery, and intends to deliver it at the first opportunity, but
suddenly dies before doing so, it is of no effect. Nor would it be
even though he had received the pay for the land intended to be
44 MANUAL OF THE LAW.

 

conveyed. If the deed is lost or stolen it becomes void. So, like-
wise, if it is taken from the grantor by force or fraud, compulsion
or deceit. The force, however, must be of a physical nature, as
moral force might not invalidate the delivery, as, for example, I have
a large claim against a man and I say to him “I must be paid at
once.” He says “I can’t pay—I have no money.” I say, “ You
have property; if you will give me a deed of a certain farm which
you own I will call the matter square; if you will not I shall sue
you at once and put you to mucl: Suuble.” Thus forced he gives
me the deed; and it is a valid deed, though obtained by a sort of
force.

A deed may be delivered in escrow, as it is called, that is, given
to a third party to be turned over to the grantee when certain con-
ditions have been fulfilled, or certain acts have been performed or
certain time has transpired. When the condition, whatever it may
be, has been performed, the deed beiongs to the grantee, and it
takes effect upon his receiving it the same as though the grantor
had delivered it to him personally.

9. Recording Deeds. In all of the States there are systems
for making a public record of all instruments affecting the title of
real estate, established and maintained for the purpose of giving
certainty and notoriety to title. Any deed which has been duly
and properly executed is admitted to record. It is the grantee’s
business to see to the recording, and he should see to it as soon as
he receives his deed. If he does not do this, he may lose his land
in consequence; for.an unrecorded deed is generally not good as
against a subsequent purchaser in good faith, To explain: Ifa
knave deeds me his farm and I do not put the deed on record, nor
do not take immediate possession of the land, and a little while
afterwards he deeds it to another who, finding it still standing of
record in his name buys in good faith, my deed would probably not
be good as against his. True, I would have a claim against the
knave for the money I had paid him, or I might put him in limbo
for his fraud; but in all probability my claim would be worthless, and
if I esate to proceed against him criminally, I would probably
find that he had run away. So, too, if A deeds me his farm and I
put the deed on record at 10 o’clock, and B, who is a creditor of
A’s, levies an attachment on the same same property which he pre-
sents for record at ten minutes before ten, I would probably lose
the land, And the same is true regarding mortgages, If I loan A
OF DEEDS. 45

 

$1,000 on his farm and neglect to record the mortgage, and B
afterwards loans $2,000 on the same farm and puts his mortgage
on record ahead of mine, B would probably have the first claim on
the land, and if the land were not valuable enough to satisfy both
mortgages, I might lose my money.

But a deed that is not recorded is always good as against the
grantor and his heirs. This would be true, also, were the deed not
witnessed, or were it incomplete in other technical requirements.
And it may be stated, as a general rule, that a deed which has not
been recorded is just as good as one which has, against any one who
knows of its execution and delivery. Even if one takes the land
by subsequent deed and pays full value for it, it will give him no
title if he had notice or knowledge of the unrecorded deed. As to
what amounts to notice the courts have generally held that pos-
session on the part of the grantee, if open and notorious, will give
the world notice of his rights there. But this is not always the
case, and it is not safe to rely upon it.

_ 10. Deeds Poll and by Indenture. There are two general
forms of deeds which should be explained. A deed poll is the
deed of one party only. It is worded in thisform: “I, John Doe,
of Dearborn, do hereby grant, bargain, and sell to Richard Roe,
etc.” This is the form in most common use in the New England
States. In the other States the general form of deed is an zzdent-
ure, so-called, which is a deed between two or more parties, com-
mencing in the manner following: “This indenture, made this
seee-s day of ......, between John Doe, of Dearborn, party of
the first part, and Richard Roe, of the same place, party of the
second part, witnesseth as follows, etc.” This difference is one
only of form. In a deed by indenture the wife of the grantor is
made a party to the deed; she is made one of the grantors if she
wishes to release her dower. In a deed poll the wife is not men-
tioned as a grantor, but in the closing clause of the deed her name
is mentioned, and it is stated that she signs the deed in token of her
relinquishment or release of dower. The forms will illustrate this.
Enough forms are given to show the differences in deeds in use in
different portions of the country, and also to satisfy the various
wants of parties in ordinary transactions. If no form suiting the
exact requirements of any given transaction can be found the one
nearest that desired can be readily altered to suit the emergency,
See index of forms.
CHAPTER V.

OF EXAMINING TITLE.

x, Genera! outline of the subjecy

In the preceding chapter the statement was made that every
person should, before accepting or giving a deed, be certain that.
the title to the land in question is straight and clear; or, if in any
way defective, just what the defects are. The importance of this
to the grantor rests in the fact that if he convey by the ordinary
warranty deed he becomes personally liable to the grantee, and to
all persons claiming under the grantee, if the title is not good. Ifany
valid claim is outstanding against the property the grantee may fall
back upon the grantor for all the damage that he is put to because
of it, If the grantor is dead, the grantee, or those claiming under
him, may proceed against the grantor’s estate.

To the grantee the importance of this matter rests in the fact
that if the title prove defective, and the grantor at the time is
pecuniarily irresponsible, he must bear the loss himself. Even if
the grantor be responsible he may have removed from the State,
or gone through bankruptcy, or other circumstances may make it
difficult or impossible to collect anything from him. All things
considered, it is more important for the grantee than for the grantor
to be positive that the title is good.

The examination of a title in order to be valuable is a task
‘requiring not only a great deal of painstaking care and laborious
diligence, but a thorough knowledge of real estate law. It is a
labor that the novice should not, as a rule, attempt. Better will it
be to employ the best lawyer of your acquaintance than to take
your chances on an uncertain title. I know that this is a matter
that has been much disregarded by purchasers, especially ir the
western States, where real estate has been cheap, the source of title
OF EXAMINING TITLE. 47

 

near, and the conveyances affecting any particular piece of property
generally few and simple. People have quite naturally come to
believe that anybody of ordinary intelligence could determine with
certainty the validity of a title. Not infrequently, however, have
men lost much of their hard earned savings by this over-confi-
dence, and the fact that sharpers have long successfully taken
advantage of it, is sufficient indication of the correctness of the
above statement that the task of examining a title is one that
should be confided only to capable and experienced hands. .

The work of looking up a title consists, in the first place, of
examining the records of the various instruments affecting the
ewnership of the land in question,—the deeds from the govern-
ment patent down; and the mortgages, attachments, liens, tax
claims, notices is pendens, etc., etc., if any there are,—to see that
the same are all properly discharged. In the second place the
work involves a looking into many extraneous facts—which do not
appear of record—for, as we shall presently see, a title may appear
perfectly clear of record, which in truth is very defective or
altogether void. The first part of the work is greatly facilitated
by what is called an adstract of title. Thisis a brief memorandum,
taken from the records, showing the various instruments on record
affecting the title to the land in question. Abstracts of title are
generally prepared by the recording officers, or by other persons
familiar with the records who make it a business to do such work.
They are not official documents, and they have no weight in deter-
mining a title. If they bear a certificate, as many of them do,
that the title is clear, such statement is really only the opinion of
the person making it, and has no legal weight. The abstract is a
valuable and almost indispensable help in the investigation, but it
is by no means conclusive evidence of what it discloses. The
following will illustrate the form of an

ABSTRACT OF TITLE

to the northwest quarter of section ten, town four south, of range
six east, Indiana.
United States {Pr Dated January 4, 1838; re-

to corded January 15, 1838, in Liber
William Smith. 4 of Deeds, page 76g.

William Smith Warranty Deed. Dated June 5, 1840;
to recorded June 6, 1840, in Liber 1o
Jacob Browning. 5 of Deeds, page 769. Duly executed.
48 MANUAL OF THE LAW.

 

Jacob Browning and Warranty Deed. Dated January 15,

Susan Browning, his wife, 1845, recorded January 20, 1845, in
to Liber 15 of Deeds, page 69. Duly
David Wilkins. executed,
Quit-claim Deed. Dated December
David Wilkins 21, 1865; recorded Dec. 30, 1865,
to in Liber 75 of Deeds on page 78.
Paul Jones, Executed in the State of Kentucky
i and duly certified.
Paul. Joucs Warranty Deed. Dated Feb
y Deed. Date ebruary
By Herbert Harvey, 10, 1875; recorded February 15,
His eect in fact, 1875, in Liber 197 of Deeds, on
. 1 ted.
John Brows. page 42. Duly execute
Paul Jones Mortgage, $1,000. Dated June 7,
to 1867; recorded same day in Liber
Hiram Hamlin. 49 of mortgages on page 88.

Satisfaction of above mortgage. Dat-
ed June 7, 1869; recorded June 9,
1869, in Liber 7 of Discharges,

page 77-

I hereby certify that the above are all of the instruments affect-
ing the land in the caption which are on record in my office. The
title seems to be perfect in John Brown.

PETER PORTER,
Register of Deeds.

The above abstract of title is much shorter and simpler than the
majority of them are. It is so straight forward, and shows with
such apparent certainty that the title in John Brown is clear and
perfect, that probably most purchasers would regard it as conclusive,
and would accept a deed from John Brown, and pay him the
money on it without the least suspicion of risk. Yet it is per-
*fectly possible that such an abstract, and the record which it refers
to, should exist, while John Brown’s title is defective or even void.
Further investigations will be necessary in order to insure entire
certainty. What these investigations shall be depends upon the
circumstances of each case; but taking the title, of which the
above is an abstract, a careful investigation would involve some-
thing like the following: Inquiries should be made from every
available source concerning the several grantors mentioned, with a
view of learning their connection with the land, and of establishing
beyond doubt their identity with the several grantees of the same

Hiram Hamlin
to
Paul Jones.
OF EXAMINING TITLE. 49

 

name. For it may be stated as a rule to which there is no exception
that the record never identifies the parties. Outside inquiry is abso-
lutely essential for this. There are many persons of the same
name, and it is very easy for one man to assume another’s name.
For instance, in the above case, the land was entered by William
Smith, who received the government patent therefor. If any
other William Smith than the one to whom the government con-
veyed should give a deed of it, or if any one should falsely assume
that name and so deed it, and the deed should be duly put on rec-
ord, it would of course pass no title to the land.

The deed or patent from the government seems to be all straight,
and such an instrument may generally be assumed to be correct.
Yet it is possible for a government patent to be void. The gov-
ernment may have previously deeded the land to some one else
and this patent may have been issued through mistake. If so, it
would convey no title.

It will be observed that in several of the deeds the wife of the
grantor, if he had one, did not join in the execution of the instru-
ment. Inquiry should be made as to whether William Smith and
David Wilkins were married, and if so, whether their wives were
living at the time the deeds were made. If they were, it is possi-
ble that there is a dower interest outstanding against the land. The
statute of limitations might not run as against a dower interest
until twenty years after the death of the husband. It is a very
long lived right, and it needs to be carefully looked out for in
examining title. And it should be remembered that where a dower
interest is released, as it appears to be in the deed from Browning,
it is essential that the execution and acknowledgment of the deed
by the wife are in due form, as required by the statute. A married
woman has, at common law, no general power to sell her contingent
right of dower during her marriage. It is only by virtue of so
statute that she can do this, and the statute must be strictly followed
or the deed may be void. See page 39.

The deeds of Smith, Browning, and Jones are referred to in the
abstract as “ warranty deeds,” but it is not safe to depend entirely
on that statement. They should be carefully examined all through
to see just what covenants they contain. If either contains only a
covenant against the grantor’s own acts (as is the case with some
warranty deeds so-called), it amounts really to but little more than
a quit-claim deed.
50 MANUAL OF THE LAW.

 

The deed from David Wallace is a quit-claim deed. Although
such a deed is, as we have seen, just as effectual to pass title, it
gives the grantee no remedy against the grantor in case the title
fails. If the grantor has perfect title it is all right, but if he has
not, it may be all wrong. The fact of there being a quit-claim
deed is at least a suspicious circumstance, and should put the inves-
tigator on his guard. If the grantor has no doubt of the validity
of his title he will generally not hesitate to give the ordinary war-
ranty deed, and if the purchaser is paying full value for the land he
will insist on receiving one. If a quit-claim deed is taken, there-
fore, it usually indicates that either the grantor is afraid of his title
or the purchaser is buying for less than full value and taking his
chances,

The Wilkins deed, it will be observed, was executed in the State
of Kentucky. Care must be taken to see that the provisions for
the recording of such deeds have been complied with. The laws
of the State where the land lies govern the methods and formali-
ties of its transfer, and it is possible that a deed may be perfectly
good in the State where it is made and still may be defective in the
State where the land it attempts to convey lies. In each of the
States there are statutory provisions for the authentication and
recording of deeds, etc., executed in other States or foreign
countries. These provisions must be substantially complied with,

The deed from Paul Jones is executed by his attorney in fact.
The question arises, was the attorney duly authorized? It will be
remembered (see page 40) that a power of attorney, in order to
enable the attorney to legally sell and deed a certain piece of land,
must be executed with all the formalities required for the execution
of the deed itself. It must be signed, sealed, witnessed, acknowl-
edged, delivered, and recorded. Its terms must be such as to
authorize the execution of this particular deed. It must be in
force at the time of making the deed, and care must be taken to see
that it has not been terminated. This may be done by an instru-
ment for the purpose, called a revocation of power of attorney,
and such an instrument may be found to have been duly executed
and recorded. If not so revoked, other things may have worked
& revocation,—as, for instance, the death of Jones, or his bank-
ruptcy or insanity.

The abstract shows but one mortgage upon the land, which
appears to be fully paid and discharged, and the Register certifies
OF EXAMINING TITLE. 5}

 

that there are no others. But it may be that there are mortgages
which are not recorded, which still may be valid claims against the
land. If any of the deeds refer to any unrecorded mortgages the
purchaser would be bound by the information or notice so given;
for it is a general rule that a man is regarded as duly notified of
whatever appears in the deeds or other instruments which consti-
tute his claim of title. And it makes no difference whether or not
he ever read the documents, or that he did not actually know their
contents. If, therefore, any of the deeds in the foregoing abstract
refers to an unrecorded mortgage or any other valid outstanding
claim against the land, the purchaser will probably take the prop-
erty subject to such claim.

All the deeds likewise need to be carefully looked through to see
that each of them contains the words necessary to pass full
title. As we have seen (page 13), it is necessary that the words
“and his heirs” should follow the name of the grantee, in order
to create an estate in fee-simple. If land is conveyed to “John
Doe and his heirs,” he will take a complete estate of inheritance or
the full ownership of the land; if it is conveyed to “John Doe”
simply, the word “ hezrs” not being used, he will take an estate
for life merely, and at his death the land will revert to the grantor
or his heirs. This is the old common law rule, and it is still in
force in most of the States. (1.) If any of the deeds do not con-
tain this word “heirs” it is possible that the property may, on the
death of some old party, vest at once in a stranger who will claim
his rights.

The record of all the deeds in the abstract needs to be examined
to see that the execution clause, and particularly the acknowledg-
ment and attestation of each, complies with the recording laws in
force at the time each was made. These recording laws provide
that deeds which are executed in accordance with the statute may
be recorded. If a deed, not executed in accordance with the statute
be recorded, such record cannot be used as evidence. The deeds
themselves may or may not be valid, but the record is a mere
nullity. If any be found defective in this regard the original docu-
ments should be obtained and either properly corrected or new ones
made.

The examination of a title upon this single point as to whether

 

(1.) Michigan and some other States have changed this by statute. Laws Mich-
igan, 1881, page 227.
52 MANUAL OF THE LAW.

 

the deeds conform to the laws governing their execution and rec-
ord is one requiring much labor and oftentimes research. The
laws bearing upon the point are not uniform in all the States, and
in each State they have been gradually changed from time to time.
For example, in Michigan these laws have been changed in some
particular every few years since 1787. Up to September 1, 1838,
two witnesses were required; from that time till May 20, 1839, no
‘witnesses were required; since then two witnesses have been
required. The acknowledgment must be before a judge of a
court of record, justice of the peace, or notary public; but from
time to time since 1850, other officials have been empowered to
take acknowledgments. Married women could only convey their
lands prior to 1855 by the joint deed of themseives and husbands.
Since that time they could convey their own property as if they
were unmarried. See page 4o.

Prior to 1877, a wife could bar her dower only by joining in the
deed of her husband; since that time she could do so by separate
deed to one who holds the husband’s title, provided the intent to
bar dower is expressed in such deed.

Curtesy was abolished in Michigan in 1855, prior to which time
the husband had to join in the wife’s deed to make it effectual.

The wife’s acknowledgment prior to 1840 had to be that she
executed the deed freely and without fear or compulsion from her
husband, and the acknowledging officer had to examine the wife
separate and apart from her husband. From 1840 to 1855 she
had to acknowledge. that she executed the deed freely and with-
out fear or compulsion from azy one. From 1855 down, the
acknowledgment to conveyances of her own property was to be
taken as if she were unmarried. From 1875 down, her acknowl-
edgment to a// instruments was to be taken as if she were unmar-

tried.

This enumeration of statutory provisions and changes might be
much longer continued, but the foregoing is sufficient to show the
extent of information and research necessary to pass with cer-
tainty upon the validity of the execution of a series of deeds con-
stituting a chain of title running over a number of years.

No tax claims, liens, notices “és pendens, or attachments are
referred to in the foregoing sample abstract; but these should
nevertheless be looked to, as the abstractor may not have thor-
oughly done so. A tax history or statement from the tax collec-
OF EXAMINING TITLE. 53

 

tor’s office showing whether or not all taxes assessed against the
land have been paid should be procured. It is customary for the
grantor to furnish this.

In addition to all that has so far been said, it is possible that
there may be other valid claims against the property, and claims,
too, which do not in any way appear on the record or in any of the
instruments constituting the claim of title. An easement, like a
right of way, or right of drainage, or right to flow water over or
dam it back upon the land, if such exists and is still in use, will be
good as against any purchaser. In fact, any valid claim which is
protected by actual use will not be lost by not appearing on record
or in any instrument. And claims which in their origin were not
valid may become so by being long enough actually used. For
instance, in the foregoing case, the abstract shows that the deed
from David Wallace was executed more than twenty years after
he obtained title. Wilkins does not seem to have had actual pos-
session of the land, as he resided in another State. Now suppose
that during that time some one under some pretext, good or bad,
had taken an adverse possession of the land and had kept it for 20
years? The effect would probably be to extinguish Wilkins’s title;
and all the deeds from that point down might be worthless.

All this illustrates the importance of making inquiry concerning
all persons who have ever been in possession of the land, and
under what claim of right.

A full discussion of this subject of the examination of title
would fill a volume, but the foregoing, it would seem, is sufficient
for a treatise of this character. It will at least indicate the cor-
rectness of what was said at the beginning of the chapter, namely,
that the labor of looking up a title is one that should be trusted
only to a good lawyer.
CHAPTER VI,

OF MORTGAGES.

 

1. Definition of a Mortgage. 9. Interest: Legal rates in different

2. Requisites of a Mortgage. States.

3. Equitable Mortgages. 10. Compound Interest.

4. Form of a Mortgage. 11. Usury,

5. Execution, Delivery, and 12, Assignment of Mortgages,
Recording. 13. Payment of Mortgages,

6. Power of Sale. 14. Discharge of Mortgages,

7, Insurance, 15. Redemption of Mortgages,

8. Taxes. 16, Foreclosure of Mortgages,

When a farm is bought or sold it very often happens that it is
mortgaged back to the granter by the purchaser for a part of the
purchase price. It is desirable, therefore, whether one is buying
or selling, that he know something of the legal character and inci-
dents of these instruments, to the end that he may protect himself
in his rights therein.

1. Definition of a Mortgage. A mortgage is a means of
securing the payment of adebt. It is a conveyance of property to
secure the payment of a debt or the performance of some other act
to become void if the debt is paid or the other act is performed.
A definition given by an eminent author is as follows: ‘A mort-
gage at common law may be defined to be an estate created by a
conveyance absolute in form but intended to secure the perform-
ance of some act, such as the payment of money or the like, by the
grantor or some other person, and to become void if the act is per-
formed agreeably with the terms prescribed at the time of making
the conveyance.” (1.)

There are in this country at the present time two opposite
theories or doctrines as to the nature of a mortgage, holding about

(1.) Washburn on Real Property, Chap. 16, 31.
OF MORTGAGES. 55

 

equal sway. According to one view, called the common law
doctrine, a mortgage, like a deed, conveys to the one taking it the
legal title to the land. It gives him the right of immediate pos-
session, and he really owns the land just as though it had been
deeded to him, except that his title is subject to be terminated by
the performance of some act,—usually the payment of money with
interest. If this act, whatever it may be, is duly performed, then
his estate ends and reverts to the party who gave the mortgage.
According to the other view, called the equitable doctrine, the debt
to be paid is regarded as the main thing. The land is security
merely. The person giving still retains the right of possession,
still holds the legal title and virtually owns the land but subject to
a claim which the party taking the mortgage has upon it to the
extent of the money he has loaned, or to the extent of the amount
mentioned in the instrument. Now these are only two ways of
looking at a mortgage. The instrument is really the same which-
ever way it is viewed. Under either view it is now necessary to
take certain legal steps before a mortgage can vest the full and
complete title in the one who takes it.

The parties to a mortgage are called the mortgagor and mort-
gagee; just as the parties to a deed are called the grantor and
grantee. Mortgages may be given of personal property as well as
of real estate; but in this chapter we will consider only real estate
mortgages.

The common law doctrine regarding mortgages prevails in the
eastern part of this country generally, and the equitable doctrine
prevails in the west. In all of the States east of the Mississippi
river, except New York, Michigan, Indiana, and Wisconsin in the
North, and South Carolina, Georgia and Florida in the South, the
old English doctrine that a mortgage conveys the legal title and
the right of possession prevails. It is also the doctrine of Missouri
and Arkansas. But in all the other States of the Union, including
New York, Michigan, and the rest of the excepted States above
mentioned, the equitable doctrine, that a mortgage gives simply a
lien on the land, but not the legal title nor the right of possession,
is everywhere in force.

It may seem strange that there should be this difference in the
theory of a mortgage, but it came about quite naturally. In early
times in England, where the common law doctrine was enforced,
often great hardships resulted from it. If the mortgagor failed to
56 MANUAL OF THE LAW.

 

perform the condition, failed to pay the money on the day speci-
fied, he lost his right todo so. He may have borrowed but a small
amount of money on a very valuable piece of land, but if by over-
sight or misfortune he failed to repay it on the appointed day he
lost all his rights in the land. So the Courts of Equity, which were
early established for the purpose of giving relief in cases where the
law was harsh and unjust began to give relief in these cases,
, Those courts looked upon a mortgage just as it really was—a
security for a debt; and they held that if the debtor could pay the
debt with interest he should be allowed to do so even if he were a
little late; that the creditor could not complain if he got back his
money with interest in a reasonable time, and that if he did so
receive it he must give back the security. In process of time this
relief granted by the courts of equity became generally recognized
as a legal right, and hence two views or doctrines concerning
mortgages sprang into existence. This right was called the right
to redeem, or the equity of redemption, and so carefully was it
guarded that a man was not permitted to lose it even by his own
agreement. And at the present time if a man agrees in the most
express terms that he will forfeit his right of redemption the courts
will not enforce such an agreement, but will give him the usual
time to redeem. The only way in which this right to redeem can
be lost, is by giving what is called a power of sale montgage.
This gives the mortgagee, in case the mortgage is not paid at the
time it expires, the right, after a certain number of days, to sell
the land (providing he takes precautions to secure a fair price for
it) and to retain out of the proceeds enough to pay the mortgage
debt, with interest and costs, and pay the balance over to the mort-
gageor. The courts have sanctioned this procedure.

In this country some of the States have by statute adopted the
equitable view of mortgages, while others, as we have seen, have
retained the old common law doctrine. The right to redeem is
recognized in all of them, and the period of redemption is fixed
in most at three years from the expiration of the mortgage, but in
some it is only one.

2. Requsites of a Mortgage. Any sort of a conveyance of
land which is made for the purpose of securing a debt or the per-
formance of some act, is a mortgage, and it matters but little what
the form of it is. If it is made in the form of an absolute deed,
and the grantee executes upon a separate piece of paper a defeas-
OF MORTGAGES. . 57

 

ance or agreement to reconvey, the two instruments together con-
stitute a mortgage. If an absolute deed is given, and a mere
verbal promise is made by the grantee to deed back again when
something is done, it may even then be but a mortgage. In this
latter case it is called an equitable mortgage.

3. Equitable Mortgage. There are many of this kind. For
instance if one attempts to make a mortgage, but fails to make it
properly so that it will hold in law, and receives a consideration
for it, it will be held to be an equitable mortgage. An agreement
to give a mortgage has many times been held to constitute an
equitable mortgage. (1.) A deposit of title deeds for the pur-
pose of securing a debt creates in England an equitable mortgage,
and the doctrine has been adopted to a limited extent in America.
A man who has sold land but has not received his pay for it, or
taken a formal mortgage back for the amount of it, has, in most
States, an equitable mortgage for whatever balance may be due
him. This is usually called a vendor’s lien. It obtains in Ala-
bama, Arkansas, California, Colorado, District Columbia, Florida,
Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Minne-
sota, Mississippi, Missouri, New Jersey, New York, Oregon, Ten-
nessee, Texas, and Wisconsin. When a man pays for land before
he gets his deed for it, he has, as to all persons who know of it, an
equitable mortgage on the land. A contract to sell land sometimes
amounts to an equitable mortgage of it.

This list of things which may constitute an equitable mortgage
might be extended, but the foregoing will illustrate the principle.
The design of this chapter is to treat of formal and legal mortga-
ges. All the above cases are, really and strictly speaking, not
mortgages but only what the courts of equity will hold as such for
the purpose of promoting justice or preventing injury or fraud.

4, Form of Mortgage. In form a mortgage is usually just
like a deed, with an additional clause called the defeasance which
provides that if the grantor pays a certain sum of money, or per-
forms some other obligation named, then it shall be void. The
style of this defeasance is usually like this: ‘ Provided, however,
that if the said A. B. (the grantor), his heirs, executors, or admin-
istrators, shall pay to the said C. D. (the grantee), his executors,
administrators or assigns, the sum of $__-_____, with interest

 

(1.) 20 Ohio, 464; 21 N, Y., 5815; 31 Cal. 321.
58 MANUAL OF THE LAW.

 

(semi-annually or otherwise, as agreed upon), on or before the
-ee. day of .... 183.., then this deed and also a certain prom-
issory note (or bond, as the case may be) signed by the said A. B.
and bearing even date herewith, shall be null and void, but other-
wise shall remain in full force.

It will be seen that so far as the form of a regular mortgage is
concerned it is really a deed upon condition, the condition being
the failure of the grantor to pay to the grantee a certain sum of
money. If the money is paid the deed becomes void. Mortgages
being so much like deeds, very much that was said respecting those
instruments in the chapter devoted to them applies with equal
force as to mortgages. Like a deed, a mortgage should be written
or printed on paper or parchment. The parties to it should pos-
sess the same legal capacity, as to age, etc., that is required of the
parties toa deed. The wife should join in her husband’s mort-
gage the same asin his deed. There should be in a mortgage the
same formal parts that are in a deed, the same careful description
of the mortgaged property, the same covenants for title, and in
addition to these, the defeasance clause above mentioned, and gen-
erally a power of sale clause, and often a tax, interest, and insur-
ance clause, referred to further on.

The consideration, or the debt secured by the mortgage, should
be carefully described, though it is not essential that it be described
with great particularity. A general description will do, and a
mortgage for an unknown sum, or an unliquidated indebtedness, is
good. For instance,a mortgage is often given to secure a run-
ning open account on which the amount due is constantly increas-
ing, and such mortgages are perfectly valid. But when the
amount is certain it is almost universally the custom to have a note
or bond accompany the mortgage. The note or bond are really a
part of the mortgage, they are construed together, and each may
be used in throwing light upon the other in case of doubt as to the
meaning of either. The note or bond is used also to secure the
personal liability of the mortgagor, so that if in case of foreclosure
the property should sell for an amount less than the debt, the mort-
gagor would be personally liable for the deficiency. He would
be liable for this deficiency anyway if the amount of it could be
clearly proved; but the note or bond places the matter beyond
all question, and does away with the necessity of other proof.
Besides, if the note or bond be assigned its consideration cannot
s

OF MORTGAGES. 59

 

generally be inquired into; the amount of the mortgage is thus
fixed beyond dispute.

5. Execution, Delivery, and Recording. The same obser-
vations are to be made concerning these sub-heads that occurred
under similar sub-heads in the chapter ondeeds. Like a deed, a mort-
gage should besigned, sealed, witnessed, and acknowledged, and the
same formalities in doing each of these things should be observed.
It should be delivered, and as soon as delivered should be placed
on record. The recording is for the protection of the mortgagee,
and he should see to it and bear the expense of it.

6. Power of Sale. It is now the general custom in this coun-
try to insert a ower of sale in mortgages. In England all mort-
gages contain this power by virtue of a statute to that effect, and
the States of Virginia and West Virginia have similar statutes.
A power of sale authorizes the mortgagee, on default in the con-
ditions of the mortgage, to sell the land, keep the amount of his
claim out of the proceeds, and turn the balance, if any there be, over
to the mortgagor. The main object of this is to do away with the
expense and delay of a suit in chancery, and to afford a more ready
and expeditious way of cutting off the mortgagor’s equity of
redemption. The validity of these powers of sale is everywhere
recognized. There are statutes in most of the States governing
the manner in which the sale shall be made.

7. Insurance Clause. It is very common now, where the
mortgaged property consists largely of buildings or other improve-
ments which may be destroyed by fire, to have a clause inserted in
the mortgage which provides that the mortgagor shall keep the
premises insured in a certain sum for the benefit of the mortgagee.
This is a valid provision, and a failure to comply with it will, if so

_ expressed in the instrument, amount to a default which will give
the mortgagee the right to foreclose. If there is no such clause
inserted, the mortgagee would have no right in case of loss to any
insurance which the mortgagor may have procured. (8 Paige, N.
Y., 4373; 20 Ohio, 185.) When a policy is taken out pursuant to
the provisions of an insurance clause, it should be assigned at once
to the mortgagee. If this is not done, however, the mortgagee
will, if there is an insurance clause in the mortgage, have an equit-
able lien on the proceeds of the policy. (44 N. Y., 42; 52 Ill,
442.) I£the policy of insurance provides, as is quite often the
case, that the loss, if any, shall be payable to the mortgagee, that
60 MANUAL OF THE LAW.

 

will amount to the same as an assignment of the policy. (17 N.
YY. 395+)

If a loss occurs and the amount of the policy falls due, the mort-
gagee is obliged to receive it and apply it to the reduction or
extinguishment of the mortgage debt. (45 Me., 447.) If it will
more than pay the debt the balance must go to the mortgagor.

8. Taxes. As it is as much for the interest of the mortgagee
as for the mortgagor that the taxes on the mortgaged property be
promptly paid, it is quite customary to insert in the mortgage a
clause providing that the mortgagor shall pay all taxes and assess-
ments levied upon the land, and that a failure to do so shall amount
to a default. Such a provision is valid. Sometimes it is provided
that if the mortgagor fails to pay the taxes the mortgagee may do
so and may add the amount so paid to the principal of the mort-
gage. Some courts have held that the mortgagee may do this
even if there is no provision to that effect, and that all amounts so
paid for taxes may be included in any judgment afterwards obtained
on the mortgage. (11 Kansas, 48.) A stipulation in the mort-
gage that a failure to pay taxes, procure and keep up insurance,
and to pay interest when due, shall cause the whole mortgage debt
to become immediately due and payable, is proper and valid. (44
Barb., N. Y., 336.)

9. Interest. The rate of interest which the mortgage is to
bear, and the time and place of paying it should be carefully stated
in the mortgage, and in the note or bond. It is a matter of much
importance to have these things definitely settled and stated in the
mortgage. If nothing is said about interest, the mortgage will not
bear interest till after it is due. If it simply says with interest, but
no rate of interest is mentioned in the mortgage, it will bear inter-
est at the rate provided by law. The law which governs will
in most cases be the law of the State where the parties live, though
if the parties live in one State and the land lies in another, and the
nortgage is to be paid in the latter State, the law of the latter
State might govern. But the fact that the land, which is given as
security for a debt, lies in another State, would not of itself take
the transaction out of the operation of the laws of the State where
the mortgage is made and the parties reside. (Story’s Conflict of
Laws, §287; 44 N. Y., 303.) If nothing is said about the place
of re-payment, the presumption is that the mortgage is to be paid
in the State where it is made, although the land mortgaged may
OF MORTGAGES. 61

 

lie in another State, and the laws of the State where the mortgage.
is made will govern as to the rate of interest, etc. (53 Barb, N.
Y., 350.) The law in force at the date of the mortgage will
govern the rate. If the law is changed after the mortgage is
made, the change will not affect it. (22 N. J. Eq. 444.)

The following are the legal rates of interest in the different
‘States, and the Territories of Arizona, New Mexico, and Okla-
homa:

Alabama.— 8 per cent.

Arizona.—7 per cent; but parties may contract for any rate.

Arkansas.— 6 percent. Parties may contract for any rate under 10 per cent.

California.—7 per cent. Parties may contract for any rate, simple or
compound.

Colorado.— 8 per cent.

Connecticut.— 6 per cent. Usury forfeits the interest.

Delaware.— 6 per cent. Usury forfeits whole loan.

District of Columbia.—6 per cent. Parties may contract for any rate
under 10 per cent. ,

Florida.— 8 per cent. Parties may contract for any rate under 10 percent.

Georgia.— 7 per cent. Parties may contract for any rate under 8 per cent.

Idaho.— 10 per cent; but parties may contract for any rate under 18 per cent.

Illinois.— 5 per cent. Parties may contract for any rate under 7 per cent,

Indiana.— 6 per cent. Parties may contract for any rate under 8 per cent.

Iowa.— Same as Indiana.

Kansas.— 6 percent; but parties may contract for any rate under 10 per
cent.

Kentucky.— 6 per cen?.

Louisiana.— 5 per cent. Parties may stipulate for 8 per cent and a higher
rate under certain circumstances.

Maine.— 6 per cent; but parties may agree in writing for any rate.

Maryland.— 6 per cent; any charge above that cannot be collected.

Massachusetts.— Same as Maine.

Michigan.— 6 per cent. Parties may agree in writing upon any rate not
aboye 10 per cent,

Minnesota.— 7 per cent. Parties may agree in writing for any rate under
10 per cent.

Mississippi.— Same as Michigan.

Missouri.— Same as Iowa.

Montana:—7 percent. Parties may contract for any rate.

Nebraska.— 6 percent. Parties may contract for any rate under 10 per cent.

Nevada.— Same as California.

New Hampshire.— 6 per cent. To charge more forfeits three times the
excess. ,

New Jersey.— 6 per cent. Usury forfeits all interest.

New Mexico.— 6 per cent; but parties may agree upon any rate under 12
per cent.

New York.— 6 per cent. Usury makes void the mortgage and note.

North Carolina.— 6 per cent.

North Dakota.— 6 per cent. Parties may contract for any rate under 12
per cent. :

Ohio.— Same as Iowa.
62 MANUAL OF THE LAW.

 

Oklahoma.—7 per cent. Parties may contract for any rate.

Oregon.— 8 per cent; but parties may contract for 10 per cent.

Pennsylvania.— 6 percent. If ahigher rate is charged it may be recovered
back.

Rhode Island.— 6 per cent; but parties may agree upon any rate.

South Carolina.—7 per cent; but parties may contract upon 8 per cent.

South Dakota.—7 per cent. Parties may contract for 12 per cent.

Tennessee.— 6 per cent.

Texas.— 8 percent; but parties may contract for 10 per cent.

Utah.— 8 per cent. Parties may contract for any rate.

Vermont.— 6 per cent. Anything above that cannot be collected.

Virginia.— 8 per cent.

Washington.—7 percent; but parties may contract for 12 per cent. ;

West Virginia.— 6 per cent.

Wisconsin.—7 per cent; but parties may contract for 10 per cent.

Wyoming.— 8 per cent. Parties may contract for 12 per cent.

If the mortgage does not state the time of paying interest, none
will fall due until the expiration of the mortgage, even though
that may be for a number of years. It has been held, however,
that where there was an understanding or parol agreement that
interest should be paid annually, it would become due, even
though the mortgage itself was silent upon the subject. But it
is customary and proper to have stated in the mortgage the times
at which interest shall be paid, as annually or semi-annually, or
the like. When there is such a provision, a failure to pay interest
at the time stated will amount to a default, which will give the
mortgagee the right to foreclose. This is the general rule. (2.
Verm., 135.) There may be some exceptions to it.

Ifthe mortgage does not state the place where interest shall be
paid, the general rule is that the mortgagor must find the mort-
gagee and pay him where heis. This is the reason why it is best
to have the mortgage provide where interest shall be paid.
Such provision may save the mortgagor a great deal of trouble.

10. Compound Interest cannot be enforced. The usury
laws of the different States generally prohibit it. If the interest _
is not paid when it falls due, interest on that unpaid interest is not
generally collectible. Still if an interest bearing note is given for
that interest it will be good. Hence it is quite often the case that
personsloaning money have interest couponsattached to the mort-
gage, or to the note or bond accompanying it,which couponsarein
effect promissory notes, and are held to draw interest after their
maturity. In some States there are statutory provisions that if
interest is not paid when it falls due it may be added to the prin-
cipal. This the Ohio law. (26 Ohio, 59.) It amounts to com-
pound interest. In Michigan interest is allowed on unpaid install-
OF MORTGAGES. 63

 

ments of interest at the same rate that the principal bears. (Comp.
Laws, Mich., page 541.) This is not compound interest, for only
simple interest can be computed on unpaid interest.

11. Usury. If a rate of interest higher than the law allows
is provided for in the mortgage, it is usurious and cannot be col-
lected. Formerly to charge usury worked a forfeiture of the
whole debt, and was punishable otherwise besides; but the laws in
this respect have undergone a great change, and now about all that
remains of their former stringency is a forfeiture merely of the
usury above the legal interest. Indeed, in some of the States there
are now no usury laws whatever, and parties may charge any rate
of interest they may see fit to agree upon. Such is the case in
Maine, Massachusetts, Rhode Island, South Carolina, Florida,
California, Nevada, Utah, Arizona, Montana, New Mexico, Wyom-
ing, and Washington Territory. In the States of Georgia, Con-
necticut, Indiana, Kansas, Maryland, Michigan, Minnesota, Missis-
sippi, Ohio, Pennsylvania, Tennessee, Texas, Vermont, West Vir-
ginia, any charge of interest above the legal rates simply forfeits
the excess. In Alabama, Illinois, Kentucky, Lousiana, Nebraska,
New Jersey, Virginia, Wisconsin, Dakota, and District of Colum-
bia, usury forfeits all interest. In New York, Delaware, North
Carolina, Arkansas, and Oregon, usury makes void the security.
In Missouri and Iowa to charge usury forfeits all interest and also
ten per cent of the principal. In Idaho three times the amount of
the interest is forfeited, and a fine of $100 is imposed for charging
usury. In North Carolina and Tennessee double the whole loan
is forfeited for charging usury, and the act is made punishable as a
misdemeanor.

12. Assignment of Mortgages. A mortgage, like any other
property, may be sold, and the transfer of the title to it is accom-
plished by what is called an assignment. A formal assignment is
accomplished by a short deed after the form given at the end of
this book. Such a document duly executed and delivered will
place the assignee or purchaser of the mortgage in exactly the
same position that the mortgagee occupied.

The note or bond should be endorsed over or made payable to
the assignee. The assignment should be recorded the same as a
mortgage.

13. Payment of Mortgages. A payment of the amount
due ona mortgage at the time the mortgage expires has the effect

6
64 MANUAL OF THE LAW,

 

of discharging it. If the payment, or tender of payment, is not
made until after the mortgage expires it does not have the same
effect. A reconveyance is then necessary in order to vest the estate
in the mortgagor. But in New York, Michigan, and some other
States a payment after the day named does discharge the mortgage
and no reconveyance is necessary. Payment cannot be made
before the mortgage is due, unless both parties agree to it, as neither
has the right to enforce it. The place of payment ought to be
mentioned in the mortgage. If it is not, the mortgagor is obliged
to seek out the mortgagee and make payment where he can find
him, the same as in the case of interest. If no time of payment
of the mortgage is mentioned, the debt is payable on demand of
either party.

If a legal tender of payment is made and refused interest will
cease to run from that time. (42 Md., 192.) A tender to be
good must be absolute, unconditional, and strictly within the terms
of the mortgage. That is to say, the full amount due and no
more must be offered in lawful money at just the right time, and
it must be offered unconditionally. If it is refused, interest will
cease at once. But the tender must be kept good, for if the mort-
gagee changes his mind he can still claim his money. IE it is then
not ready for him, interest will commence again. When a pay-
ment is made on a mortgage which is not sufficient to liquidate the
debt, it is tc be first applied to the payment of the interest due, and
the balance is to be applied on the principal. (1 Clark N. Y.,
47°.)

If payment of the mortgage debt is not made within twenty
years from the time it fell due the mortgage expires by operation
of law and payment cannot then be collected. The mortgage
“outlaws” as itistermed, The statute of limitations operates and
prevents any action being brought upon it. The presumption is
that it has been paid. This presumption, however, does not arise
if there has been any admission of the debt any time during the
twenty years,—as, for instance, the payment of any interest or
principal within that time, or the commencement of a foreclosure
suit. In some of the States a period less than twenty years is
fixed by statute, and even without any statute nineteen years has
several times been held as such a lapse of time as created a pre-
sumption of payment, (10 Johns, N. Y., 381; 15 Fla. 180.)

14. Discharge of Mortgages. When the mortgage has been
OF MORTGAGES. 65

 

paid it is the duty of the mortgagee to execute the proper instru-
ment discharging it. Payment, if properly made, will of itself
discharge the mortgage in equity; but this alone does not give the
means of discharging it on the records. Provision is generally
made by statute for the discharge of the mortgage when paid
either by a brief entry on the margin of the record of the mort-
gage signed by the holder of it, or by his executing an instrument
called a satisfaction of mortgage, which is recorded at length in
the public records.

If the mortgagee or holder of the mortgage refuses to thus dis-
charge a mortgage which has been paid, he is made liable for the
payment of a penalty to the mortgagor, varying in amount in the
different States from $100 to the full amount of the mortgage.

15. Redemption of a Mortgage. As has already been stated,
it used to be the rule that if a mortgage was not paid at the time
it was due the mortgagor had no right to pay it afterwards. No
matter how small the mortgage debt or how great the value of the
property, if the mortgagor did not pay on the day named he lost
his property. The title to it became by operation of law absolute
in the mortgagee the moment there was a default. During the
last two hundred years the hardship of this rule has been greatly
modified. A period is now always allowed in which the mort-
gageor may redeem his property on payment of the mortgage
debt with interest and expenses. This right or equity of redemp-
tion is so zealously guarded by the courts that a man is not per-
mitted to lose it even by the most deliberate and strongly expressed
agreement. It can only be cut off by lapse of time and by /ore-
closure. The time varies in the different States. In New York
and Wisconsin it is ten years. After a foreclosure and sale there
is in some of the States a further period of redemption varying
from sixty days to six years.

16. Foreclosure of Mortgages. A foreclosure of a mort-
gage is a proceeding in a proper court by which the mortgagor’s
right of redemption is barred or forever closed. It is usually done
by filing a bill in chancery calling upon the mortgagor to come
into court and redeem his mortgaged premises, on failure of which
he loses his right to do so. If the mortgage is not paid when it
matures, or if the interest is not paid at the time specified, or if the
mortgagor fails to pay taxes or insurance as agreed upon, this right
66 MANUAL OF THE LAW.

 

to foreclose generally accrues to the mortgagee. A foreclosure of
a mortgage now in many States includes a sale of the mortgaged
property under the direction of an officer of the court, out of the
proceeds of which sale the mortgage debt with costs is paid, and
the balance, if any, is turned over to the mortgagor. Formerly a
foreclosure simply cut off the right to redeem, and vested the prop-
erty in the mortgagee. Where a power of sale is given in the
mortgage it is now possible in many of the States to avoid the
delay and expense of a bill in chancery by foreclosing by adver-
tisement. That is, the mortgagee, by virtue of a power of sale
given him in the mortgage, simply advertises the property for sale,
and in accordance with the provisions of the statute, has the land
sold at public auction by the proper officer (usually the sheriff),
bids on it himself if he chooses, and from the proceeds receives
the amount of the mortgage debt with costs, and the balance is
turned over to the mortgagor, whose rights are then entirely cut
off.

If the land does not sell for as much as the mortgage debt, the
mortgagee can get judgment for the deficiency if there is a note or
bond accompanying the mortgage. If there is no note or bond,
judgment for the deficiency may be had if it can be clearly shown
that the actual debt was more than the amount realized by the sale
of the property.

The foreclosure of a mortgage is a piece of work requiring
accuracy and care, and it should be given only into the hands of a
good attorney.
CHAPTER: Vil

DEEDS OF TRUST,

Sometimes instead of giving a mortgage to secure the payment
of money, property is deeded to a third person zz trust, as it is
called, with directions that if the money is not paid as agreed upon
he shall sell the property and pay the debt out of the proceeds.
The deed in such a case is called a trust deed, and as will be seen
it serves the same purpose as a mortgage. The person to whom
the land is so deeded is called the ¢vastee. He becomes the agent
of both parties, and he must perform his duties with the strictest
impartiality. A trust deed when used in place of a mortgage
becomes, in legal effect, really a mortgage. It generally, however,
vests the legal title in the trustee, even in those States where the
equitable doctrine concerning mortgages is adopted, (Dillon, J.,
in 2 Am. L. Reg., n. s., 655.)

Deeds of trust are very often preferred to mortgages, and in
some States they have entirely superceded mortgages as a means of
security. They are by some thought to be better on account of
the intervention of a disinterested person as trustee.

Trust deeds are used for other purposes than for the security of
debts, but we speak of them now only in that capacity. The fol
lowing form of a trust deed will explain this use of such instru-

ment:
SIMPLE FORM OF TRUST DEED.

This deed of trust, made this ....... day of ...... by...ee
of ..... Witnesseth: That for the purpose of securing to .....
a note of this date, due in twelve months with interest from date
at .....-.-, 1 do hereby convey to ....... in trust the following
property (describing it.) And if the note is not paid at maturity,
68 MANUAL OF THE LAW.

 

I hereby authorize and direct the said ........ to sell the propert
herein conveyed (state manner, place, time, and notice of. sal.
etc.), and to execute a deed to the purchaser, pay the amour
hereby secured with interest and costs, and to hold the remainde
subject to my order.

Witness my hand and seal, etc., ete.
CHAPTER VIII.

FPIXTURES—THINGS THAT GOWITH THE SALE.

1, What are Fixtures, 10. Agricultural Machinery.
2. Application of the Principles. 11. Pumps, Sinks, etc.

3. Things held to be Fixtures, 12. Machinery in General.
4. Buildings. 13. Farm Bells.

5. Household Furniture, 14. Gas Fixtures.

6. Fences. 15. Stones, etc.

7. Growing Crops, 16, Ornamental Statues,

8. Nursery Trees, 17. Title Deeds,

9. Manure, 18, Heir Looms,

If you have bought a farm or any other piece of real estate, and
are about to move on to it, it is desirable to know what things in the
shape of improvements which your grantor may have placed on it
you are entitled to have remain there for your use. Or, if you
have sold your farm and are about to remove from it, it is equally
desirable to know what things of a removable nature you are
entitled to take away with you, and what things the law requires
you to leave there for the use of the man to whom you sold.
Whether you have bought or sold it is important to know just
what things, which in their nature are capable of being removed,
are still to be regarded as part of the land, the title to which
passes to whoever owns the land.

1. What are Fixtures? When any article or thing has
become so annexed or affixed to the land that it has in law become
a part of it, it is called a fixture.

The most general rule to be applied in determining what things
are fixtures and what are not, is that _fixtures are any chattels which
have become substantially and permanently annexed to the land or
to buildings or other things which are clearly a part of the land.
7° MANUAL OF THE LAW.

 

For example: All houses, barns, ferices, bridges, trees, growing
crops, etc., are fixtures; they are a part of the land and pass to
whoever buys the land. The means by which the fixture is
annexed may be either physical, as is the case with buildings and
trees, or it may be purely theoretical or constructive as is the case
with the keys of a house which may be on a key ring in the own-
er’s pocket, or the title deeds of the place which may be locked up
in some safe, both of which are really a part of the land.

It is said that the fixture must be so annexed that it cannot be
severed without injuring the freehold. For example: A range
or grate set in brick work isa fixture (7 Mass., 432), while a stove
with loose pipe is not. (24 Wend., 191.) Mantel pieces attached
to the chimney so that they cannot be removed without marring
the plastering are a part of the house and go with it; but if merely
resting on brackets they are not, and may be taken away by the
person selling the place. (102 Mass., 517.) Frescoes on the walls
of a house could not be removed ona sale of it, but pictures hang-
ing on the walls which could be removed without hurting the
walls are personal property, and may be carried away by the
former owner. Yet there are many things so frailly attached to
the realty that they could be removed without injuring it, which
are still clearly a part of it, so that this last rule will be found not
to work in many cases. For example: Doors, windows, blinds,
shutters, etc., which may be removed without the slighest damage
to the house, and which may at the time of sale be actually
detached from the house, would still be deemed a part of it, and
would pass withthe land. (4 Metcalf, 306.) So, too, on the other
hand, mirrors, wardrobes, and other heavy articles of furniture
which may be tightly screwed to the walls, and which possibly
could not be removed without slight injury to the house, must be
regarded as chattels belonging to the former owner. (4 Metcalf,
306.) We see, therefore, that the foregoing rules are not decisive
in all cases of the question of what constitutes a fixture. It hence
becomes necessary to add that the zztention of the party making
the annexation often determines whether the thing annexed shall
be part of the real estate or still remain a chattel.

INTENTION DETERMINES.

Lf a chattel ts annexed to the freehold, with the intention of
making tt a permanent accession and improvement to it, it then
becomes a part of the land. (40 N. Y., 287.) This criterion will
THINGS THAT GO WITH THE FARM. 7

 

be found of more controlling importance in determining this ques-
tion of fixtures than the others that have been mentioned; vet the
true criterion, says the New York Court of Appeals in the case
above cited, is the united application of all these requisites. Apply-
ing the principle of intention it has been held that rails placed
along the line of a proposed fence for the purpose of being laid
into the fence, though not at once actually applied to that use,
must be regarded as fixtures, and pass by deed of the land. The
intention to appropriate the rails to the use of the land is sufficient
to make them a part of it. (1 Chandler’s R., 240.)

Likewise when a thing has once become a fixture it will not
lose its character as such and become personal property again by
being severed from the soil, unless there is the intention to perma-
nently detach it from the land. So the materials which have been
once used in a fence but have been taken down and piled up for
future use in the same place are regarded as still a part of the land.
(2 Hill, 142.)

2. Application of the Principles. These rules regarding
what constitutes a fixture are applied with considerable strictness
as between the seller and the purchaser of a farm. Every thing
which belongs to the farm goes with it—everything which the
seller erected there, whether for purposes of trade and manufac-
ture or for convenience or ornament, unless they have been specially
reserved in the deed. (6 Cow. N. Y., 663.)

As between mortgagor and mortgagee these rules are applied
with even more strictness. They are always construed most
strongly in favor of the mortgagee. Everything which the mort-
gagor affixes to the land after he has mortgaged it will, in case of
foreclosure, pass with the land to the party purchasing. (15 Mass.,
159-)

But as between a landlord and his tenant, the strictness of these
rules is much relaxed. All that is required of a tenant is to leave
the land occupied by him in as good condition as it was when he
rented it. Everything, therefore, which he annexes to the land for
the purpose of orzament, domestic convenience, or to carry on a
trade, may be removed by him at the expiration of his tenancy, pro-
vided he can do it without materially injuring the freehold. (16
Mass., 449; 7 Barb., 263.) The presumption in these cases is that
it was not the intention of the tenant to make the things which he
annexed to the premises for the above purposes permanent acces-
73 MANUAL OF THE LAW.

 

sions to the freehold. He is presumed to act naturally, and for his
own interests, and to have intended such annexations only for tem-
porary use during his tenancy. (1 Ohio N. S., 511.)

These general observations will be illustrated by the following
enumeration of things which the courts have held to be fixtures,
and as such to pass by deed of the land:

3. Things Held to be Fixtures. As between the seller and
the buyer of land the following are regarded as fixtures:

4, All buildings of whatever nature standing upon the land
goto the purchaser. It is customary to mention buildings in the
deed, but it is not necessary to do so; being a part of the land
they would pass with it. And it has been held that the materials
of any old building which has been taken down or has been blown
down, and have been packed away for future use upon the farm
would pass with it. (41 N. H., 505.) The reason of this is that
there has never been any intention to sever the materials which
composed the building from the soil to which they belonged. Had
there been such an intention, as for instance, had the materials been
piled up for sale or to remove to another farm, they would then:
have become personal property, and would not pass with the land.
It may seem strange that the mere thought in the mind of the
owner at the time he handles the materials should make all the
difference between real estate and personal property, but a little
reflection will show it to be good common sense. The zztention
of the mind is a very potent thing. If I kill a man because I
think he will at once kill me if I don’t, it is justifiable homicide; if
I kill him because I hate him and want him out of the way, it is
willful murder. In one case I am excused, or possibly applauded;
in the other I am hanged,

Of course it is possible for buildings to be personal property, and
not a part of the land on which they stand. The owner of land
may allow any one to put buildings on it, and may agree that the
buildings when erected shall belong to the man who builds them.
Such buildings would then be personal property, and the title to
them would not pass with the title to the land. In case of a sale
of the land, the owner of the buildings could move them off, even
though the purchaser supposed he had bought them. (38 N. H.,
429; 19 Conn., 154.) But the purchaser would have a claim
against his grantor under his covenant of seizin, and could proceed
against him for the damages caused by the removal of the build-
THINGS THAT GO WITH THE SALE, 73

 

ings. For he had a right to suppose that buildings which were
attached firmly to the land were in fact part of it, and if he found
they were not, such fact would constitute a breach of covenant. (17
Vt., 403.)

Everything which is a part of any building on the land goes
with it, as the doors, blinds, shutters, keys, furnaces (either brick
or portable, see 75 Ill., 385), grates, and in fact everything which
was intended by the owner to be a permanent part of the building.
Any of these things which are removed temporarily at the time of
sale are still a part of the building; though new articles which
have been bought but are not yet attached at the time of sale are
not fixtures. (40 Vermont, 233.)

5. Household Furniture, curtains, carpets, pictures, stoves,
etc., are personal property, and may be carried away by the owner
on a sale of the land. Buta range or grate is, as we have seen,
when set in brick work, a part of the house. (7 Mass., 432.)

6. Fences of all kinds and fence materials which have been
once used, but which may be taken down and piled up for future
use in the same place, are a part of the land and go to the pur-
chaser. (43 N.H., 306; 2 Hill, 142.) New fence materials which
had never been built into a fence would not pass as part of the
land. (16 IIL, 480.)

7%. Growing Crops are fixtures and pass with a sale of the
land. (g Cow., 393 46 Barb., 278.) If they are not specially
reserved in the deed they become the property of the purchaser,
notwithstanding there may have been a verbal agreement that the
grantor should retain them. Beinga part of the land, they pass by
a deed of it, and a mere verbal agreement to the contrary will not
be allowed to set aside the deed, which is a written agreement. (19
Pick., 315; 22 N. H., 538.) This is because of the rule that parol,
verbal, or spoken evidence is not admissible to contradict or vary
the terms of a written instrument. The same is true regarding
any fixture which it is desired to reserve to the grantor. It must
be done by so stating it in the deed, as a verbal reservation will not
be binding upon the grantee. As soon as acrop is gathered or sev-
ered from the ground it becomes personal property. See Chap. xxx.

8. Nursery Trees growing upon the land are fixtures, and
pass to the grantee unless specially reserved in the deed. (39 IIL,
28.) If they belong to a tenant, however, he may remove them
at the expiration of his lease.
74 MANUAL OF THE LAW.

 

Hop poles when standing in the field with hops growing upon
them are a part of the land. And if at the time of sale they are
taken down for the purpose of gathering the crop and are piled up
in the yard with the intention of being replaced the next season,
they still go with the land. (11 N. Y., 123.)

Trees of all kinds growing upon the land are a part of it. If
they are blown down or cut down and are still lying where they
fell, they are yet a part of the land. (54 Me., 309.) If cut and
corded up for sale they then become personal property.

9. Manure. All manure made in the ordinary course of car-
rying on a farm passes on a sale of it as a part of the land. It
makes no difference whether it is scattered in the fields or lying in
the barnyard, or in heaps under the barn windows, or piled under
cover. (22 N. H., 538.) This rule is applied also between landlord
and tenant. Good husbandry requires that the manure made on a
farm remain there, and it is universally held to be a part of it as
soon as it is dropped. (See many cases in Tyler on Fixtures, 340,
355-) If at time of sale manure had been sold to a third party
and had been piled up ready to be carried away, then possibly it
would not pass with the land. (43 Vt., 95.)

10. Agricultural Machinery. Farm implements of all sorts,
such as wagons, plows, harrows, mowers, reapers, rakes, and all
similar articles of a movable nature, are of course chattels, and
may be carried away by their owner upon a sale of the farm. But
there is a class of machines generally actually annexed to the land,
but sometimes only constructively annexed, which from their char-
acter in subserving an important and permanent use upon the farm,
are held to be a part of and to pass with a deed of it. In this
class are cotton gins. These, with the gearing connected with
them, are in the southern States generally held to be a part of the
land on which they are located. (7 N. C., 369; 2 Strobhart, S. C.,
478; 48 Miss., 1.) A carding machine standing on the bank of a
river and run by a water wheel, and which was very heavy,
requiring several men to move it, though not fastened to the house
in which it was used, was held to be afixture. (72 N. C., 582.) A
portable grist mili which had been fastened in a building ona
farm, which was designed to be a permanent public grist mill for
the neighborhood about it, was held to be a fixture and to pass with
the land. (40 N. Y., 287.) Dye kettles secured in brick work are
a part of the realty. (15 Mass. 159.) A_s¢#dZ put up for distilling,
THINGS THAT GO WITH THE FARM. 75

 

encased in brick, is a fixture; so is a large copper kettle, put up for
cooking food for hogs, encased in brick and mortar, (5 Jones, 337.)
A cider mill was held to go with the land. (41 N. H., 504.)

11. Pumps, sinks, ete., fastened to a building are a part of it
in law; also water pipes bringing water from a distant spring. (97
Mass., 133399 Mass., 457.)

12, Machinery in General. The rule in regard to this is that
the motive power of machinery, and generally the connecting
power, like the shafting, etc., both of which are in their nature
stationary, are, as between vendor and vendee, always fixtures.
The machinery impelled is sometimes a fixture and sometimes per-
sonal property, according to the way it is annexed, etc. The cases
bearing upon the subject are very numerous, and cannot be referred
to here. (See Tyler on Fixtures, 546.) All the machinery of a
cotton mill which is necessary to its use as such was held to be a
part of the realty. (15 Penn., 507.) The saws belonging to a saw
mill go with the mill. (43 N. H., 390.) A steam engine, though
not fastened down, but which could not be taken out without
tearing down part of the building in which it was placed, was
held to be a fixture, (12 N. H., 205.) In fact all stationary
machinery by which other portable machinery, such as lathes, etc.,
is impelled, are fixtures. (26 Ala., 493.) All the machinery of a
flouring mill goes with it as a part of the land. (g Cal., 119.)
But it was held out in Nevada where a saw-mill had been built
upon timbers lying loose on the ground and constructed with the
object, after sawing the timber near at hand, of removing it to
another place, that such a mill was personal property and could be
removed by the grantor. (6 Nev., 244.)

13. Farm Bells. It was held in Texas that a bell, though
used for farm purposes, was not a fixture, if it only sets on posts
and is not permanently affixed. (37 Tex., 413.) But in Massa--
chusetts a bell in the cupola of a barn hung in a frame which was
nailed down, was held to be a fixture. (102 Mass., 514.)

14. Gas Fixtures. No definite rule can be laid down con-
cerning gas fixtures. They are sometimes regarded as fixtures and
sometimes as personal property, according to the circumstances of
each particular case. (4 Daly, 359.) As between landlord and
tenant they are almost always regarded as chattels; and between
vendor and vendee they have often been so regarded, being so
much like ordinary lamps, brackets, etc., which are clearly chattels
76 MANUAL OF THE LAW.

 

in their nature. (2 R. 1, 157.) Still the courts have frequently
held that gas fixtures are a part of the realty (40 Mo., 91; 3
Stockt., 84), and it is perhaps only safe to say that their character
will depend on the circumstances of each case.

15. Stones, etc. All stones, ores, and other minerals, whether
lying loose upon the land or in ledges, mines, or quarries, are of
course a part of the land; but a stone split out from its original
place in a ledge does not necessarily pass by deed of the land. If
it was severed with the intention and for the purpose of being
used on the land, it is then regarded as still a part of it; but if sev-
ered in order to be removed and used elsewhere, it has become
personal property and will not pass on a sale of the land. (42
Vt., 146.)

16. Statues erected as ornaments in the grounds, and sun dials
fixed upon stone foundations, are fixtures. (12 N. Y., 170.)

17. The Title Deeds which constitute the evidence of owner-
ship of .land are regarded as a part of it, and pass with it. In this
country deeds, after being recorded, are generally not in themselves
worth much,

18. Heir-looms, etc. There are certain articles which, as
between the heir of an estate and the executor or administrator,
are regarded as fixtures, and go to the heir along with the land.
These are heir-looms (old family articles of furniture or plate or
pictures or the like which have been handed down from one gen-
eration to another); also the deer in a park, the fish in a pond,
doves in a dove-house, and the conies in a warren.

It may be again observed in concluding this chapter that the
things above enumerated are what have been declared to be fixtures
as between the seller and buyer of land, so that they will pass to
the one who buys along with the land, They would certainly all
be held to be fixtures as between mortgagor and mortgagee; but
as between landlord and tenant many of them would not he, and
the tenant would probably have the right to take many of them
away along with his other personal property. This matter is more
fully explained in the chapter on “ Landlord and Tenant.”
CHAPTER IX.

APPURTENANCES, ETC.

Beside the land itself, and beside the fixtures which are annexed tc
it, the deed of it covers and conveys to the grantee certain other
things. Some of these things are regarded as appurtenances ,
that is, things which are appendant, or related to, or dependant
upon, the land conveyed; and some are regarded as parcels of the
landitself. Both pass to the grantee, whether they are specifically
referred to in the deed or not. There is a very old legal maxim to
the effect that whoever grants a thing ts held also to grant that
without which the grant itself would be of no effect. (Broom’s
Maxims, 362.) The object is in all cases of doubt to arrive at
what must have been the za¢teztion of the parties, so in construing
a deed, the courts will zm#fly a grant—if it is not expressed—of
whatever is necessary to carry the direct grant into effect. To
illustrate: If I sell a thing I am held to sell also the means of
attaining that thing, providing I own the means, and common
sense would indicate from the surrounding circumstances an inten-
tion to convey them. Thus if I sell Smith a piece of land in the
center of or entirely surrounded by my other land, I thereby sell
Smith the right to pass over my other land to get to that which I
sold him. This right of way over my land becomes appurtenant
to Smith’s land, and passes to whoever Smith sells to. The right
becomes a servitude, as it is called, upon my land, and my land
continues subject to it after I have sold it.

Among the things which thus go with land to whoever buys it
are all the easements which are appurtenant to it. Easements are
the rights which a person, as the owner of one piece of land, has in
the lands of another. These easements pass on a sale of the land
78 MANUAL OF THE LAW.

 

to the grantee, as is illustrated in the above case. We shall learn
more about them when we come to the chapter on the subject of
easements. (Chapter XI.)

But there are many other appurtenant rights which pass as inci-
dents of the ownership of land, and which it is not possible to
group under general heads. They are to be inferred or implied
from the circumstances of each particular case. Thus the sale of
a mill carries the use of the water by which it is worked, the flood-
gates, dam, and all things necessary for its use, as well as the land
on which the mill stands, and the right to maintain the dam. (43
N. H., 540.) The sale of a “dwelling house and outbuildings
belonging thereto ” was held to carry the land on which the house
stood, and also a barn which was used with the house and the land
under it. (53 Me., 81.)

The sale of a “house,” “ cottage,” “wharf,” “ pit” or “ pool,”
when these words were used as general terms of description in the
deed, was held to carry the land upon which they were located as
well as the things themselves. (6 Gray, 107.)

The sale of the right to dig a trench in which to lay water pipes
carries the right to enter, dig, and keep the same in repair. Soa
sale of mines on one’s lands carries the right to dig for and work
them. But a grant or deed of anything of this sort, ar of a
““way” or “road” only carries the right to the use of the thing,
but conveys no title to the fee of the soil composing it. The fee
of the land will not be conveyed unless that is necessary te fulfill
the intention of the parties or the object of the grant. (44 N. H.,
464; 22 Pick., 333.)

A grant of land carries all mines in it (1), but a grant of mines
does not carry the land. As has been said, grants which @re not
expressed in the deed are sometimes implied from those which are.
This doctrine is well illustrated by a case in Connecticut where a
man, through whose land a stream flowed, granted to the owner
above a right to throw the washings of ore into the stream, and to
deposit themselves on the grantor’s meadow below. In time the
meadow became so raised that the washings flowed off on to his
adjoining pasture. It was held that the right to continue to throw
the washings into the stream, and to have them thus deposited,
passed as an incident to the principal grant. (31 Conn., 150.)

 

(1.) See note on page Io, as to mines of gold and silver,
CHAPTER X.

FARM SURVEYING—THE BOUNDARIES OF

 

A FARM
1, Monuments. 7. Lakes, ete,
2. Courses and Distances. 8. The Sea.
3. The Quantity of Land. 9. Highways,
4. Parol Evidence as to Boundaries, 10. Surveys.
5. Streams, etc. 11, Acquiescence,
6. Artificial Ponds. 12, Meander Lines,

Having purchased a farm and obtained possession of it, together
with all that goes with it, it is desirable to know just how far it
extends or just what its true boundaries are; or if these or any of
them are uncertain or in dispute, what rules to apply in determin-
ing them.

The most general rule that can be laid down in this connection
is that where visible objects, such as trees, streams, stones, or posts,
mark the boundaries, they are to govern in determining loca-
tion, no matter whether the boundaries so located agree with or
conform to those marked by other indications. If there are no
visible objects, or #zonuments as they are called, then the directions
and lengths, or the courses and admeasurements of the boundary
lines as given in the deed, are to be resorted to, and are to govern
in determining the boundary, whether they correspond with the
other indications, such as the number of acres mentioned in the
deed, etc., or not. If there are no monuments nor admeasure-
ments, then the number of acres, the quantity of land, or any
other means which may exist, may he made use of in determining
the true extent of the farm. If none of these are given and there
are no means of determining the true boundaries of the farm,
why, then of course the whole deed must fail for want of certainty.
80 MANUAL OF THE LAW.

 

1. Monuments. These are permanent landmarks establishe:
or made use of for the purpose of indicating boundaries. The
may consist of natural or artificial objects, streams, stones, stakes
springs, trees, posts, etc. (7 Cow., N. Y., 723.) When these exis
they must govern, although they do not correspond with the dis
tances as given in the deed, nor do not include the number of acre
mentioned. (2 Mass., 380.) To illustrate: In the description
of land as given in deeds it is very common to mention the bound
ary line as commencing at a certain point and running ina certail
direction or along a certain stream a certain distance to anothe
point, as a tree or stone, then in another direction a certain dis
tance to still another point, as a post or corner of a building, the:
in another direction a certain distance to some other point, as thi
corner of a street, then in another direction a certain distance ti
the place of beginning. This is sometimes called a descriptio:
by metes and bounds, and it is customary to mention the numbe
of acres contained in the land. Now ifthe deed after running th:
boundary line as above indicated adds this expression: “ contain
ing one hundred acres of land,” and it is found by actual measure
ment that there are only eighty acres within those boundaries
then only eighty acres will be conveyed. The monument:
must govern, (42 Me., 209.) And a deficiency of this sort i1
the number of acres mentioned in the deed does not give thi
buyer any remedy against the seller for any return of part o
the purchase money, unless, perhaps, the land was bought at :
stated price per acre. (19 Pick., 387.) Indeed, of so muct
less importance is the number of acres mentioned in the deec
than the boundaries marked by known monuments, that it ha
been held that a fraudulent over-statement of the quantity by
the seller in order to deceive the buyer will give the latter n
redress if the boundaries be truly pointed out in making th:
trade (102 Mass., 217); but a fraudulent statement as to thi
boundaries would release the purchaser from the sale. (9 N
Y., 183.) So, likewise, if the number of acres are found to b:
more than those mentioned in the deed; they all pass if include:
within the boundaries as set forth inthe deed. In further illus
tration of the law that visible monuments must govern, it ma‘
be said that if the deed describes the boundary line as runnin;
from monument to monument in given directions and distances
and it is found on actual measurement that both the directjon
and distances are wrong, the monuments must still gover.
PARM SURVEYING. 81

 

and the land within them will pass. The reason of this is obvious.
Surveys are often loosely made; measurements, especially in
uneven or forest lands, are liable to be inaccurate; directions, which
are determined by instruments liable to be affected and rendered
variable by temperature and electrical conditions, may not always
be exactly true, so that it is only sensible and proper that both
should be required to give way to known and visible monuments.

A boundary line as given in a deed was said to run westerly,
but the monuments showed it to be northwesterly, and the latter
was properly held to be the true line. (22 Cal., 469.) If monu-
ments are referred to in the deed which are not in existence at the
time the sale is made, but the parties then go upon the premises
and fix those monuments, and the purchaser takes possession, they
will then ever after be bound by them, and neither can complain
or have the monuments changed, though it may be found that
they were not just accurately placed. (7 Cushing, 381.)

2. Courses and Distances. If the land is described in the
deed as bounded by a line commencing at a certain point and run-
ning, for example, west four degrees and seven minutes north, six
chains and ten links to another point, thence south nine degrees and
eight minutes west, forty chains to another point, and so on around
to the place of beginning, these are called the courses and distances.
And as has been stated, courses and distances govern if there are
no visible monuments. (20 Pick., 62.)

3. The Quantity of Land. It is very common to mention in
the deed the number of acres or quantity of land which the farm
conveyed is said to contain. This is generally regarded only as a
part of the description of the land, and it affords only the weakest
means of determining the true extent of the farm. As we have
seen, it is subordinate in importance to every other means of ascer-
taining the boundaries. It aids but does not control the description.
(5 Mass., 357.) Therefore, it was held in Kentucky that where a -
grant of land described by metes and bounds as containing 174
acres was found by actual measurement to contain 214 acres that
the whole land would pass. (4 Met., Ky., 103.) Anda failure in
the number of acres does not generally give the grantee any right
to fall back upon the grantor for any deficiency unless there is an
express covenant as to quantity.

4. Parol Evidence as to Boundaries. The boundaries of a
82 MANUAL OF THE LAW.

 

farm may sometimes be determined by parol or verbal evidence.
It is a general maxim in law that parol or spoken testimony is not
admissible to contradict or-vary the terms of a written instrument.
This is true of deeds. Their provisions cannot be set aside or even
changed by parol evidence, but they may generally be explained in
this manner if explanation is needed. The circumstances under
which they were made may always be shown by parol. (20 Ohio,
+147.) The meaning of vague or unusual words which may occur
in the description clause of the deed, may be thus explained. (15
N. J. Ch., 418.) So may technical terms be explained, and also
what are called latent ambiguities. (36 N. H., 569.) For the
purpose of determining boundaries parol is admissible to show
where monuments were; if they have been lost, or if there are
two or more objects which would answer for the monument (as
where a deed mentioned a “pine tree” and it was found there
were two) parol is admissible to show which was meant. (2 N.
H., 369; 22 Cal., 496.) And where the deed leaves the boundaries
doubtful, it is proper to show by parol the construction which the
parties gave to the language used. (1. Met., 378.)

Boundaries may sometimes be determined by actual occupation,
ancient reputation, the admissions of the grantor against his inter-
est, old maps, the lines of adjoining surveys, etc., and by other
such considerations too tedious and too technical for full treatment
here. (See Greenleaf on Evidence, § 145.)

5. Streams, etc. The general rule regarding monuments is
that the boundary line runs to the center of them unless otherwise
expressed in the deed. This is generally true of streams, rivers,
creeks, and artificial ponds or lakes when these serve as monuments
of boundary. At the old English law a farm bounded by a wavi-
gable stream extended only to high-water mark; but navigable
streams were held to be only those in which the tide ebbed and
flowed. All others were regarded as not navigable, as such was no
doubt in almost all cases the fact in England, and farms along them
were held to extend to the middle or thread of the stream. This
doctrine has been adopted in America. Farmson streams in which
the tide ebbs and flows extend only to the high-water mark. Farms
on all other streams, no matter how large, nor whether navigable
or not, extend to the middle of the stream—not necessarily to the
middle of the water, but the middle or thread of the current. (9
N. H., 461517 Mass., 289; 26 Wend., 404; 20 Wis., 432.) This is
FABM SURVEYING. 83

 

the general doctrine in America, and it has been applied to farms
along the Mississippi river which are held to extend to the middle of
that great stream, subject to the right of navigating its waters by
the public. (39 Miss., 109.) It has also been applied to the Detroit
river, farms along which are held to extend to the national bound-
ary. (8 Mich., 18.) But there are a few exceptions to this gen-
eral rule. For-instance, it was held that the Mohawk should be
regarded as in this sense a navigable stream, and that farms lying
along its margins should be bounded by the low-water mark. (33
N. Y., 461.) And a similar rule was adopted by the courts of
Pennsylvania with respect to the Monongahela and other large
rivers of that State. (14 Pa. St. 120.) And alsoin North Caro-
lina and Tennessee a similar doctrine was announced. (2 Dev.,
30; 1 Head., 650.)

The general rule being that farms bordering on fresh water
streams extend to the thread of the current, it follows that if an
island forms between the margin and the middle of the stream it
belongs to the owner of the bordering farm. If the island existed
there at the time the farm was sold it would not pass to the grantee
for the farm would only extend down to the first thread or filum
aque, that is to the middle of the current between the island and
the shore.

6. Artificial Ponds. <A similar rule regarding boundaries
applies to all artificial bodies of water, as mill-ponds, reservoirs,
etc., as to fresh water streams. Farms bounding upon them
extend to the center. (13 Me., 198;9 Gray, 269.) It would seem
but natural that if a stream be dammed up so as to turn it into a
lake or large pond, that this should not interfere with the bound-
aries of farms on either side, but that such farms should remain as
before extending to the middle of the water.

7. Lakes, etc. But with lakes and large natural ponds the
rule seems to be that farm boundaries are at low-water mark (13
Pick., 261), though there are some decisions to the effect that on
our small inland lakes and ponds there is no exception to the gen-
eral rule, and that farms along them extend to the center. This is
the rule in Michigan.

8. The Sea. A farm bordering on the ocean or sea, or an arm
of thesea, like a bay or strait, extends only to the high-water mark.
The space between high and low-water mark, called the shore,
belongs to the public. (3 Kent. Com., 431.) This is the law
24 MANUAL OF THE LAW.

 

except in Massachusetts, where by an ancient ordinance farms o:
the sea-shore extend te low-water mark if that is not over 100 rod
from high-water mark. If the owner of one of these Massachu
setts farms sells it and describes it in the deed as bounding om th
sea, the grantee will take the land to the low-water mark; if h
describes it as bounded by the shore it will extend only to high
water mark. (6 Mass., 435.) While if he uses the expression “ ti
the sea shore,” or “to the beach or sea,” the grantee takes to th
low-water mark.

9. Highways. If a farm is bounded by a public road, street
or alley, it extends to the middle of the way. It is almost th
universal doctrine that the land ina highway belongs to the owa
ers of adjacent land. (19 Wend., 659; 16 Mass., 33.) And if ;
farm is sold and described as bounded by a highway, or lying
along a highway, it extends to the niddle of the same unless the
description clearly excludes the soil of the highway. (27 N. Y.
624; 20 Wis., 432.) If the land is described by lot, which lo
fronts on a street, the line will extend to the center of the street
although the plan of the lot and the admeasurements extend only
to the edge of the street. (10 C. B.,n.s., 400.) The Vermon:
court held that land described as “bounding south on a high.
way” extended to the centre of the road (30 Vt., 118), and the
Wisconsin court went so far as to hold that in all cases the lanc
will extend to the centre of the road unless the road or street ix
expressly excluded in the deed. (4 Wis., 331.)

Of course the land in the highway is not of great value to the
adjacent farmer, being burdened as it is with the public easement
or right of travel there. But every beneficial use to which it car
be put, which does not interfere with the public right of passage
and of keeping the way in repair, belongs-to the adjacent owners,
and may be utilized by them. Thetreesand grass belong to them,
and may be cut and carried away; and if valuable mines are there
discovered they may be worked. Then, too, if the road were eve
discontinued the land in it would revert free of all incumbrances to
the adjacent owners. So that it is a matter of much importance
where the boundary of a street front really is. The doctrine that
farms extend to the centre of the highway is applied to streets
which have been dedicated but not yet opened, as well as to those
which are open and in use. (2 Wall., U. S., 57.) And it is
FARM SURVEYING. 85

 

applied to streets in New York City (22 How. Prac., 115) and
other cities of the Union.

10. Surveys. Where land is deeded according to the survey
of it, the original survey is the one that generally must govern.
All ef the land in this country, outside of the original thirteen
colonies, is supposed to have been surveyed by the general govern-
ment, and permanent monuments fixed to determine the boundarics.
And, as has been stated, it is the well settled rule that no matter
how erroneous the original survey may have been it must govern;
the monuments then established must determine the boundaries,
even though the effect be to make one quarter section contain 180
acres, and the adjoining quarter section but 140. Parties buy with
reference to these monuments, and are entitled to whatever is within
them. (4 Wheat., 444; 93 Ill., 233.) The public lands are divided
by the government survey into townships six miles square, and the
townships are divided into thirty-six sections containing, as near as
may be, 640 acres each.

Where the deed refers to a survey the grantee takes in con-
formity therewith, though the boundaries mentioned in the deed do
not agree with those of the survey. (14 Mass., 149.) So, also,
where the deed refers to a certain map or plan, the lines laid down
on such map or plan are to be regarded as much a part of the
description as they would be if expressly recited in the deed. (17
Mass., 211.)

Where the boundary lines are known, the adjoining proprietors
cannot change them by verbal agreement, because it would work
a parol transfer of land which would be void under the statute of
frauds. (4 Yerg., Tenn., 456.) But if a boundary or dividing
line is unknown in dispute or in doubt, it is then proper and admis-
sible for the parties to establish it by parol agreement (4 Wheat.,
513), because the law always allows parties to settle their own dis-
putes, and an agreement of this sort respecting boundaries becomes
binding upon the pazties and upon the land. The peace of the
community requires this rule. (26 Mich., 332.)

11. Acquiescence. We see, therefore, from the above, that
boundaries may be determined by acquiescence. Where the origi-
nal line is unknown, and the adjoining owners have accepted a par-
ticular line as their boundary, and all parties concerned have acqui-
esced in it, and have cultivated and claimed up to it, it then becomes
86 MANUAL OF THE LAW.

 

the true boundary. And no particular time is necessary to accom-
plish this. The boundary so established becomes binding though
not acquiesced in for twenty years or any particular number of
years. ($2 IIL, 498; 43 Mich., 542.)

So, therefore, if on buying a farm the purchaser finds that one
or more of its boundaries have been thus settled by acquiescence,
he may generally rest assured that the line so established will be
held to be the correct one, and that it is needless for him to trouble
further about it.

12. Meander Lines. These are lines traced along the shores
of lakes, ponds, and rivers for the purpose of ascertaining the
quantity of land in a section where the same is made fractional by
such waters. It was these lines that determined the price of such
sections when they were sold by the governmen:, and for this
reason it is perhaps natural to suppose that they form the boundary
line, and that the land in front them extending out under the water,
remains unsold and still owned by the government. This, as we
have seen, is not generally the case. Except where such lines run
along the margins of large navigable streams, or those in which
the tide ebbs and flows, or along large lakes, they do not mark the
boundary, for the boundary is at the middle of the stream, In
small lakes which are the mere expansion of the rivers which pass
through them, this rule of centre boundary has been applied. (10
Mich., 125.) But questions of great nicety have arisen as to just
how the side boundaries of farms or other parcels of land shall be
extended from the meandered line to the centre boundary. If the
side boundaries were extended straight to the centre line it would
work well enough providing the stream were straight; but, if the
stream were curving, such a rule would make the side lines cross
_ each other in some cases, and in others have the effect of practically
cutting off the river front of some farms and of giving an undue
advantage to others. It cannot be, therefore, and has not been
recognized in the law. The rule which has been found to work
with greatest justness, and which has therefore been approved by
the courts and applied in many instances, is this: Extend the side
boundaries or dividing lines between the parcels from the meander
line to the center of the river as nearly as possible at right angles
to the general course of the river at that point. This rule is
applied not only to sections and other subdivisions of the govern-
ment survey, but also to town lots fronting on such bodies of
FARM SURVEYING. 87

water as carry the boundary to the centre. (28 Mich., 182.) On
a circular body of water this rule would make the lines converge
to the centre like the spokes of a wheel. On a very crooked
stream or a very irregular body of water, this rule would de inca-
pable of strict application; and it is impossible to explain here, in
fact impossible to state with certainty at all, just what would be
the legal rights of the riparian owners on one of our irregular
inland lakes if it should dry up or be drained away. (See Angell
eon Water Courses, §55.)
CHAPTER XI.

 

EASEMENTS.
1. What are Easements, 11. How Ways may be used.
2. Light. 12. Obstruction of Ways.
3. Air. 13. Termination of Ways.
4. Purity of Air, 14. Lateral Support.
5. Water. 15. Water as a Support.
6. Water Right. 16. Mining Leases.
7. Ways. 17. Side Support for Houses,
8. Ways of Necessity. 18, Party Walls.
9. Ways by Long Use. 19. Rights in Party Walls.
to. Ways by Purchase. 20. Miscellaneous Easements.

Of the many rights incident to real estate, and growing out of
the ownership thereof, there are few of greater importance than
those which are called, in the language of the law, Hasements.
It is the purpose of this chapter to set forth, as plainly as possible,
a brief statement of the law governing them, to the end that the
reader, if he be the owner of real property, may understand some-
what his rights in relation thereto.

1. What are Easements. An easement has been defined as
a right in the owner of one parcel of land, by reason of such
ownership, to use the land of another for some special purpose not
inconsistent with a general property in the owner. (2 Washb.,
Real Prop. 25.)

The right which one owner has in the land of the other is called
an easement; the burden which is thus imposed upon the property
of the second owner is called a sermétude. Easements and servi-
tudes are then really the same things looked at in two ways. They
are incorporeal hereditaments, that is, permanent rights in real
property, and they are regarded in law the same as real estate, and
pass to the owner’s heirs or assigos im the same manner. They
EASEMENTS. 89

 

always involve the existence of two estates,— the dominant estate
to which the right belongs, and the servient estate upon which the
obligation rests. (38 Cal., 116.) A servitude thus resting upon
land is an incumbrance, and in deeding such land the owner
should mention it or make an exception of it, if he deeds by
warranty deed, otherwise he will be liable under his covenant
against incumbrances. If one buysa farm by warranty deed and
finds it burdened with the obligation of maintaining an easement
in favor of an adjoining farm, he may collect of his grantor such
damages as that servitude causes him, if it were not excepted out"
of the covenants in his deed. But if one buys a farm even by’
' quit-claim deed, all the easements which are appurtenant to it
will pass to him whether they are mentioned in the deed or not.
Easements must not be confused with licenses, though they may
both consist of the same thing; for while an easement always im-
plies an interest in the land on or over which it is enjoyed, a
license carries no such interest and is generally revokable at will
by the owner of the land in which it is enjoyed. (4 Sandf., Ch. 72.)

Easements are of numerous kinds; in fact, it is said, they
may be as numerous as the exigencies of domestic convenience
and necessity, or the uses to which land may be put. But
practically they are not so numerous, and we shall here only
consider the more important and universal ones, namely, light,
air, water, ways, and support, referring in only a general way to
others which may exist.

2. Light. Light and air in many respects resemble each
other. They are provisions of nature necessary to the ex-
istence and well being of all mankind, and every person has a
natural right to use them in any way he may think proper, pro-
viding he does not thereby cause damage to other persons,
Every person who owns a house or other building has the
undoubted right to open as many windows in it as he pleases
for the admission of light and air; and if such house or building
immediately adjoins another’s land, such owner cannot com-
plain that the light flows in from over his property. No legal
injury is thereby caused. (13 Wend., 261.) But if such windows
interfere with his privacy, or if for any other reason he does
not wish to have the right to an uninterrupted flow of light
into such windows to be by any means acquired, he may exer-
cise his superior right of building on his own land and thus may
shut the light off. But when such a right to an uninterrupted
7 MANUAL OF THE LAW.

 

flow of light is once acquired, he can not interfere with it. It is
then an easement which his adjoining neighbor has in his property,
and the law will protect it as perfectly as though the neighbor
owned the land over which it is enjoyed. At common law, and
in England by force of statute also, sucha right may be acquired
by prescription, or long uninterrupted use. If the windows of
one’s building have received the light which comes across and over
another’s land for twenty years or more, an easement has been
acquired in that land to have the light continue to flow; and the
owner of the land can not erect any buildings or do any act which
will intercept the flow. This is the law in England, but it exists
there only in favor of “ancient lights” or old windows; so that if
one has no buildings with windows on his land, he cannot gain the
tight by prescription to have the light flow on his land alone or on
to anything else that may be there.

In America this easement or right to an uninterrupted flow of
light can not be acquired by prescription or long use. In some of
the States such a mode of gaining the right has been abrogated by
statute, and in others it has been denied by the courts. Notwith-
standing some early decisions to the contrary it can not now be
safely said that the doctrine that a right to light may be gained by
mere prescription prevails in a single State, unless Delaware be
an exception. We can not here examine the causes which brought
about this change from the old law. Suffice it to say that all
things considered, the change was a wise one.

The only way, then, that a right to a flow of light over another’s
land can be acquired in this country is by grant, that is by buying it
and having it properly deeded. If therefore one wishes to build his
house right at the edge of his lot, he must either buy the right to
an uninterrupted flow of light over the adjoining land, or else take
his chances on having the light cut off when his neighbor gets
teady to build. But having acquired such a right, his flow of light
cannot be interfered with; for if it is obstructed by the adjacent
owner, the obstruction may be abated, or damages recovered for
the injury. In order, however, to maintain an action for such
an injury there must be a substantial privation of light, sufficient
to render the occupancy of the house uncomfortable, or to prevent
the owner from carrying on his accustomed business. (7 C. and
P., 410.) A mere shading of the premises would not entitle the
owner to any relief,
EASEMENTS. gi

 

The disturbance of one’s privacy by the opening of windows
overlooking his grounds is not, as has been intimated, an injury
which the law will recognize. If one is thus annoyed, his only
remedy is to erect a building or wall which will obstruct the view,
and this he has a right to do unless he has granted an easement in
his lands to the uninterrupted flow of light over them.

At the common law, if one sells a house, the windows of which
receive light from over land which he still owns, he cannot obstruct
the continued free passage of light to those windows; for he is
held to have impliedly granted an easement to that effect, the
windows being necessary to the enjoyment of the house. Upon
this point the American decisions do not agree. The doctrine is
denied in Ohio, and it is not safe to depend upon it being the law
anywhere. The proper way to do would be to have the grantor
of such a house include in his deed of it the easement of light over
the adjoining land.

3. Air. The rules of law relating to the right to free passage
of air are practically identical with those relating to light. The
right to have it flow into one’s windows or blow against one’s wind-
mill is, when acquired as against an adjoining owner, an easement.
Such an easement cannot, in this country, be acquired by long use
or prescription merely. It must be acquired by grant.

4. Purity of Air. Every owner of land has the natural right
that the air which passes to his land shall not be polluted by any
person, and if any person does pollute or befoul it without having
gained the right to do so, he is guilty of a wrongful act. (6 Gray,
473-) Of course one has the right to pollute the air passing from
his premises to a certain limited extent, for he could not keep fires
in his stoves, or even use the air for breathing, if this were not the
case. But, what is meant by the above rule is, that the air, being
for the common good of all, may be used by each in any way which
does not prevent others from deriving that common benefit, even
though such use may render it a little less pure than it otherwise
might have been.

A right may be acquired to pollute the air which passes from
the land of one owner to that of another, and such a right is an
easement. An easement of this character may be acquired by pre-
scription or by grant. When the air, which passes from the
premises of one person to those of another, has been habitually
polluted by smoke, smells, noises, vapors, water, etc., continuously
93 MANUAL OF THE LAW.

 

for a period of twenty years »r more, the right has probably been
acquired in favor of the first owner and against the second to con-
tinue such pollution. (4 Bing., N. C., 138.) This is an acquire-
ment of the easement by prescription. It may be acquired by
grant, and a grant will, under certain cireumstances, be implied,
For instance, if I sell a glue factory, the odors from which flow
over my remaining land, I am held to impliedly grant to my pur-
chaser the right to have such odors continue to flow as they did
when I owned it. (5 Met. 8.)

After one has acquired the right to pollute the air in a certain
vicinity he may be compelled to cease to do so, or to move on, if
by reason of the increase of population near by it becomes dele-
serious to the public health.

5. Water. In respect to the rights which the owner of lands
abutting on a stream of water, or through which a stream passes, a
distinction is made as to whether the stream is a natural or an arti-
ficial one. A natural stream or water-course is one which arises at
its source from natural causes and flows in a natural and well-
defined channel. An artificial stream is one that arises by the
agency of man, or if arising from natural causes, flows through a
channel made by man. In natural streams all persons owning land
upon them have certain natural rights as below described. In
artificial streams no such rights exist. Similar ones may be acquired
in them, and when acquired they are easements. Natural rights in
natural streams cannot be interfered with without liability, unless
a right has been acquired to do so. Such a right is an easement.

6. Water Rights. These are called Riparian rights. Land
bordering on natural streams is called +¢farian land, and the own-
ers of it r7parian owners. Every riparian proprietor has the
right (unless he has lost it) to have the water continue to flow in
his stream as it would do by nature.

First, he has the right to have it continue to come down from
above without marked diminution or appreciable increase in vol-
ume. The owner above can, of course, make such reasonable use
of the water as his domestic necessities may require, and he can
increase it by the drainage of surface waters from his farm; but
further than that he cannot go unless he has acquired the right to
do so,

In the second place, a riparian owner has the right to have the
water flow down in its naturally pure condition without being ia
EASEMENTS. 93

 

any way polluted or befouled, and also to flow in its natural chan-
nel without being diverted from its course.

In the third place, a riparian owner has the right to such reason-
able use of the water as his domestic necessities and convenience
may require. That is to say, he may use it for watering his stock,
supplying his household, irrigating his land, turning his water-
wheels (see Chapter XI for limitations on this), and for any other
purpose which will not interfere with his neighbor’s rights below.

Lastly, a riparian owner has the right to have the water flow
down the stream below him in its natural manner and in its natural
channel without being impeded or set back by the lower owner.
These are his natural rights. If the owner above or below has
acquired the right to interfere with any of them, such right, if
permanent, is an easement.

Easements of this kind may be acquired by prescription or by
grant.

If a riparian owner has for a period of twenty years or more,
continuously and under a claim of right, dammed the water of his
stream back upon the land of his neighbor above, or if for a like
period and under like circumstances, has turned the refuse of his
dye-house into it, or has otherwise polluted it so as to render it
unfit for the domestic use of his lower neighbor, or has used all
the water of the stream, or has diverted it from its natural course
and turned it on to his neighbor below in a different place from
where it would naturally enter, if he has done any of these things,
or anything else of a similar nature, for such a period, adversely,
and under claim of right, then he has gained by prescription an
easement in the stream, and he may continue such use of it, and
the right passes to whoever becomes the owner of his land.

As to surface waters the rules of law are quite different. These
may be defined as being all waters not contained in natural water-
courses, that is—all that falls as rain or comes from melting snows,
all that oozes from the ground but does not flow away ina natural
channel, all that comes from the eaves and all that may be con-
ducted on to one’s premises by artificial means. These belong
absolutely to the owner of the land on which they happen to be.
No one else has any rights in them, and the owner must take care
of them as he does of his other property. He must dispose of them
en his own premises, for he cannot collect them in drains and turn
them upon his neighbor’s land, unless he has gained the right to

8
94 MANUAL OF THE LAW.

 

do so, and such a right would be generally an easement. He
cannot even allow his eaves to drip on another’s land unless he has
gained the right to doso either by grant or prescription. (101 Mass.
539) Nor has he any right to surface waters on adjoining land
which percolate through the soil and so supply his wells, etc. His
neighbors have the right to drain their lands, though the effect
may be to make his wells godry. (62 Me., 175.) The matter of
water rights and drainage is one of too great importance to be
fully considered here. The reader is referred to the chapter next
following.

7. Ways. A very important class of easements, known as
rights of way, are the rights which land owners have, in some
cases, of passing over other persons’ land for the purpose of getting
to or from their own premises. Where the owner of a piece of
land has the right by reason of such ownership of crossing the
land of an adjoining owner, he has an easement in such land which
passes to whoever succeeds him in the ownership of his land.

‘Where a person who is not the owner of real estate has the
right to pass over another’s land, or where he possesses such a
right not because of his ownership in adjoining land, such right
is called an easement in gross. This is very like a regular ease-
ment, except that it cannot be sold or assigned by the owner, and
does not pass to his heir.

Highways are in this last sense public easements, the rights of
the public in them being very similar to the rights of owners of
private easements of way.

Rights of way are public and private. The former include high-
ways and are treated of in Chapter XIII. The latter include foot
ways, carriage ways, and drift ways. The grant of @ way, with-
out specifying what kind of a way, has been held to mean a way
for all purposes. (Com. 114.) The grant of a “ carriage way ” was
held to include the right to use the way for foot travel; but a foot-
way cannot be used as a carriage way, nor can a drift way (which
is a way for driving cattle) be used as a carriage way though it
may be used for the passage of teams. (41 Me., 320.)

How Ways are Acquired. Easements of way over land may
be created by express grant, that is by being purchased and deeded
like any other interest in real estate; or they may be acquired by
prescription or long adverse use, waiich in theory supposes an

ancient grant which has been lost; or they may be created b,
necessity,
EASEMENTS. 95

 

8. Ways of Necessity. A way of necessity arises where one
sells land to which there is no other means of access except over
land which he still owns. For example: If I sell the back part
of my farm and there is no way of getting to it without going
over the land of a stranger, except by crossing the front part, a
way of necessity arises in favor of my grantee; he has, by reason
of that fact, an easement of way over the land which I reserve.
(22 Pick., 102.)

As to what degree of necessity will create a right of way the
rule is that it must be absolute. There must be no other possible
legal way by which the grantee can get to his land. Consequently.
where a man sold land which was surrounded on on all sides by
water except the side which he reserved, and there was no means
of access to it by land except over the grantor’s land, it was held —
that such a necessity would not create a right of way over the
grantor’s land. The grantee could get to it by water. (3 Mc-
Cord, 131.) Convenience is not the test; there must be an abso-
lute necessity. (27 Verm., 460.) The same rule applies, as to
ways of necessity, if you sell the front part of your farm, reserv-
ing the rear portion, to which there is no means of access except
over the part which you have sold. You are held to have retained
the right to cross such land, though your deed said nothing about
it, but on the contrary said the land was free and unincumbered.
(4 Gray, 297.)

A right of way is a right to pass over another’s land in a par-
ticular line. A right to pass over in any direction or all directions
is not an easement, and cannot be acquired by prescription. (11
Gray, 246.)

When a right of way is created by necessity the person over
whose land it passes must designate the line on which it shall run,
as soon as requested by the owner of the way. And he must do
so in a fair and reasonable manner, though he may pick out such a
line as will least inconvenience himself. (24 Barb., 44.) If he
does not do so on being requested, the owner of the right may
select a suitable route for the way, and having once selected it he
cannot make a change. (24 Pick., 102.)

A way of necessity terminates as soon as the necessity which
occasioned it is removed. (18 Conn., 321.) Consequently where
one owned a mill to which there was a private way over another’s
land which was used as a way of necessity, and the highway com-
9 MANUAL OF THE LAW.

 

missioners after a time opened a public road by the mill which
gave free access thereto, it was held that the private way was
thereby terminated. (47 N. H., 230.)

9. Ways by Immemorial Use. Rights of way may be created
by prescription, that is by continuous, adverse use for twenty years or
more. The use must have been continuous, not necessarily every
minute of the time, but practically continuous according to the cir-
cumstances of the case, and without any abandonment or entire
interruption for twenty years or more. Itis not necessary that the
use be by the same man during the whole period. If successive
owners of the land so use it for that period the right will accrue.
(2 Allen, 277.) The use must have been open, notorious, peace-
able, without license, and it must have been adverse or against the
owner’s interests and without his permission (24 Pick., 106.) If
it were secretly or covertly used, so that the owner could not know
about it, no right would accrue; or if it were forcibly used, or
against the owner’s protests (11 Gray, 148) it would avail nothing,
no matter how long used. Likewise if used by permission, as for
a rent paid, nothing would be gained. (13 N. H., 360.) And the
use must be always under a claim of right. So important is this
that the New York court said: “A single lisp of acknowledg-
ment by the defendant that he claims no title, fastens a character
upon his possession which makes it unavailable for ages.” (17
Wend., 564.) And if it complies with all the above conditions
the use must have been of a way in some regular and defined line.
No right can be acquired by prescription to wander over a man’s
farm in any manner or direction that the party’s whim or con-
venience may suggest. That can give no rights at all. (5 Pick.,
485.)

10. Ways by Purchase. Rights of way may lastly be
acquired by grant or purchase. In order to gain a permanent
right by this method the grant must be by a regular deed, duly
executed, signed, sealed, delivered, etc., with all the formalities
required in a deed of land. An easement being an interest in real
estate cannot be created or transferred by mere oral agreement. If
the right were given only verbally, though duly paid for, it would
amount to only a license, subject to be revoked. (2 Allen, 578.)

Where a right of way is given by grant, and the deed does not
specify the location of the way or the line on which it shall run,
the selection of the line is then left to the grantee or owner of the
EASEMENTS. 97

 

way; and it is his duty to make such a selection as will be of least
detriment to the owner of the land over which it goes. (3 Burge
Col. and F. Law, 441.)

11. How Ways may be Used. If the farmer finds that his
neighbor has a right of way across his farm, or if he thinks of sell-
ing such a right, or of buying one across his neighbor’s farm, it is
important to know to just what uses such a way may be put. And
first, it is to be observed, that if the way was granted for any
special purpose it cannot be used for any other purpose. (31 N.
Y., 366.) Thus the grant of a way “on foot for horses, cattle and
sheep,” does not authorize the use of it for carrying manure in a
wheel barrow. (1 Q. B., 792.) The grant of a way “for agri-
cultural purposes” does not include the right to draw coals over it
nor to transport lime from a quarry. (Holt, N. P., 455.) But
where a general right of way is granted, or acquired by any other
means, it gives the right fo use the surface of the soil on a par-
ticular line for the purpose of passing and repassing, in an
orderly and reasonable manner, by any proper and customary
method, and also the right to properly fit the soil for such pur-
pose, by leveling, grading, graveling,etc., or such other means as
the necessities of reasonable use may reguire. (2 Met., 457.) The
owner of the way may, of course, keep it in repair; but he can do
nothing more than this. He does not own, and of course cannot
take away any of the soil, stones, etc., that may be lying in the
way (9 Allen, 164), though he may use them for preparing or
repairing it. (44 N. H., 539.) It is usually the duty of the
owner of the way to keep it in repair (12 Mass., 65), but the
owner of the soil may use the way, and may agree by covenant to
keep it in repair, or he may be bound by the terms of his deed or
by prescription to do so. (12 Mass., 65.)

The owner of the land over which the way passes is entitled to
every reasonable use to which the way or the soil under it may be
put, which does not interfere with the right of passage and repair
which belongs to the owner of the way. (24 Pick., 71.) He
may maintain a fence or fences across the way if he sees fit to, pro-
vided he places suitable bars or gates for the convenience of the
owners of the way (31 N. Y., 366), and the owner of the way
must open and close the same unless an open way was expressly
granted. (44 N. H., 339.) He may even put a building over and
ar-oss the way if he leaves an archway through it large enough
98 MANUAL OF THE LAW.

 

to admit of the free passage of its owner with any reasonable load
of materials that he may have need to carry. (2 Met., 457.) He
may sink a drain under it, whether it be a private or public way,
provided he does not interfere with the easement (6 Mass., 454);
and he may maintain trespass against any one who injures it or
trespasses upon it. (8 Allen, 467.)

If the way gets out of repair so as to become impassable, the
owner of the way has no right to travel outside of the limits of
the way in order to get around the impaired part. His business is
to fix the way so that he can use that instead of going on to other
land. (31 N. Y., 372.) In this respect a different rule applies to
public ways. If they become impassable the public has the right
to enter upon adjacent land in order to get around the barrier. (44
N. H., 631.) But they must occasion no unnecessary injury to
such adjacent land in so doing. (7 Barb., 309.) If the owner of
the land unlawfully obstructs a private wav the owner of the way
may then pass over adjacent land to avoid the obstruction (53 Me.,
162), though a New York court held that an obstruction so placed
there would give the owner of the way no right to deviate from
the way, his remedy being either to abate the nuisance or to bring
an action for damages. - (7 Barb., 309.)

As to how wide a right of way should be, the rule is that if the
matter is not settled in the grant, by having the way specifically
defined, the way need only be such as is necessary and convenient
for the purposes for which it was granted. If the grantee has
been using a very broad way, the grantor or owner of the soil may
narrow it, or put buildings upon it, so long as he leaves it of suffi-
cient width for the grantee’s legitimate use. (2 Pick., 291.)

If a dominant estate, to which a right of way is appurtenant, is
divided, the owner of each part has the right to the use of the
way. (15 Minn., 142.) Thus if I, as owner of my farm in
Utopia, have the right to pass to and from it over my neighbor's
land, and I leave the farm to my two sons or sell it to two men or
a dozen men, each will have the right to the use of the way. This
might work quite a hardship if I were to divide my farm into a
great many small lots and sell them to as many different men, each
with large families. What was originally supposed to be a way
for my individual use might become really a thoroughfare over
which hundreds of people have the right to travel; but such is
undoubtedly the law. (1 Cush., 285.) But this rarely occurs.
EASEMENTS. 99

 

12. Obstruction of Ways. If a way is obstructed unlawfully
by the owner of the land over which it runs, the owner of the
way may remove the obstruction if he chooses and can doso peace-
ably, or he may sue the owner of the land for the damages caused
by the obstruction, and if the owner persists in obstructing, he
may get a perpetual injunction restraining him from interfering
with the way. If any stranger obstructs the way, it is a trespass;
and he may be proceeded against accordingly by either the owner
of the way or the owner of the land.

13. Termination of Ways. Rights of way may be termi-
nated in several ways. A way of necessity ceases or the right to
it terminates, as we have seen, the moment the necessity which
occasioned it disappears. (47 N. H., 230.) If the necessity return
it is doubtful if the way would revive. Probably it would not. (g
Gray, 421.)

The union of the two estates in the same proprietor destroys all
easements. (108 Mass., 202.) That is to say, if the owner of the
tight of way should become the owner of the land over which the
land passes, the way would cease to be an easement, but would
become an ordinary property right. The subsequent sale of either
of the estates would not revive the easement. (16 Gray, 471.)

Abandonment of the way will work an extinguishment of the
right under many circumstances. If the owner of the way
declares that he abandons it, that ends his rights; and if he
ceases to use it that may have the same effect. Mere failure to use
a right of way which has been acquired by grant will not, how-
ever, of itself amount to an abandonment, unless there was an
adverse enjoyment of it by the owner of the land over which it
ran, (112 Mass., 231.)

A right of way may terminate by agreement of the parties,
that is by formal release of the right.

14. Lateral Support. Every land owner has the right to
have his land supported in its natural position by the adjoining
land of his neighbors. This is a natural right; and if any one of
the neighbors removes this natural support by digging away the
adjacent land, or by making excavations near the line so that the
land is allowed to fall from its natural position, such neighbor
becomes liable for the damage so done. (122 Mass., 199.)

But this right to support afforded by adjacent land extends only
to the land which is supported, and does not include the right to
100 MANUAL OF THE LAW.

 

have any buildings, or other weighty improvements, which the
owner may place thereon, supported also. So that should the
support be wrongfully removed and the land fall from its natural
position, damages could be recovered only for the injury to the
land, and nothing could be recovered for the injury to any building
that might be on it. That is to say, the natural right of lateral
support extending only to the land supported, a man cannot add te
his natural right, or increase his neighbor’s burden, by placing
buildings or other weighty objects near the line. Of course he
can place them there if he sees fit, but if they fall when his neigh-
bor removes the lateral support, he can not recover any damages
for them. If one is not content to enjoy his land in its natural
condition, but wishes to put large or heavy buildings directly upon
the edge of it, he must either make an agreement with his neigh-
bor to have them supported laterally, or else lay his foundations se
deep or take such other precautions as will insure their safety, ne
matter’ what excavations his neighbor may afterwards make on his
own land in the exercise of his rights.

But it is said that a right or easement to this additional lateral
support which a building near the line may require from adjacent
land, can be acquired by prescription or uninterrupted use for
twenty years or more. So that if a building has so stood for
twenty years, the adjoining land has become burdened not only
with the lateral support of the land, but of the building also.
Such is the English rule, and such is the doctrine laid down by
American text writers. But it is doubtful now whether such is the
law in this country, and it would at any rate be safest if one wishes
such an easement to get it by purchase from his neighbor. (49
Ga., 19.)

Subjacent Support. What has been said regarding adjacent
support is true also of subjacent support, or the support which
land receives from the rocks and other minerals underneath
it.” The owner of land has the right to have it supported in its
natural position by that which lies below, so that if one man owns
the surface and another the subsoil or the mines underneath, the
latter cannot remove the support naturally afforded by his land to
that above it without rendering himself liable for the injury caused.
(66 Penn. St., 430; 80 Id., 81.)

Mf, therefore, the farmer sells the coal mines that may underlie
gis farm, the purchaser must see to it that in excavating for and
removing the coal he does not disturb the support to the land above.
EASEMENTS, 101

 

He may change the natural support, and substitute artificial pro
piers, arches, or the like; but they must be permanent and
stantial, and must furnish the same absolute support that thefnafu-
ral substrata did. (Bell v. Reed, 31 Legal Int., 389.) |

But this right of subjacent support like the right of latera\
port, extends only to the land supported, and does not includ CLE,
right to have buildings so supported unless such additional right
has been specially acquired in some way. This is perhaps the best
way that the law of the subject can be stated generally. There
are some exceptions to it. For instance, an implied right to sup-
port arises in favor of any buildings that may be standing upon the
land at the time the subsoil is granted. (2 Allen, 131; 122 Mass.,
199.)

15, Water as a Support.‘ Where underground waters afford
the support for overlying land, the owner of such land has no
natural right to the support so afforded, and if the subsoil is owned
by another party he can drain that water off, though it cause the
land to subside somewhat. (38 L. J. Exch., 126.) But if these
underground waters support surface waters which lie in a defined
body or stream, then they cannot be removed without liability.
(L. R., 6 Ch. App., 483.)

When any right of support, which does not exist as a natural
right, is acquired by any means, it is an easement. So whena
right is acquired to interfere with any natural right of support,
such right is an easement.

Easements of support are acquired by grant and by prescription.
Grants of easements of this sort are oftenimplied. If the farmer
sells his farm, reserving the mines underneath it, he impliedly sells
the right to support of that farm and the buildings standing upon
it at the time, but not to any additional buildings that may be put
upon it. Likewise if he sells the mines under his farm he impli-
edly reserves similar rights of support. (66 Penn. St., 429.) If
anything further than or different from this is desired it must be
expressly granted or reserved in the deed.

16. Mining Leases. These are grants generally for the
express purpose of removing the subjacent soil, and it is customary
to specify in them the respective rights of the parties in regard to
the removal of support from the surface soil. But it seems that if
there is nothing said upon this point that there is in the case of
these leases an exception to the general rule that the surface must

  
  
102 MANUAL OF THE LAW.

 

be supported, and that the lessee in the absence of any agreement
to do so is under no obligation to leave any support whatever for
the surface soil. (Goddard on Easements, 223.)

17. Side Support for Houses. The owner of a house may
acquire the right by grant or prescription of having it supported
by an adjoining house, and this right is an easement. If a man
builds two or more houses together, constructed in such a manner
that each requires the support of the other, and then sells one of
them, or sells them to different parties, a right to have this mutual
support continue becomes incident to the property; the law pre-
sumes a grant of this easement in favor of each house. (15 N.
Y., 611.)

The owner of such a house cannot remove it or tear it down
without shoring up the other building, or otherwise replacing the
support which his building afforded.

But no easement of support arises as in favor of one building
against another because the two happen to be standing in juxtapo-
sition, no matter how long. Nor does it arise if one building
totters over and leans against another which stands erect. (5
Rich., 311.) Notwithstanding this one should not recklessly or
negligently take down his own building in a way to cause injury
to his adjoining neighbor. He must be careful how he does such
work, and must give his neighbor notice of what he intends to do,
so that such neighbor may have opportunity to protect his premises
by props and guards, otherwise he may be liable for the injury
caused. (22 Mo., 566.)

18. Party Walls. These are walls built on the line between
two adjoining owners, and are generally owned jointly by the twe
proprietors and are for their common use. Party walls usually
come into existence by the mutual agreement of the parties, or
under the operation of local statutes which have been enacted in
many of the States regulating this matter. These statutes some-
times provide that where one wishes to build on a city lot, for
instance, he may build the wall half on the adjoining lot, and
when his adjoining neighbor gets ready to build he may make use
of half the wall by paying half its cost. If one owner builds two
houses or stores with a common wail between them, and then sells
one of the buildings, the wall becomes a party wall. It may be
said that whenever two buildings stand together with only one
wall between them into which they are both built, and from which
EASEMENTS. 103

 

they both receive support, such wall is presumed to be a party
wall, and the rights accruing from such a wall will appertain to it
unless there is some clear showing to the contrary. (4 Johns, Ch.
334.) And when such a wall needs repairing or rebuilding, it is
the duty of each party to contribute an equal share of the expense.
(15 N. Y., 601.)

19. Rights in Party Walls. When a party wall once gets
into existence the following are as near as can be stated the respec-
tive rights of the parties in it: Each party has the right to the
support of his building, the joists, roof, etc., on the party wall; and
this right continues as long as the wall remains sufficient for that
purpose or the building continues to need such support. If one of
the buildings becomes dilapidated, and to repair it necessitates a
tearing down of the party wall, the owner may, after reasonable
notice to the other party, take down the party wall and erect a
new one in its place which will provide the same or better support
than the old one. And if he takes no unreasonable time in doing
this and uses due skill and care, he is not responsible for the injury
he may have caused the other party by reason of his building
being exposed to the weather, or his loss of rent or intermission of
business. But if the house is not dilapidated or the party wall
needs no repair, the owner simply wishing to build his part higher
or make other additions to it, then he must do so at his peril and be
liable for any injury he causes the other party. (15 N. Y., 601.)

20. Miscellaneous Easements. Though the above are prac-
tically the only easements commonly met with, many others may
exist, and some are clearly recognized. Still the law will scrutinize
any novel right of this sort which may be granted by a land
owner, and will not attach to it all the incidents of an easement, so
that it will become binding on his heirs and assigns forever, unless
it seems clearly proper and best that this should be done. The
policy of the law is decidedly and properly against allowing novel
modes of holding real estate, or of permitting fanciful interests
in lands to be created.

Of course, a grant of any sort of an interest of this nature is
perfectly valid and binding as against the grantor and between the
original parties to it; but it is doubtful whether it would partake of
the full nature of an easement so as to become binding on subse-
quent holders of the grantor’s land, or to pass to the heirs or
assigns of the grantee.
104 ; MANUAL OF THE LAW.

Among the few other rights which the courts have adjudicated
to be easements are that of piling logs and lumber on land for the
accommodation of a mill; the right of floating logs in a private
stream (24 Mich., 284), which right is given to lumbermen by
statute in Michigan and other lumbering States; and also the right
to lay gas pipes through another’s land (38 Mich., 154), which is
similar to the right to lay and maintain a drain there.

i
CHAPTER XII.

OF WATER RIGHTS AND DRAINAGE.

 

1. Conditions in which Water Exists. 8. Artificial Water-Courses,

2. Brief Statement of General Rule. g. Fublic Drains, ete.
3. Streams or Natural Water-Courses. to. Surface Waters.

4. Rights in a Water-Course, . 11. Underground Waters,
5. Use of Water for Running Mills. 12. Right to Eaves Drip.
6. Acquirement of Mill Privileges. 13. Right of Passage in
7. Use of Water for Irrigation. Streams,

The matter of the rights and duties of a land owner, in connec-
tion with the water that may flow through or be upon his land, is
ene of such importance that in addition to what was stated upon
the subject in the chapter on Easements, it seems well to give the
following review here in a chapter by itself:

1. Conditions in which water exists. With respect to the
condition it may be in, water will be found to exist in three forms,
namely, as running streams, surface waters, and underground
waters; and the rfghts of a land owner therein will be found to
depend largely upon which of these conditions the water may be
in,

2. Brief Statement of General Rule. Briefly stated a land
owner has the right to havea running stream or natural water-
course remain as nature made it, without being interfered with by
the owners above or below him. Surface waters, like the soil of
his land, are his, and he may do as he pleases with them; but he
has no right to drain them upon another’s land, while the waters
under the earth follow one or the other of the above rules accord-
ing to whether or not they are known to exist there as well-
defined underground currents.
106 MANUAL OF THE LAW.

 

It becomes necessary, therefore, to define, with accuracy, these
different conditions in which water may exist.

3. Streams or Natural Water-Courses. A natural water-
course is a stream of water flowing in a defined channel, and
having well-defined banks or sides, and discharging itself into some
other body of water. (9 Cush., 171; 26 Penn. St, 407.) Its size
is unimportant. It makes no difference how small it is, nor is it
necessary that its flow be constant, But it must be something
more than mere surface drainage over the face of a tract of land,
ora flow of water occasioned solely by some extraordinary cause,
as the melting of an unusual fall of snow or a very heavy shower.
All creeks, brooks, rivers, and streams having a continual flow are
water-courses ; but swales, marshes, ponds, and stagnant pools are
not. Where water rose from a spring and ran off for a few rods
in a well-defined channel, and then came to marshy ground
where it spread out considerably, but still flowed sluggishly in a
depression, but not with sufficient current to break down the grass
till it reached another’s land, who had a watering place in it for
his cattle, which was supplied by this water, the court said it was
a water-course, and that the upper proprietor had no right to stop
its flow. (11 Cush., 195.)

4, Rights in a Water-Course. The owner of Jand, through
which a water-course flows, has the right to have it continue to
flow substantially as it would do by nature, without being unreason-
ably diminished or befouled by the owner above him, or set back
by the owner below him. He has the right to put it to all reason-
able and proper uses for domestic purposes, watering his cattle, or
supplying power to his mill, his use in all these respects being
limited to what is reasonable. (50 Me., 604.) As to what isa
reasonable use will depend upon the circumstances of each partic-
ular case. No general rule can be laid down for all cases. Any
use which prevents the lower proprietor from making a reasonable
use of the water will be unreasonable. If the stream were a very
small one it would be unreasonable, and hence unlawful, to throw
the refuse of a dye-house into it so as to pollute the waters as they
flow down, (1 Washburn on Easements, 288.) On the other
hand, if the stream were larger this might be a proper use. (44
N. H., 584.)

On very small streams or in times of drouth, the rule seems to
WATER RIGHTS AND DRAINAGE. 107
#

be that each proprietor may use what water is necessary for those
absolutely necessary purposes, such as supplying his household and
watering his cattle. He may do this even though it takes all the
water in the stream. But he cannot use any aside from what
these natural wants require if it diminishes the water to the detri-
ment of those below. (3 Scamm., 492.) He cannot, under such
circumstances, use the water for irrigating or manufacturing pur-
poses. Such is the rule laid down in Illinois, followed in Califor-
nia, and affirmed in Texas and Pennsylvania, (31 Texas, 335;
68 Penn., 123.)

If the upper proprietor put the stream to unreasonable use,
divert it, befoul it, or diminish it, except in the case above stated,
he is liable to an action for the damage occasioned, or to an injunc-
tion restraining him from continuing it.

As one has the right to have the water flow down to him in its
natural state from the upper proprietor, so he has the right to have
it continue on its course, and to flow down unobstructed on to the
proprietor below. Consequently, the lower owner cannot dam
it back without becoming liable for the injury. (3 Verm., 308.)

Of course, if the stream below becomes clogged or obstructed
by natural causes, as by a deposit of leaves, and the water sets
back upon one’s land, he has no remedy but to clear the stream,
and he has an implied license to enter and do this, and such obstruc-
tions may be left on the bank of the stream, (21 Pick., 341.)
These are the zatural rights that the land owner has in the stream
passing through his land. He may acquire others or lose these by
grant or adverse use. When so acquired or lost they become ease-
ments, as was explained in the chapter on that subject.

5. Use of Water for Mills. We have seen in the preceding
section that one may use the force of water flowing through his
land for the purpose of propelling his machinery. The same gen-
eral rules apply in this case as in those above indicated. The mill)
owner may put a dam across the stream for the purpose of getting
a head of water, but he must not thereby back the water on to his
upper neighbor’s land without permission; nor can he unreasonably
interrupt the flow of water on to his neighbor below. A right to
do both of these things may be acquired by long use. In most
States at least twenty years, or it may be acquired by purchase.
In the latter case it must be conveyed by deed, as it amounts to an
interest in land. If such a right be granted orally it amounts to
a mere license, revocable at the pleasure of the giver.
108 MANUAL OF THE LAW.

 

If the stream will only supply the natural wants of those living
along its course, no one of them can apply it to any artificial pur-
pose, as the turning of a mill.

An important question often arises as to whether the first occu-
pant of a mill site gains any rights by reason of such priority,
which would prevent others above him from erecting dams across
the stream. Though there is conflict of opinion, the general doctrine
is, that such prior occupancy gives no rights. Mill owners have
no rights beyond those of any other owners along the stream.
That is, their rights to use the water are to be measured by the
same rule of reasonableness as applies to other persons. While a
mill owner has the right to flow his own lands up to the line of his
neighbor, he must, in constructing his dam, take into account the
annual floods or freshets which may occur in the stream, and must
see to it that these floods or freshets do not raise the water above
such line. But this extends only to those periodical freshets which
he can anticipate, and not to any unusual or extraordinary flood, or
breaking away of an upper dam. (9 Watts, 119.)

6. Acquirement of Mill Privileges. The right to set the
waters of a stream back upon the lands of an upper proprietor
may be acquired by adverse enjoyment for a term of twenty years
or such period as is prescribed by the statute of limitations of the
State wherein the mill privileges are situated. By a continuous
and uninterrupted use for such period the mill owner acquires an
easement or right to obstruct such stream to the extent to which it
has been enjoyed. (102 Mass., 454.)

Such a right may also be acquired by purchase, as above indi-
eated, and where parties cannot agree for the purchase of such a
right, or where owners refuse to sell such a right, there are statutes
providing for taking of the land for mill privileges under the
right of eminent domain. These statutes are similar to those
which provide for the taking of land for railways or other public
uses. It must be made to appear that the proposed mill is in some
sense a public necessity, otherwise these statutes will not apply.
Such statutes are always strictly construed, and must be followed
to the letter.

7. Use of Water for Irrigation. The use of water for irri-
gating lands comes within the class of artificial, rather than natural,
uses; and whether or not a man can divert the waters of his stream
for this purpose, depends upon whether it will deprive lower pro-
prietors of reasonable use of the water in its natural- channel. If
WATER RIGHTS AND DRAINAGE. 109

 

it does interfere with such reasonable use, it cannot be taken for
‘such purpose. As to what is a reasonable use depends upon the
circumstances, and is to be determined by a jury. (11 Cush., 191;
12 Wend., 330.)

8. Rights in Artificial Water-Courses. The streams thus
far spoken of have been such as exist by nature; but with respect
to streams that are artificial in their construction the rules above
laid down do not apply. Artificial streams generally belong
entirely to the person who makes them. For example: Suppose
my farm has no natural drainage outlet. I obtain from my neigh-
bor who owns the land between mine and the river the right to
put a drain or artificial water-course through his land. Such drain
when constructed is mine. My neighbor has none of the rights in
it that he would have were it a natural water-course. I may stop
the water whenever I please, or flow it down at intervals, or roil it,
or befoul it, and he cannot complain, so long as I do not commit a
nuisance or violate the terms of the agreement under which the
drain was constructed.

9. Public Drains, Town and County Ditches, ete. We
have seen that there is no natural right on the part of a land owner
to drain his lands upon or across the lands of an adjoining owner.
If there is no natural outlet for his drainage he must, if he desires
to drain his land, procure from the owner of land intervening
between his and the natural water way the right to make one. It
may happen that this cannot bedone. The parties may not be able
to agree; or it may happen that there is a large tract of low land
belonging to several owners, which has no good natural drainage
eutlet, or there may exist large swamps and low marshy places
which for the health of the community should bedrained. For the
purpose of supplying these necessities there are in most of the
States public drain laws, by virtue of which large artificial water-
courses are constructed at public expense. The benefits which
have been derived from the operation of these laws can hardly be
estimated. In Michigan alone many thousands of acres of her
best lands have been thus reclaimed from a nearly worthless con-
dition of low-land or swamp. The details of these statutes, of
course, cannot be given in this treatise. In brief, they provide for
the appointment or election of an officer called a “ Drain Commis-
sioner,” who has the general supervision of the construction of
public araliis, When it is desired to construct a public drain,
110 MANUAL OF THE LAW.

 

any five or more freeholders residing or owning land along its
proposed course, may make application to the commissioner, who
proceeds at once to examine the line of the proposed drain, If in
his opinion it is necessary for the public good that the application
be granted, he proceeds to carry out the provisions of the law for
the construction of the drain. The reader who is interested in this
subject should study carefully the statutory provisions of his State
relating to it.#

10. Rights in Surface Water. By surface water is meant
not only that which comes from falling rains and melting snows,
but also that which oozes out of the ground from springs or
marshy places and finds its way over the surface. If it becomes
collected into a defined stream with a bed and banks, it loses its
character as surface water; but until it does so, it belongs abso-
lutely to the owner of the soil, and he may do with it what he
pleases,

If surface waters naturally find their way, by percolation, upon
the lower lands of adjacent owners, such owners may prevent such
flow by raising their lands or by building dykes, without liability.
Or, if one, by raising his land, causes the surface water to settle
upon adjacent lands in a manner differently from what it originally
did, he is not liable for the injury resulting; in other words, there
is no principle which will prevent the owner of land from filling
up the wet and marshy places upon it, though such filling may put
an end to its being the receptacle of the surface waters of adjacent
lands, or may cause the waters that fall upon it to find their way
upon such adjacent lands. (29 N. Y., 467.)

But surface waters cannot be collected into a drain and turned
upon a lower proprietor without liability. If it is necessary to do
80, permission must be obtained from such proprietor to run the
drain through his premises, and such permission should be given in
writing duly signed and sealed, in which case it will be an ease-
ment. If such proprietor refuses to give such an easement the
only recourse is a petition to the drain commissioners or proper

 

*The Michigan statute relating to public drains constitutes chapter 40 of Howell’s
Statutes, commencing at page 474. The State of Michigan has published for dis-
tribution to officials a book relating to the duties of township officers by Judge
Green of Bay City. In this book the duties of Drain Commissioners are very
amply set forth. Every such official should carefully study it. The book may be
got from the county clerk, and should be in the office of every township clerk,
WATER RIGHTS AND DRAINAGE. nr

 

officials for the establishment of a public drain as heretofore set
forth.

11. Rights in Underground Waters. In underground
waters the law does not seem to recognize any rights unless they
flow in a well-known and well defined channel. (43 N. H., 573.)
Consequently, if in digging a well upon your land you tap the
veins which supply your neighbor’s well, or cut off the supply of
all the wells in the community, you are not liable for the injury.
(18 Pick., 117.)

12. Rights to Eaves Drip. A land owner has no right to so
erect a building as that the drip from its eaves will fall upon his
neighbor’s land, though it seems that he may acquire the right
by prescription, or by grant or license, The right to have water
drop from a roof upon another’s land does not include the right to
collect such water in a spout or gutter and discharge it upon such
other’s land; and it seems that one has no right to discharge his
eaves drip so near the boundary line that it will flow into his neigh-
bor’s cellar. (15 Barb., 96.)

18. The Right of Passage on Streams. At the English
common law streams in which the tide ebbs and flows were
regarded as public, and the public had the right to navigate them.
In this country any stream which is capable of being put to prac-
tical use for purposes of navigation is regarded as so far public,
that it may be used for that purpose. (8 Mich. 18.) Thus logs
may be floated on any stream which will carry them. (42 Maine,
150.) This rule extends only to streams which in their natural
state are capable of valuable floatage, but not to those which may
be so used only during floods or by artificial means, (28 Ind,

270.)
CHAPTER XIII.

OF RIGHTS IN THE ROAD.

8. What is a Highway? 14. Misconduct in the Road.

2. How Roads may be Used, 15. Obstructions and Nuisances,
3. Travel with Teams. 16. Abatement of Nuisances,

4. Which way to Turn, 17. How Roads are Made.

5. Crossing a Road, 18, By Legislative Authority.

6, As to Passing, 19. Right of Eminent Domain,
7. Horseback Riders, 20. By Dedication.

8. Foot Passengers. 21. By Prescription,

g. Rate of Speed. 22. Repair and Maintenance of
1o. Vehicles must be Roadworthy. Roads.
11. Stopping by the Roadside, 23. Liability for Failure to Repair,
12, Leaving Horses Untied. 24. Discontinuance of Highways,
13. Fractious Horses.

The farmer makes so much and such constant use of the high-
ways leading to and from his farm that it seems proper to consider
his rights and duties in them here in connection with rights upon
his own land, rather than defer the subject to the latter part of this
book where personal rights and liabilities are considered.

1. What is a Highway? A highway is defined as a road
which every citizen has the right to use (16 Mass., 33), and the
term is applied not only to ordinary streets and roads, but also to toll
roads, railroads, canals, and navigable streams, In this chapter,
however, the law of the subject will be considered with reference
only to our ordinary public roads, first setting forth what should
be the proper conduct of persons using them, and then touching
upon the matter of their construction, maintenance, and the ways
in which they may be discontinued.

2. How Roads may be Used. Roads may be used by all per-
OF RIGHTS IN THE ROAD. 113

 

sons for the purposes of travel, in an orderly and proper manner,
either on foot or by any reasonable mode of conveyance. Gener-
ally stated, the law gives to the public the right to pass and repass
through the highway in an orderly manner, and to keep the way
in repair. Of country roads this statement of the law is perhaps
strictly true. The public has no other right in them, save that of
travel and repair; but in the streets of cities and villages the public
has somewhat larger rights. Under proper municipal authority
the public may put such streets to other uses besides those of
travel, uses which are necessary for the comfort, health, and pros-
perity of the community, like the laying of water mains, gas
pipes, drains, sewers, etc. (15 Barb., 210.) But the individual
has but little more than the right of travel. He must travel in a
customary or at least a reasonable manner, either on foot, horse-
back or in any vehicle drawn by animal power. As to whether he
could travel there with a steam road carriage or a self-propelling
farm engine depends upon whether such a use of the road is
reasonable. At the present time travel in highways by such means
cannot be regarded as improper or unreasonable. The develop-
ment of civilization necessitates gradual innovations of this sort.
(114 Mass., 350.) Noor is it longer unlawful to proceed along the
highway with an elephant or a train of wild animals, and if one’s
horse gets frightened at such things he has no remedy against
their owner. (38 Barb., 14.)

In Michigan the court held that persons using horses for travel
on the highways have no superior rights over those traveling by
other permissible means, and that the fact that a horse was fright-
ened by a steam road engine is not of itself sufficient to render the
owner of the engine liable for the injury resulting. The steam
engine in the highway is not necessarily a nuisance. (34 Mich.
212.) The Illinois court uses this language: “To say that a new
mode of passage shall be banished from the streets, no matter how
much the general good may require it, simply because the streets
were not so used in the days of Blackstone, would hardly comport
with the advancement and enlightenment of the present age.”
(21 IIL, 516.)

It has been held that the highways may be used for the purpose
of moving buildings in them, providing such use does not neces-
sarily or unreasonably obstruct the free passage of the public over
and upon it. The law will justify such obstructions if of a partial
114 MANUAL OF THE LAW.

 

and temporary nature, if they arise from necessity and are for the
convenience of mankind, particularly if they occur in the custom-
ary or contemplated use of the highway. The question of their
necessity and reasonableness, and of the customary use, are for the
consideration and determination of a jury under all the circum-
stances of each paticular case.

But a person moving a building through the street must see to
it that he does not injure the shade trees growing upon either side,
\nor damage other objects, for he will be liable if he does. (35 N.
H., 257.)

The street may be used for temporarily depositing goods, for
loading or unloading, if necessary, and the work is done with des-
patch and caution. (43 Iowa, 199.) Likewise a street may be
temporarily used for the purpose of erecting or repairing a build-
ing. If the use of the street is necessary for that purpose and the
obstruction is not unreasonable and caution is observed to prevent
injury and inconvenience, the law will permit a temporary and
limited use of it for that purpose. (1 Serg. & Rawle, 219; 1
Denio, 530.)

Of course no one can throw sticks or stones or deposit rubbish
in the highway. That is a nuisance and an indictable offense.

3. Travel with Teams, etc. The rules of law respecting the
conduct of travelers on the road have reference mainly to travelers
with vehicles drawn by horses. Foot passengers and equestrians
really need no rules save those which reason and prudence sug-
gest, and for the most part the law provides no other. The injury
resulting from collisions between footmen are at most only trivial,
but a collision between vehicles often results in serious destruction of
property if not injury to life and limb. Hence it becomes neces-
sary to provide rules for the prevention of such catastrophies, and
it may be laid down as a general principle that the one who is
guilty of a violation of such rules which results in injury to
another party who is in no way blamable is responsible for the
damage done.

4, Which Way to Turn. To prevent collision and secure
travel from interruption it is necessary that there be certain well-
known rules in regard to the meeting of vehicles and teams.
These rules have been called the daw of the road, and the most
important one of them is that when two travelers with teams
coming from opposite directions meet in the highway each shall
OF RIGHTS IN THE ROAD. 115

 

turn to the right in passing. In England the rule, based on long
honored custom, is to keep to the left, which is just the opposite of
our rule. The American rule is enforced by statute in, I think, all
of the States. The statutes of the different States upon this point
are quite similar, the one in Michigan, which may be given as a
sample, being as follows: «“ Whenever any persons shall meet
each other on any bridge or road, traveling with carriages, wagons,
carts, sleds, sleighs or other vehicles, each person shall seasonably
drive his carriage, or other vehicle, to the right of the middle or
traveled part of such bridge or road, so that the respective car-
riages or other vehicles aforesaid may pass each other without
interference.” A penalty of twenty dollars is provided for a vio-
lation of this provision, and the offending party is made liable for
all damage caused by the offense.

A traveler is not obliged to keep on the right side of the road
all the time. He may drive where he pleases, or where the going
is best, so long as he turns to the right when he meets another
team. If his load be so heavy or his vehicle so cumbersome that
he cannot seasonably turn out so as to yield the left side of the
road to an approaching team or vehicle, then he had better keep to
his own side. (4 Esp., 273; 14 N. H., 307.) Yet it should be
observed that this rule of the road is not an absolute or inflexible
one. Circumstances may and often do arise in which a deviation
from it is not only justifiable but even necessary. In the crowded
streets of a large city reason and prudence may often dictate a
departure from the rule, and reason and prudence should in such
case prevail. If one were driving on his right side of the street
and should see ahead of him a team or horse coming at a furious
rate on its wrong side, he would not be justified in remaining there.
It would be his duty to turn out so as to avoid an accident though
he had to turn the wrong way. (8 Car. & Payne, 103.) If a trav-
eler meets another who does not seem to understand the rule about
turning to the right, he is not justified in permitting himself to be
injured and then seeking to recover damages therefor from his fel-
low traveler who was wrongfully on the wrong side of the road.
(11 Gray, 418.) Reason and prudence would indicate that he
should use due care to get out of the way, though in so doing he
had to sacrifice his right to that side of the road. In Maine when
persons meet and pass each other upon the public highways it is
the duty of each to pass to the right of the middle of the traveled
116 MANUAL OF THE LAW.

 

part of the road when practicable. And when itis not practicable,
that is when it would be difficult or unsafe for a traveler to do so,
on account of his vehicle being heavily loaded, or for other cause,
he should stop a reasonable time at a convenient, part of the road
to enable the other te pass. (25 Me., 39.)

A person may turn to the left of the road for the purpose of
going up to a house or store, but he must be careful not to obstruct

:a traveler lawfully using that side; he should wait till such person
has passed on. (11 Me., 338.)

These rules of the road apply to all roads or ways used by the
public as such whether they have been legally laid out or not. If
the public makes use, even wrongfully, of any way which is not a
public street, these rules for their conduct in highways attach to it.
(23 Pick., 201.)

5. Crossing a Road. Where roads cross each other at right
angles the rule, as formerly laid down, was that persons traveling
on the side road should take care not to interfere with persons
lawfully using the main road; they should wait before crossing till
they can pass without interfering with travel upon the main street.
(1 Pick., 345.) But inasmuch as there may be misunderstanding
or dispute as to which is the main road, the better doctrine now
seems to be that parties on each road must use due care and pru-
dence.

6. As to Passing. When travelers are driving in the same
direction on the same street and one wishes to pass ahead of the
other, the rule in England is that the foremost traveler shall bear
to the left and the other shall pass on the off side. In this country
there is no rule upon this subject. Any traveler may use the mid-
dle or either side of the road at his pleasure without being bound
to turn aside for another traveling in the same direction, providing
there is room enough to pass on one side or the other. If there is
not sufficient room it is the duty of the foremost traveler to afford it
by yielding up an equal share of the road on being requested to do
so. If he refuses he becomes liable for the injury or delay so
caused, though such refusal would not give the other party a right
to force his passage and so cause a collision, as he has redress by
due course of law. (1 Watts, 360.)

Where a street railway runs through a street it is the duty of the
traveler to yield the way to the horse cars. The owners of the
toad have the right of way, or right to the unrestricted use of
§

OF RIGHTS IN THE ROAD. ne

 

their tracks; but it is not unlawful or negligent for others to drive
on the tracks with common carriages so long as they do not
unnecessarily obstruct them. (15 N. Y., 380.)

7. Horseback Riders. In England persons riding on horse-
back are subject to the same rules, respecting conduct in the high-
way, as are persons driving in vehicles, (8 Car. & Payne, 103.)
But in this country it is held that there is no law of the road
respecting equestrians. A man on horseback meeting a horse or
vehicle is not with us required to turn to any particular side, as to
the right or left; but he must govern himself in this respect accord-
ing to his notions of prudence at the time and under the circum-
stances. (24 Wend., 465.) There is, however, an almost univer-
sal custom which is sanctioned by common consent and imme-
morial usage—giving it the force of positive law—that a person on
horseback should yield the traveled path to one who is traveling in
a wagon or other vehicle. (24 Id., 465.) In fact, common
sense and propriety would indicate such to be a fair rule. Though
a foot passenger or an equestrian has without question a right of
way as well as the driver of a vehicle, still the enjoyment of the
right is to be regulated by reason and justice, and it certainly
would not be either to compel a teamster with a heavy load to
leave the beaten track of the road if there is room enough for
them to pass on either side.

8. Foot Passengers. All persons have the same right to
walk in the street that they have to ride or drive there. And they
have the same right to walk in the middle of the street that they
have to walk in the foot paths at the side. When one is walking
in the wagon track, however, he must observe greater care and
caution to avoid collision with vehicles; but the fact of his being
there is not of itself negligence. (5 Car. & Payne, 407.) It is
his duty to turn out for teams, especially if heavily laden; but
teamsters have no right to run over him simply because he happens’
to be in the way. (45 Mich., 62.)

Foot passengers have the undoubted right to cross the street at
any time or place, and persons driving along it must take due care
not to run into them. The foot passenger must also exercise due
care to avoid injury. If he sees a team coming at rapid rate he is
not justified or warranted in attempting to run across ahead of it,
nor should he ever attempt crossing a crowded thoroughfare with-
out first carefully looking each way. For, be it remembered, no
118 MANUAL OF THE LAW.

 

one can recover damages for an injury which due care on his part
would have prevented. (8 Car. & Payne, 373.)

9. Rate of Speed. It has been remarked that persons using
the highway must exercise due care for the prevention of collisions
or other injuries. This includes an observance of the duty to drive
at a moderate rate of speed. To drive faster than an ordinary
reasonable traveling pace upon the highway, and especially upon
the streets of a city, is not only culpable negligence, but is gen-
erally prohibited either by statute or by municipal ordinance. As
to what is an immoderate rate of speed is a question for the jury
to decide. It is such a rate that the horses cannot be seasonably
stopped or properly directed, or as the Supreme Court of the
United States puts it, “such rapid driving as under the circum-
stances amounts to rashness.” (13 Peters, 181.) In Pennsyl-
vania it was held that driving at a rate of fifteen miles an hour, or
a mile in four minutes, on a public highway, was unlawful, and that
if death resulted from a collision caused by such driving, without
any fault of the injured party, it would amount to murder in the
second degree,

10. Vehicles Must be Roadworthy. Another precaution
which the observance of due care imposes on the traveler is that of
having and keeping his vehicle, tackle, and harness in a good
roadworthy condition. Negligence on the road consists not alone
in careless or immoderate driving, but in having a coach or other
vehicle of insufficient strength, or having an improper harness.
(8 Car. & Payne, 691.) If injury results from this cause the
owner of the defective and unroadworthy vehicle will be liable
for it. ®

11. Stopping by the Wayside. Travelers may stop tempo-
rarily by the roadside for any legitimate purpose connected with
their travel, as the loading or unloading of goods, watering of
horses, etc. But this stopping must be at such a place and in such
a manner as not to interfere with the primary use and purpose of
the highway as a thoroughfare of travel. If the street were nar-
row and there were much travel in it the law would not justify a
habitual use of a portion of it for purposes of loading and unload-
ing. Thus where a street was only thirty-seven feet wide in front
of one Mr. Russell’s warehouse, and he kept three large wagons
standing there much of the time, and piled the sidewalk full of his
goods, it was held to be an unreasonable interference with the free
OF RIGHTS IN THE ROAD. Ig

 

passage of the public, and to be indictable as a nuisance. (6 East,
427+)

12. Do not Leave your Horses Untied. If a horse is left
standing untied in the highway the owner of it is liable if it runs
away and does damage. If a third person carelessly frightens it, and
it runs away and does damage, not only such third person but also
the owner of the horse which he left untied will be liable for the
injury caused. (2 E.D. Smith, 414.) If a horse runs away in
the streets of a city the owner of it is presumed to be guilty of
negligence. Of course if the horse runs away, without the fault
of the driver, such driver or owner is not answerable for the injury
done; but he must show that he was not in fault as the presump-
tion is against him. (Bright, Pa., 186.)

If two persons driving along the highway strive to get to the
same place at the same time, that one is in the wrong who first uses
force. (27 Cow., 585.)

13. Fractious Horses. To knowingly drive an unbroken or
vicious horse on the public highway has been held to be negli-
gence. No man should drive into the street, where people are
traveling, where children may be, and have a right to be, with a
horse which he knows to be fractious, unmanagable, or vicious.
If he does he is liable for any injury which may be thereby caused.
In view of this it would seem that farmers should think twice
before committing the very common imprudence of going upon
the street with a team of colts which they are just breaking. Sup-
pose the colts were to break away and dash over a little child on
its way to school and kill it. The farmer might find himself con-
victed of manslaughter.

14. Liability for Misconduct on the Road. There are in
most of the States legal spenalties provided for the violation of
statutory rules concerning travel in the highway. For instance, in
Michigan there is a penalty of a sum not exceeding one hundred
dollars, or imprisonment for not more than thirty days, inflicted for
the willful running of one’s horses in the highway. There is also
asimilar penalty for employing a drunken driver to drive one’s
carriage on the road, (C. L., Mich., C. 30.) But independent
of and in addition to any of these statutory punishments there
is a liability which rests upon every careless driver, which may
be stated as follows: “Whenever in consequence of a viola-
tion of any of these rules of the road, or the want of proper care
120 MANUAL OF THE LAW.

 

and diligence in any other respect, a collision ensues, or some other
accident happens, the party through whose fault it happens is
liable for the injury, unless the injured party, through his own neg-
ligence or misconduct, contributes to the result.” If it appears
that the damage was occasioned partly by the negligence of one
traveler and partly by that of another who is injured, no action
will lie, no damages can be recovered, because of the general and
very proper principle which underlies the law of negligence, that
if one contributes in any way to the negligence which results in
his injury he is not entitled to recover. (See Angell on High-
ways, page 429, and many cases there cited.)

15. Obstructions and Nuisances. Any act or thing which
unnecessarily impedes the free passage and lawful use of the high-
way by the public is a nuisance. Nuisances are either positive,
like actual barriers or other obstructions placed in the highway, or
else they are negative, like those resulting from want of repair.
The latter kind can only be committed by those upon whom rests
the obligation of repairing the highways; the former can be com-
mitted by anybody. A nuisance, being an offense against the pub-
lic, can only be proceeded against by indictment, unless some indi-
vidual has suffered special damage, over and above the rest of the
public, in which case he may seek redress by private action against
the one who caused it.

To put the highway to any use except that of travel, and those
incidental uses connected with travel which were mentioned in the
subhead on that subject, is, if it interferes with the free passage of
the public, a nuisance. The many things that have been held to
be nuisances cannot be enumerated here, but among them may be
mentioned buildings which protrude upon the highway (19 Pa,
412); overhanging boughs which incommode the passage; to put a
fence or gate across the highway (11 S. & R., 345); or build a
fence alongside it inside of its outer line (37 Barb. gor); to
deposit lime or gravel in it (1 B. & P., 404); to leave logs or lum-
ber in it (5 Ad. & E., 469); to leave any object in it or alongside
it which will frighten horses of ordinary gentleness (30 Conn.,
129); or to leave a loaded wagon standing in it for an unreason-
able length of time. (10 Abbott, Pr., 365). These have been
regarded by the courts as nuisances, and the lists might be extend-
ed. There is nodoubt that the leaving of farm implements by the
roadside, as is often done, or the turning of the road into a barn-

 
OF RIGHTS IN THE ROAD. 121

 

yard, as some farmers do, is in most instances a nuisance, and the
farmers who practice it are not only guilty of very bad taste, but
are running the risk of having to pay dearly for their slovenness,
if on some dark night somebody is injured by it.

The law is well settled that whoever places an obstruction or
nuisance upon or across a public highway is liable for the injuries
that result from it. (2 Ill., 229; 53 Barb., 629.)

16. Abatement of Nuisances. It is the duty of the officers
having charge of the highway to remove the obstructions and abate
the nuisances that may be upon it, and the township or city may be
liable for any resulting injury if they fail to do this (14 Gray,
249); but any individual, who has occasion to use the highway in a
lawful way, may remove any obstruction that he may find upon it,
and if necessary to do so may go upon the land of the person who
erected the obstruction, doing as little damage as possible to the
land. (10 Mass., 70; 18 Wis., 265.) But he must do this at some
peril, for if he fails to establish the fact that the thing removed is
a nuisance, he will be liable for trespass. (35 N. H., 257.)

Trespasses on Rights of Adjacent Gwners. Uses of the
highway which may not be nuisances may still be unlawful
as being trespasses upon the rights of adjacent owners. As has
been observed, persons owning land on either side of a highway
own to the middle of the road, subject to the public right of pass-
age and rights incidental thereto. Every other use to which the
highway can be put, which does not interfere with the public
rights, belongs to the adjacent owners. An injury to these rights
of adjacent owners is a trespass just as much as though it were
committed on the enclosed land of such owners. The mines,
quarries, springs of water, timber, earth, gravel, grass, etc., belong
to the adjacent owner, and he may maintain the action of trespass,
ejectment or waste, as the case may require, against any one who
unlawfully interferes with them. (15 Johns, 447.) Trespass has
thus been successfully maintained against one who dug up and
removed the soil (12 Wend., 98); also against one who cut down
the trees in the highway (1 Cow., 238); also against one whose
horse gnawed and injured a tree there; also against one who stood
in the street and used abusive language to the adjacent owner (11
Barb., 390), for while so engaged he was not using the street for
the lawful purpose of traveling, but was a trespasser.
122 MANUAL OF THE LAW.

 

17. How Roads Are Made. Highways come into existence
in one of the three following ways: They are either laid out and
constructed by degislative authority under the provisions of State
laws upon the subject; or are given to the public by individual
land owners, which is called dedication, or else they are acquired
by prescription, that is by long adverse use by the public.

18. By Legislative Authority. The provisions of the
various State statutes for the construction and maintenance of pub-
lic highways are or ought to be familiar to all freeholders. The
details of them cannot be given here. In general the work, so far
as country roads are concerned, is entrusted to certain township
officials, often called commissioners of highways, who, on applica-
tion of a certain number of freeholders, pass upon the necessity of
the proposed highway, determine the exact route, location, and
direction of it, and ascertain and designate the just compensation to
be given to those whose lands are to be thus taken for the purpose.
The main thing to be remembered in the method of making roads
by legislative authority is that the zecesszty for the proposed high-
way be in some way judicially determined, and that just compen-
sation must be made to those whose private property is thus taken
for public use.

19. Right of Eminent Domain. This right which the State
Legislatures possess of taking or of authorizing the taking of pri-
vate property for the public use which is called the right of emzz-
nent domain, may be and often is delegated to individuals or to
corporations like railroad or turnpike companies, who under and
by virtue of such power may condemn and take private property.
(2 Peters, 251.) Itisin this way that railroads, turnpike, and toll
roads are usually laid out and constructed. When private property
is thus taken, under and by virtue of the right of eminent domain,
only so much or such an interest in the property can be acquired as
the exigencies of the use it is takenfordemand. (15 Conn., 318.)

In the case of public highways only the wse of the land for the
purposes of travel is required, and that is all that generally can be
taken. When, therefore, the road is discontinued or abandoned,
the land reverts to the original owner or his heirs and assigns freed
from the incumbrance. (2 Iowa, 283.)

20. By Dedication. When an owner of lands lays out a
street through them and appropriates the land in the street to the
OF RIGHTS IN THE ROAD. 123

 

use of the public, such street when accepted by the public becomes
a highway by dedication. Dedication, then, is a gift of land to
some public use which becomes complete on being accepted by the
public.

Dedications are either by deed, by express declaration, or are
presumed from long acquiescence by the owner in the public use.
No particular formality is necessary. They may be written, oral
or evidenced by the acts of the owner. If the intention to dedi-
cate is in any way clearly expressed and the public accepts the
gift, it will conclude the donor from ever asserting any right in
opposition to or incompatible with the publicuse. (5 Taunt., 125;
19 Pick., 405.) A dedication is presumed after from ten to twenty
years use by the public with the owners’ knowledge (22 Ala,
290), and in some cases after a shorter use if the circumstances
favor the presumption. (4 Cal., 114.)

Acceptance by the public is essential to make the dedication
complete. Inasmuch as the public must assume certain responsi-
bilities in connection with streets like the duty of repairing and the
liability resulting from failure to repair, it is essential that it in
some way accept the gift of a street before these responsibilities
can be thrust upon it. Acceptance, it is said, may be indicated by
the public using the street. The English doctrine, which is recog-
nized by a few of the older American decisions, is that mere use
by the public is sufficient to bind the township, or other body
having charge of the streets, with the duty to repair and to impose
upon it the liability for want of repair. (23 Wend., 103.) But
the great weight of authority in America is to the effect that towns
are not liable for repairs, or for injuries resulting from want of
repairs, until they have in some way officially adopted the street,
either by formal acceptance or by indirectly recognizing it in some
way as by repairing it or exercising some authority over it. (13
Vt., 424; 16 Barb., 251.)

21. By Prescription. Prescription, when applied to the
acquirement of public rights of way, is but another name for pre-
sumed dedication. When streets which have never been regularly
laid out and opened have been long and uninterruptedly used by
the public, a conclusive legal presumption arises that they were at
some early period regularly established. The public can gain a
right of way by long use just as an individual can thus gain a pri-
vate way. (13 Pick., 94.)
124 MANUAL OF THE LAW.

 

22. Repair and Maintenance of Highways. In England
the duty of caring for and repairing the public roads rests by com-
mon law upon the parishes, and the duty of constructing and
caring for bridges devolves upon the counties. In this country we
have no political divisions corresponding with parishes, and so in
the several States there are statutes assigning the duty to cities,
villages, and townships of maintaining the public highways within
their respective jurisdictions.

Country roads are then in America under the general care of
the townships. Toll roads of course are under the care of the
corporations having the franchise of collecting toll, but the town-
ships are in some States given the duty and authority of seeing
that they are kept in repair. Townships are by statute made
liable to any one who is injured in person or property by reason of
their neglect to keep their highways in a state of good repair.

23. Liability for Failure to Repair. This liability which
townships and other municipal corporations are in this country
placed under in respect to their highways, is a purely statutory
one, and its precise measure depends upon the wording of the
respective statutes of the various States. In Massachusetts, Maine,
and Rhode Island the obligation is to keep the highways in repair
“so that the same may be safe and convenient for travelers with
their teams, carts, and carriages, at all seasons of the year.”

In Vermont and Connecticut the duty imposed is to keep the
highways “in good and sufficient” repair. The Michigan statute
says: ‘Highways, bridges, cross-walks, and culverts shall be
kept in good repair and in a condition reasonably safe and fit for
travel.” What is meant by these statutes is that public roads must
be kept in such a state of repair as in view of their location, the
kind and extent of travel upon them, and all circumstances con-
nected with them, seems reasonably convenient and safe. A road
should be kept fit for travel by the usual and ordinary modes
which are customary in the community. A main and much trav-
eled thoroughfare should be kept in better condition than a side
road but little frequented. A road which would be perfectly safe
and convenient in the country might be totally unsafe and incon-
venient in the city. Regard must constantly be had to the usual
and probable uses to which the road will be put, and it must be
kept in a condition suitable for such use. If an injury occurs and
suit is brought to recover damages for it, it is for the jury to deter-
OF RIGHTS IN THE ROAD. 125

 

mine under proper instructions from the court whether, in view of
all the circumstances, the road was reasonably safe and convenient.
(17 How., 161.) And in determining the question the jury are to
consider the location of the road, the geographical features of the
country, the difficulty of keeping the road in a better condition
without unreasonable expense, the season of the year, the kind
and amount of travel having occasion to pass over it, etc. (12
Cush., 488.) A road running up the rocky side of a mountain
might be reasonably safe and convenient if it were but wide
enough for a single team with places fixed for passing only at
intervals, but a road over the level prairie might not be reasonably
safe and convenient unless it were kept smooth and free from
obstructions for the full width of two or four rods. Bridges and
culverts are to be subjected to the same rule. They must be kept
reasonably safe and convenient, and strong enough to bear the
heaviest loads that it is usual and customary to bring upon them, or
that might reasonably be expected would be brought upon them.
The Supreme Court of Massachusetts said that a town would be
liable for an injury to an elephant, driven with due care along the
road, occasioned by a defect in the highway, if in the opinion of
the jury an elephant was an animal which it was proper and
reasonable to take over a highway kept for the reasonable use of
the public; and under this instruction the jury disagreed. (14
Gray, 242.) Ina grazing country like Vermont a bridge should
be kept sufficiently strong to sustain a drove of cattle, if passed
ever with common care and prudence. (6 Verm., 496.)

It is the duty, likewise, of towns to remove obstructions from
their highways, and here again the same rule of reasonableness
applies. What would be a serious obstruction in a much traveled
and crowded street might possibly amount to nothing in a quiet
country by-road. Towns have been held liable for injuries result-
ing from a log lying outside of a traveled path (18 Me., 286), and
objects at the side of the road which frighten horses have been
held to be nuisances, and as such indictable (30 Conn., 229),
though where an injury was caused by large loose stones lying
outside the gutter seven feet from the traveled wagon way it was
held that the township was not liable. (16 Pick., 189.)

The duty of caring for the highways includes also that of pro-
tecting travelers from dangerous places, pit-holes, precipices, and
the like. Down in Maine a horse was once drowned in a deep

10
126 MANUAL OF THE LAW.

 

mud hole at the side of the road which had the appearance of
being a convenient watering place. And the court said that
“although towns are not obliged to furnish watering places for the
public convenience, but when they are provided by nature in the
highway they ought not to be allowed to become pit-falls, first to
allure and then to destroy horses or other animals turned aside to
partake of the refreshment to which they are thus invited.” (12
Me., 198.) If a road pass along the edge of a steep bank or
along the verge of a precipice it is the duty of the town to prop-
erly guard the edge of the road by walls or railings (13 Pick.,
102; 6 Wis., 377), and if they fail in this duty they are liable for
the consequences. In cities sidewalks are regarded as part of the
street, and as such are to be kept in repair through their entire
width.

24. Discontinuance of Highways. Streets may be discontin-
ued by formal action on the part of the towns, cities, and villages
having the same in charge, when they are given authority to
do so, which they generally are by statute; or they may be vacated
by the courts in certain cases (a matter not necessary to advert to
here), or they may be lost by abandonment. Whenever the pub-
lic easement or right of passage is in any way relinquished, the
land in such highway reverts to the original ownew or their heirs
or assigns freed from the incumbrance,
CHAPTER XIV.

OF RIGHTS ON THE FARM.

1. Dominion over one’s Land. 8. Trespasses by Servants.
2. Right of Exclusive Possession. ’g. Trespasses by Domestic Animals
3. Implied License to Enter Upon 10. Trespasses by Dogs,
Lands. 11. Trespasses by Persons Hunting
4. License Given by Law, and Fishing.
5. Express License. 12. Who Owns Wild Game,
6. Trespass Upon Land, 13. Possession of Land.
7. How Trespasses May be Committed.

1. Dominion Over Qne’s Land. The ownership of land
carries with it very large rights. As we shall see, the control
which a man may exercise over his property is well-nigh absolute,
for with very few exceptions, which are herebelow pointed out, a
man may do what he pleases with his own land. The govern-
ment, the community, and in a few instances certain individuals
have certain limited rights in all lands; but aside from this every
man is the autocrat of his own premises.

2. Right of Exclusive Possession. Among the most import-
ant of the rights incident to the ownership of real property is that
of exclusive and undisturbed possession of the land. No man can
so much as put his foot upon another’s land unless by permission,
express or implied, or under authority of law, without committing
a trespass for which an action willlie. The mere crossing of one’s
boundary or walking over one’s fields, without permission, is a
trespass for which damages may be recovered. Of course the
damages would be merely nominal, (that is a very small sum, as
six cents), unless the owner could prove some special damage or
could show malice on the part of the trespasser, and no reasonable
man would sue another for innocently stepping upon his land. Still
128 MANUAL OF THE LAW.

 

the law gives him the right to do so. It holds his premises sacred
to him. His boundary, like that between nations, is not to be crossed
without permission.

This permission, called in law a license, is sometimes given by
law, more often expressly by the owner, and it is in some cases
implied from custom and other circumstances. In order to know,
then, whether a given entrance upon lands is a trespass, we must
ascertain whether it was licensed in any of these ways.

3. Implied License to Enter upon Lands. All business
men, merchants, dealers, professional men, and all persons having
any business to transact with the public, impliedly invite any and
every one to enter upon their lands or premises for the purpose of
transacting business in their respective lines. (5 Watts & S., 141.)
But the invitation is extended only to those who may wish to enter
for the purposes for which the various places are thrown open. It
would be an abuse of it to enter for any idle, ulterior or mis-
chievous purpose, and one who did so would be a trespasser;
though it is possible that one may visit, out of mere curiosity, any
place of business which is thrown open to the public, without
incurring liability. Certainly one may enter a shop for the pur-
pose of looking at the goods or inquiring their price though he
does not intend to buy.

Likewise every person extends to others a license, by implica-
tion, to enter his grounds and come to his house by the proper way
and at proper times, for social courtesy, business, information, etc.,
and the custom of the community determines the limit of this
implied license. (65 Penn. St., 273.)

If a person leaves anything exposed to view which would be
likely to tempt or attract children, it has been held that he extends
an implied license for them to enter and see it or use it (21 Minn.,
2073 44 lowa, 27); and the leaving of meat exposed so that dogs
can come and get it has been held to amount to an implied invita-
tion to the dogs to help themselves, and no action would lie as
against their owners for the trespass. If one baits traps upon his
premises for dogs he is liable to their owners for their value if
they are killed. (4 East, 277.) If one sells goods which are in
his possession, as cattle in the pasture or crops in the field, and
nothing is said about their being delivered, he impliedly licenses
the purchaser to enter his premises to get them. (39 Ind., 267.)
Other instances of implied license might be given, but these are
sufficient to illustrate the nrinciole,
OF RIGHTS ON THE FARM. 129

 

4. License Given by Law. The law gives persons a license
to enter upon private lands in certain instances of which the fol-
lowing are illustrations:

If an officer have a summons, warrant, or other process from a
court, and it becomes necessary to go upon private grounds or into
buildings to serve it, the law licenses him to doso. He may go
wherever the man is, to serve the paper upon him, except into his
dwelling if he finds that closed and locked. “ Every man’s house
is his castle.” This familiar maxim means that a man’s house is
held in law sacred from intrusion, and that the owner may close,
lock, and defend it, not only against private persons but against
the officers of the law. If the latter attempt to force their way
unlawfully they become trespassers, and may be repelled to any
extent necessary. This privilege extends only to the outer walls
of the castle, that is the outer doors or windows of the house. If
the officer finds. these open he may break down inner doors in
order to serve writs without committing trespass. He may break
open the outer doors of barns, store houses, etc., as the castle
means only the dwelling or habitation. Even the outer doors of
the dwelling may be broken open for five purposes, as follows:
To arrest for treason, felony, breach of the peace, serve a search
warrant, and to dispossess the occupant when the possession has
been by a proper court awarded to another. (Cooley on Torts,
314-)

Another case where license is given by law is that of entering
private lands to abate a nuisance. If a person maintains or per-
mits a nuisance to exist upon his premises, and such nuisance
specially injures some particular individual, such individual may, on
the owner’s refusal to remove it after notice, go upon the land and
abate it himself. If he is resisted he is not justified in persisting
and committing a breach of the peace in order to accomplish the
abatement. In such case he must resort to the ordinary legal
remedies. (32 Texas, 208.) A person who thus takes upon him-
self the abatement of a private nuisance takes also upon himself
the responsibility of establishing that the thing abated is a nuisance.
If he fails in this, he becomes liable for the trespass; or if he suc-
ceeds in this, but does unnecessary injury in abating the nuisance,
he becomes liable forthe excess. (27 Ind., 394.) If the nuisance
is of such a character that the security of lives and property
requires its abatement at once, no notice is then required. The
130 MANUAL OF THE LAW.

 

individual may abate it without first requesting the owner to do so.
(Cooley on Torts, 48.)

A common instance of license given by law 1s where a fire
breaks out in a city. In such case the public authorities or private
individuals may enter upon adjacent premises for the purpose of
destroying or arresting the progress of the flames. This license
is based on overruling necessity, and it extends to whatever may be
necessary to do in order to stop the conflagration. Property may
even be destroyed—whole blocks of buildings blown up if neces-
sary—without liability. The owner has no claim on the officials.
All that he can do is to seek redress from the State, and accept
what the State sees fit to give him, if anything. (31 N. Y., 164.)

Where a highway becomes obstructed or impassable, the law
gives travelers license to pass over adjacent land in order to get
around the obstruction, but they must do no unnecessary injury to
the land. (18 Tex., 858.)

So where it is proposed to take property under the right of emi-
nent domain there are statutes giving license to certain persons to
enter and make preliminary surveys, etc., without incurring liabil-
ity. (25 Mo., 277.)

If a license given by law is abused, that is if advantage is taken
of it to gain an entry, and then unlawful or unlicensed conduct is
indulged in, it has the effect of at once revoking it, and the party
becomes a trespasser from the beginning. (8 Cow., 290.)

5. Express License. Where one person gives another per-
mission or authority to enter upon his lands for any purpose, with-
out at the same time giving him any interest in the lands them-
selves, such permission is an express license; and it may be given
verbally or in writing. A license is a personal matter between the
parties. When given to one it cannot be by him assigned to
another. (24 Pick., 187.) It can be revoked by the one who
gave it at any time. That is to say, further acts under it may be
at any moment prohibited, and if they are then done they are tres-
passes; but all acts done under the license before its revocation are
justified and protected by it, even though it is afterwards revoked.
(14 IIL, 446; 20 Wis., 531; 26 Mich. 186.) It is revoked by a
sale of the land. (51 N. Y., 246.) If not acted upon within a
reasonable time such fact has the effect of revoking it. (54 N.
H., tog.) One acting under a license must use due care not to do
anything which will injure the land. (20 Mich, 156.) The one
OF RIGHTS ON THE FARM. 131

 

giving the license assumes no particular duty toward the licensee
except to refrain from acts wilfully injurious to him. There may
be some exceptions to this, as where a railroad company give a
license to the public or to private individuals to cross their premises.
They are under obligation to use a high degree of care to prevent
injury. (65 Penn. St., 269.)

If the license is coupled with an interest it cannot then be
revoked at the pleasure of the licensor. That is to say, if a legal
interest has been conveyed to a man in connection with a license,
to the enjoyment of which the license is necessary, the license will
live as long as the necessity. (11 Conn., 525.) Thus if I give a
man license to erect and live in a house on my land I cannot
revoke the license so as to deprive him of the house. I may ter-
minate his right to live there, but he wil! still have the right to go
upon the land and take away his building. (10 Barb., 496.)

A license, coupled with an interest in land, can only be created
by deed or such other writing as will satisfy the Statute of Frauds.
(See Ante., p. 35.) There are a few exceptions to this, of which
a license to flow lands is one. (24 N. H., 474.)

6. Trespass Upon Land. We have seen that every entrance
upon the lands of another which is not licensed in some of the ways
above enumerated is a trespass. It makes no difference whether
the lands trespassed upon were enclosed with fences or not. If
there are no fences the law encircles the land with an imaginary
inclosure to pass through which is to break through the close and
commit a trespass. For the mere entering upon the land only
nominal damages can be recovered, and there are some trespasses
which are said to be excusable altogether. Of these are trespasses
in self-defense in order to escape from some danger or appre-
hended peril, or in defense of the possession of one’s goods and
chattels, or to recover his cattle or other domestic animals which
have escaped from him; but these belong really with the class of
implied licenses above referred to. If, however, an entry upon
land is made after notice or warning not to trespass, it then may
become a very serious offense, and if it amounts to a wilful and
insulting invasion of proprietary rights, heavy exemplary damages
may be recovered. (33 Ill., 473-)

%. How Trespasses May be Committed. Trespasses may be
committed not only by a person going himself unlawfully upon
another’s land, but by sending his servants there, allowing his
132 MANUAL OF THE LAW.

 

domestic or other animals to escape there, or by casting inanimate
objects upon the land. This latter kind of trespasses are not of
very frequent occurrence. If one throws sticks upon another’s
land, or dumps his rubbish on the side of the highway next to
another’s land, or throws stones at another’s buildings, it is a tres-
pass. So, too, if one cuts trees so that they fall upon another’s
land, even though he did not intend or suppose that they would
fall that way, or reach so far, it is a trespass. (2 Ired., 42.) Or
if one is blasting rocks and the fragments fly and fall upon
another’s land it is a trespass, and for any ofthese trespasses an
action will lie. (58 N. Y., 416.)

8. Trespasses by Servants. If a master directs his servant
to commit a trespass, the master is liable. Or if the servant in the
prosecution of his master’s business, and within the scope and
limit of that business, commits a trespass, though not specifically
directed by the master to do so, but is given general authority to
do what he thinks proper, the master will be liable (19 Wend.,
345); and the master may be liable if the trespass is committed
contrary to his express orders if it is not done in wilfull disregard
sf those orders. (14 How., 468; 10 IIl., 509.)

But if the servant goes outside of his master’s business and
commits a trespass on his own account, the master is not liable.

9. Trespasses by Domestic Animals. I£ one’s cattle, horses,
sheep or swine go upon the lands of another and there do damage,
it is a trespass for which the owner is liable. And it does not
make any difference whether the lands are enclosed by fences or
not. This is the common law rule to which some exceptions are
made by statute in America, as is pointed out in Chapter XVI
on Farm Fences. It is, in the absence of a statute or regu-
lation to the contrary (and such statutes are of doubtful validity),
just as much a trespass for one’s cattle to cross an invisible bound-
ary line as to leap over a stone wall. (19 Johns, 385.) And the
liability on the part of the owner does not depend on his being
careless or negligent in letting his cattle escape, for it is his duty at
his peril to keep them upon his own premises.

There is possibly one exception to the rule last above mentioned,
and that is in the case of cattle escaping while being driven along
the highway. If one is driving his cattle along the highway and
they escape from him, without any fault or negligence on his part,
he is not liable for their trespasses on private grounds, if he removes
OF RIGHTS ON THE FARM. 133

 

them within a reasonable time; and what would be a reasonable
time would depend upon all the circumstances of the case. (4 H.
& N., 631.)

Trespasses may be committed by one’s animals in other ways
than by tramping over another’s fields. It has been held that if
one’s horse reaches over a division fence and bites and injures
another’s horse, it is a trespass which renders the owner liable.
(10 C. P., 10.)

10. Trespasses by Dogs. At common law the trespasses com-
mitted by dogs, unlike those committed by other domestic animals,
are not chargeable to their owners. The dog does not seem to
have been regarded as such a valuable kind of property as that its
owner became respensible for its acts. The mere running of adog
across one’s fields, too, is generally so harmless a thing that the law
does not regard it as an actionable trespass. But if a dog becomes
mischievous and inclined to injure property, then its owner is
bound to restrain it as soon as he has notice of such mischievous
disposition, and if he fails to do so he then becomes liable for its
trespasses.

If the owner of the dog were himself trespassing and the dog
were going along with him and doing injury, though unbidden,
the owner would then be liable,—the dog’s trespasses being in such
case regarded as a part of his own.

There are statutes in many States fixing the lability of owners
of vicious and mischievous dogs, particularly of sheep-stealing
dogs and dogs which bite and injure persons or animals. Gener-
ally these statutes do away with the necessity of proving a sczenter,
that is, that the owners of the dog knew of their vicious disposi-
tions. They often provide for the recovery of double damages for
such injuries, and make it the duty of the owners of such dogs to
put them out of the way.

11. Trespasses by Persons Hunting and Fishing. It is so
very common in this country for land owners to permit anybody
and everybody to enter their lands for the purpose of hunting and
fishing that many persons act as though they had a perfect right tr
do so. And indeed some American courts have gone so far as t~
hold that, because of the universality of this custom, persons may,
in the absence of any notification to the contrary, suppose that
they have implied license to do so, and that they may enter, par-
ticularly to take fish in small lakes and streams, with immunity.
134 MANUAL OF THE LAW.

 

(Marsh v_ Colby, 39 Mich., 626.) This, however, is not the
common law, nor is it the general rule in this country. It is a
trespass to enter for the purpose of hunting and fishing. But it
would be well for those who wish to prevent or to prosecute such
trespassers to give notice to them not to enter. This notice might
be given by posting placards, though there might be difficulty in
proving that such notices were brought to the attention of the tres-
passers.

If one enter another’s land with dogs for the purpose of hunt-
ing, and the dogs do damage by way of.chasing sheep, or the
like, their owner is liable for the injury, though he had no knowl.
edge of the dog’s propensity to do such things. (1 N. Y., 515.)

The right to take fish in the fresh water streams of this country
belongs, without doubt, to the owners of the soil under them to the
exclusion of every one else. (17 Johns, 195; 43 Ill, 447.) This
right, however, is one which, because of the relation of riparian
owners, may be regulated by statute. Each riparian owner has
the same right as every other; but if one near the mouth of the
stream were to put a net across which would stop the fish from
running up, he would spoil the fishing for all those above. Laws
have therefore been enacted in most of the States regulating the
enjoyment of this right, forbidding the use of seines in certain
waters, and the taking of fish at all seasons of the year, and pro-
viding that an open way shall be kept for the free passage of the
fish up and down the streams. Such legislation is valid and bind-
ing upon the riparian owners. (119 Mass., 300; 57 Ind., 119.)
The right to fish in small lakes and ponds, like the right of fishery
in fresh water rivers belongs to the riparian owners (32 N. J.,
369); but in the larger lakes and tide-water streams the right
belongs to the public, and all citizens have the right to fish in
them. (60 N. Y., 56.) The exclusive right of fishery in small
streams and lakes belonging to the bordering owners, it follows
that for others to fish in them is a trespass. But as the mere entry
upon water can do no harm, there may be some reason for regard-
ing it as different from an entry upon lands. If the owner does
not himself make any particular use of the right of fishery for
purposes of profit, and has been in the habit of permitting persons
to fish in his waters at their pleasure, it would seem that this cus-
tom would create an implied license for them to do so, and as
above indicated some courts have so held. (39 Mich., 626.) Cer-
OF RIGHTS ON THE FARM. 135

 

tain it is, that if one does not wish to have others fishing in his
streams he should give them notice not to enter for such purpose,
before he proceeds against them for trespass.

12. Who Owns Wild Game. While, as we have seen, it is
unquestionably a trespass for a person to enter another’s lands, with-
out permission, for the purpose of hunting or fishing, still when he
has entered and taken fish or game upon another’s land such fish or
game belongs to him. No action can be maintained for recover-
ing it, or recovering its value, or recovering damages for its con-
version. The law does not recognize any private property in fish,
game, or wild animals, until they have been subjected to control.
If one tames them, or secures them and keeps them confined or
under his control, they then belong to him; but the mere fact that
they are roaming over his land or swimming through his waters,
does not constitute them his private property. (10 John, 102.)
If, then, some fancy crack shot from the city, with his well trained
setters, comes into the farmer’s cornfield or wheat stubble and
shoots a score of partridgés or prairie hens that have grown fat
upon the farmer’s wheat, nothing can be recovered for the loss of
the birds. (1 Sprague, 315.) Trespass is the only action that
will lie, and for this probably only nominal damages can be recov-
ered, unless notice were given not to enter for such purpose.

18. Possession of Land. Trespass upon real property is
always an injury to the rights of the one in possession of it, and
generally only one who is in possession can sue a trespasser. But
if the land is leased to a tenant, and a trespass is committed upon
it and permanent injury done, like destroying a building, cutting
timber, or the like, not only the tenant who is in possession, but
the owner, may maintain an action. So that two actions may be
based upon one trespass.

Possession of land is a matter of great importance, as many
valuable rights often depend upon the question of possession.
Possession may be actual or constructive, and it may be rightful or
wrongful. It is actual when the owner or one entitled to pos-
session actually occupies or lives upon the land. It is constructive
where the land is not actually occupied, but is, in contemplation of
law, in the possession of the owner or person entitled to possession.
If the owner does not live upon the land, nor no one else, it is
constructively in the owner’s possession, (11 Vt., 129.)

Actual possession is not lost by a temporary absence from the
136 MANUAL OF THE LAW.

 

premises. If the occupant goes away upon business or pleasure,
his possession will be kept for him by his family, his servants, his
domestic animals, or even by his goods and chattels.

A person who is in peaceful possession of premises is presumed
to be in rightful possession until the contrary is proved; and peace-
ful possession is of itself sufficient to enable one to successfully
maintain the action of trespass or ejectment against one who has
no title. (38 Mich., 729.)

If the owner, or person entitled to the occupancy, loses or is
deprived of possession by any means, he may regain it in several
ways. At common law he could regain it by force,—by going
himself and putting the intruder off. But as this led to breaches
of the public peace, it was early prohibited in England, and it has
always been against the laws of this country. It cannot be per-
mitted, because one who attempts a forcible entry makes himself
judge in his own cause and enforces his own judgment. Conse-
quently there are statutory methods for having any one who has
made a forcible entry upon a peaceful possession summarily put
off. It makes no difference whether he owns the premises or hag
the right to possession or not. If he takes possession forcibly
from one who has it peaceably, though possibly wrongfully, the
law will compel him to give back the premises, and will not inquire
into his title or rights in the matter until he has done so, (12
Wend., 488; 32 Vt., 82.)

But if one entitled to possession can make a peaceable entry
upon his premises while they are occupied by another, that 1s te
say, if he can get in and dispossess the other party by stealth, by
taking him when off his guard, while temporarily absent, or the
like, then such act is permissible, and it restores him to his full and
complete possession. (50 Me., 325.) And he may resort to any
means short of the employment of force in order to attain this end.
(59 Me., 568.)

A person lawfully in possession may use any necessary force to
repel or expel an intruder. An assault and battery may be law-
fully committed in defense of one’s property, or the possession of
one’s property, either personal or real, if undue or excessive force .
be not used. (80 Ill., 92.) A trespasser may be repelled, or if he
has gained an entrance, he may be removed, by force. I£ he
gained entrance quietly and without force he must be requested to
leave before he can be legally put off by force; but if he entered
OF RIGHTS ON THE FARM. 137

 

violently and with force, no previous request to depart is necessary.
(4 Denio, 448.) Only so much force can be used as is necessary
to put the trespasser off, and no more. (43 Vt. 417.) Although
in the language of the law a man “ must lay hands gently” on a
trespasser, still if he is assaulted in his own house he is not obliged
to retreat, but may defend his possession to the last extremity. (8
Mich.. 150.) And he may even kill a burglar who is breaking in.
(22 Ga., 478.) But where force is used, it must be used promptly
and without delay. If there is any acquiescence on the part of the
party who is dispossessed, he loses his right to use force. (8
Ohio, 40.) A person is permitted to defend a right by force, but
he cannot recover in that way.
CHAPTER XV.

CONCERNING WASTE,

a. General Rule as to Waste, 6. Permissive Waste.

2. Cutting Trees, Etc. 7. Failure to Repair Buildings,
3. Manure Made on the Farm, 8. Injuries from Fires.

4. Composted Manures. 9. Remedies for Waste.

5. Purpose of the Occupancy.

Among the injuries to land is the not uncommon one known
in the law as waste. Waste, like trespass, is a harm done to real
property, but unlike trespass which is committed by an intruder
against the rights of the occupant, waste is committed by the per-
son in possession of the land against the rights of the owner who
is not in possession, or of some one else who has some future inter-
est in the land.

Waste is either voluntary, as where it consists of some positive
act by the occupant which causes injury to the premises, or it is
permissive, as where it consists of some omission or neglect of
duty which results in like injury.

1. General Rule as to Waste. It is impossible to lay down
any single definite rule as to what in all cases shall constitute
waste. What might be waste in one instance or, one period and
place, might in others be good husbandry. Perhaps whatever
causes lasting and permanent injury to the premises is an act of
waste, or possibly any unusual or unreasonable use of the premises
by the tenant or occupant might be waste.

2. Cutting Trees, Ete. The foregoing is well illustrated by
the law regarding the felling of timber. It is almost always an
act of waste for a tenant to destroy timber or cut down trees,
except as the same may be needed for fuel or repairs upon the
premises. A tenant, whether for life or for years, is entitled to
CONCERNING WASTE. 139

 

take only so much wood as is needed for fuel and the repair of
fences, agricultural implements, and buildings, and he is limited to
what is reasonable for these purposes. (33 N. H.,18.) This
rule is strictly enforced in those States or communities where tim-
ber is scarce. Ifthe tenant takes more than is necessary, or for
any other purpose, it is an act of waste; and it was even held that
where a tenant took wood which was unfit for these uses on the
premises and exchanged it for that which was, it amounted to
waste. (17 Pick, 248.) But in many of the newer States, and
especially where timber is very abundant, different views have
been expressed. In Ohio, a widow holding lands under a dower
right—which is a life estate—was held to have a right not only to
her estovers, that is wood for fuel and repairs, but also to have a
right to cut wood to sell for the purpose of paying taxes and tak-
ing care of the premises (2 Ohio, N. S., 180), and where the
dower consisted mainly of wild lands, it was held that she might
cut and clear off all the timber from a portion of them for the pur-
pose of getting land for cultivation. (8 Ohio, 418.)

3. Manure Made on the Farm. It is waste for the tenant to
sell or remove manure made on the premises if they are leased for
agricultural purposes, for it is implied, if not expressed, in leasing
lands for such purpose, that all manure made on them in the ordi-
nary course of farm procedure shall be used on them for the pur-
pose of keeping up the fertility of the land. (21 Pick., 3675 17
Pa. St., 262.) A tenant on leaving the farm at the expiration of
his lease cannot take with him any of the manure made by his cat-
tle during his tenancy, though fed on his fodder. (6 Me., 222.)
Even if he bought the fodder elsewhere he could not take away
the manure. Indeed the manure made on the farm in the ordi-
nary manner is regarded as a part of the land itself, and must not
only be left by the tenant, but will pass with the land on a sale of
it, unless specially reserved in the deed. (44 N. H., 120.)

4. Composted Manures. It is probable that not only manures
made in the ordinary way by animals, but also that made by com-
posting, if mixed with that made by the animals, must be used by
the tenant on the farm or left there by him when he departs. It
was held that where eel grass was gathered from a river and mixed
and composted with the other manure that it must be left by the
tenant. (48 N.H., 90.) It would be waste for the tenant to dis-
pose of it ns than by using it on the farm. If it were not
140 MANUAL OF THE LAW.

 

so mixed, or if it were made by some means entirely out of the
ordinary course of husbandry, it would then probably belong to
the tenant if it could be distinguished and separated from the other,
(24 N. H., 355-)

5. Purpose of the Occupancy. The purpose or object for
which the possession of lands was given has much to do with
determining the question of waste. Of course it can never be
waste for the tenant to do on the premises that for which they
were specially leased, or any thing that he is specially authorized
to do in his lease. But in the absence of any special agreement of
this sort, the tenant can only put the premises to fair and reasonable
use, and this depends often upon the previous use that the premises
have been put to. It has been held to be waste for a tenant of
farming lands to go digging them over in search of minerals or
ores. So it is waste for the tenant to sell clay or gravel off the
premises; though if they had been used in these ways before it
might make a difference. (6 Mumf., 134.) Likewise it is waste
for the tenant to turn a dwelling house into a shop or stable. He
must use the buildings also for their legitimate purpose. He can, of
course, make slight changes or necessary alterations, and can even
tear down old buildings which have become worthless or danger-
ous. The principle in all these cases seems to be that the tenant
must so use the premises as not to injure them or unfit them for
their ordinary and legitimate use, and must take nothing from
them except his reasonable estovers. (16 Conn., 322.)

Still it must be remembered that waste depends largely upon
circumstances. Where timber was blown down by a tempest it
was held not to be waste to cut up and sell it. (6 B. Monroe,
281.) Where land let for farming purposes was largely covered
with timber it was held not to be waste to cut some of the timber
and clear up more land, leaving sufficient for the purposes of the
farm. (6 Barb.,9.) But this can now rarely be done. Where a
farm in New York State was leased as a dairy farm the clearing
of woodland upon it was held to be an act of waste. (10 N. Y,,
114.)

6. Permissive Waste, This consists not in the occupant’s
doing any positive wasteful act upon the premises, but his allowing
some one else to do so, or in his omitting to perform some duty
toward the land which results in its permanent damage, or in suf-
fering injuries to come to it which ordinary care would prevent.
It often arises from failure to repair buildings, etc.
CONCERNING WASTE. 141

 

7. Failure to Repair Buildings. In respect to repairs upon
premises the general rule is that the tenant is under obligation to
make only such as are necessary to preserve the premises. He
must exercise reasonable care and diligence for the preservation of
the premises, and if he fails in this and injury results it is permis-
sive waste. His duty is to use the premises with care and return
them in as good condition as he got them, ordinary wear and tear
excepted. It is waste for him to permit any stranger or trespasser
to injure the premises. (1 Taunt., 183.)

8. Injuries from Fires. If fire breaks out upon the premises
by reason of the carelessness or negligence of the tenant or occu-
pant, it is a waste for which he is liable; but for accidental fires
for which he is not to blame, he is not liable unless he has agreed
tobe. (14 Johns, 210.)

9. Remedies for Waste. Where waste has been actually
committed, the usual remedy is an action on the case for the dam-
ages that have resulted from it. In some of the States, however,
there are special statutory remedies for this wrong, the object in
all being the same. But where waste has been only just begun or
threatened, an injunction may generally be obtained to prevent it.
These remedies may be had not only by the owner of the premi-
ses which are injured or threatened to be injured, but by any one
who has a lien upon them or other interests in them which may
be jeopardized. Thus a mortgagee who has loaned his money on
the land can generally restrain by injunction the mortgagor or
occupant from committing acts of waste, though there is some
variation in the laws of the different States upon this point owing
to the different doctrines which obtain in respect to the nature of a

- mortgage. (See Ante., p. 55.) A purchaser at an execution sale
has likewise these remedies for actual or threatened acts of waste
by the debtor while still in possession. (2 Doug. Mich., 184.)
CHAPTER XVI.

FENCES.
1. Common Law as to Fences. 6. When Division Fence not
2. Statutes Respecting Fences. Necessary.
3. Division Fences. 7. Exterior or Road Fences,
4. Fence Viewers’ Duties. 8. Railroad Fences.
5. Fence Laws apply only to .g. What is a Legal Fence.

Improved Lands,

Perhaps there is no single legal subject that gives rise to more
petty annoyances and disputes in a rural community than the law
regarding fences. Fences are expensive. It is said that the fences
of an average agricultural community cost more than the houses.
People do not wish to build more than they are obliged to. These
facts make the subject one of considerable importance. An under-
standing of the legal aspects of the matter is desirable as a means
of saving trouble and preventing litigation.

1. Common Law of the Subject. At the English common
law, as we have seen, a farmer is not obliged to fence his lands at all.
He is not obliged to fence against his adjoining neighbor nor against
the public in the highway. And he may maintain the action of
trespass against the owners of any cattle or other domestic animals
which enter and injure his premises although they are entirely
unfenced; for it is just as much a trespass for them to cross his
invisible boundary line as to leap over the most substantial stone
wall. (19 Johns., 385.) He must, of course, see to it that he
restrains his own cattle, for he is in turn liable for their trespasses.
He is not obliged to keep his neighbor’s cattle out, but he must
keep his own. cattle in, In brief, at common law every one must
keep his cattle on his premises at his peril,
FENCES. 143

 

This statement of the common law is necessary, because the
common law is in force in many American States so far as it is
not changed by statute. In some of the States, however, the com-
mon law is held never to have prevailed, not being adapted to the
circumstances of the people.

2. Statute Law of the Subject. The legislatures of practi-
cally all the States have passed laws upon this subject of fences,
which bear principally upon two points, They provide usually
that partition or division fences between adjoining farms shall be
maintained in equal shares by the adjacent owners; and they take
from the owner of lands his right to sue the owner of trespassing
cattle, unless the lands are enclosed with fences of legal hight and
strength.

The most succinct and accurate general statement of the fence
law in America that the writer can make is that no one is obliged
to fence his lands, unless his adjoining neighbor has gained the
right either by agreement, prescription, or under the statutes above
referred to, to have him maintain the whole or a portion of the
partition fence between them. Another way of stating the same
law is that the owners of domestic animals which enter and do
damage to lands because they are unfenced, are liable for the tres-
passes, unless they can protect themselves by some agreement, pre-
scription, or statutory obligation on the part of the complaining
party to maintain a fence,

The statute law of this subject is voluminous, and there is lack
of harmony in the provisions of the several States. We can not
point out the differences nor even dwell long upon the main fea-
tures of these statutes. Were we to go into details, this subject
alone would fill the book. But every owner of land should inform
himself in this regard concerning the statutes of his particular State.
The statutes can usually be found with any justice of the peace, or
at the township clerk’s office. In most states there is a provision
for keeping a copy of the State statutes deposited with some off-
cial, usually the township clerk, for the use of the township; and
any person having need of them has a right of access to them
there. This fact is alluded to because every one having occasion
to look up any point of law should ascertain the statutory provis-
ions concerning it from some official source. Do not depend upon
this book or any book for them, because they are liable to change,
144 MANUAL OF THE LAW.

 

and do change from year to year, but go to your town clerk or
justice of the peace and examine the statutes themselves.

3. Division Fences. Where adjoining owners wish to
improve their lands, especially if they wish to usethem for pastur-
age, it is necessary that there be a division fence between them.
But as it would be foolish to require each to maintain such a fence,
thus making two fences running parallel along the dividing line,
‘there is, as above stated, statutory provision in the several States,
requiring adjoining owners to maintain one division fence in equa]
shares. That is, each must build half the fence, and if they can
not agree as to which half each shall build, or if either refuses to
build his share, these statutes provide a inethod by which the
respective portions to be maintained by each may be determined,
and by which either may compel the other to build his share.

Of course adjoining owners may agree between themselves as
to who shall build the division fence, and as to how such fence
shall be built. Such an agreement is valid, notwithstanding the
law; and while it remains in force it supersedes the law. In many
States there is a provision that if such an agreement is put in writ-
ing and filed with the township clerk it shall become binding upon
the parties always, and upon all subsequent holders of the land.
Such a provision is a valid one, and the agreement in such case
becomes in the nature of a covenant running with the land. (41
Wis., 671.)

A mere parol or verbal agreement of this sort is not, however,
binding upon subsequent owners, and it wil] not bind the parties
to it any longer than they wish to proceed under it. If either
wishes to throw it up and proceed under the statute he may do so.
(31 N. H., 241.)

One adjoining owner may, under certain circumstances, gain the
right by prescription to have the other maintain the fence between
them, but this is not of very frequent occurrence.

4. Fence Viewer’s Duties. When one of two adjoining
owners refuses to build his half of the partition fence, or when
they cannot agree as to which portion each shall maintain, then
the fence viewers may be called upon to decide the matter. The
fence viewers are officers elected or appointed in each township
whose duty is, when called upon, to assign to each adjoining owner
his respective portion of the division fence, and to decide whether
FENCES. 145

 

or not any given fence, which may be in controversy, is a legal
fence, whether or not it complies with the requirements of the law.
The office of fence viewer is often vested ex-officio in some other
officer. In many States the overseers of highways, the path-
masters as we call them, are by virtue of that office the fence
viewers for their respective townships.*

Any land owner or occupier, whose adjoining neighbor refuses
to build half the division fence, or with whom he cannot agree as
to which portion they shall respectively maintain, may call in the
fence viewers. Upon being so requested, the fence viewers, after
viewing the premises, determine and assign the respective portions
of the fence to be maintained by each. The assignment when so
made and recorded with the proper officer, becomes binding upon
the present and all subsequent owners of the land. (2 Wis., 14.)
When the fence viewers have made the assignment, if either
adjoining owner refuses to build the portion of the fence assigned
to him, there is usually a means provided for compelling him to do
so. Generally the other owner can go on and build the whole fence
himself and can then recover from the owner who declines to
build the cost of building half of it. And the same thing may be
done in the case of a partition fence which is out of repair. Adjoin-
ing owners have the same rights and duties with respect to
repairing and keeping up a partition fence as in the case of
building one.

After the respective portions of the fence to be maintained by
each adjoining owner have been determined, either by agreement or
by action of the fence viewers, then neither owner can recover any
damages for the trespasses committed by the other’s cattle unless his
portion of the division fence is in good repair and of legal hight and
strength. If the injured party has failed to build his share of the
fence, or if he has failed to keep it in repair, it is presumed that the
cattle entered because of such failure, and his right to damages is
taken away because of his neglect of duty. If he can show that
the cattle did not enter over his part of the fence, or that they
entered notwithstanding the insufficiency of his fence, then he could
probably recover damages. There isan early decision in Massachu-
setts to that effect. (4 Mass., 471; 6 Mass., 90.) In some States

 

* Such is the law in Michigan, The Michigan reader should carefully examine
Chapter XXI of Howell’s Statutes, which embraces the statute law of this subject,
and refers, by foot-note, to the leading cases, —H. A. H.
140 MANUAL OF THE LAW.

 

the duty to repair division fences is laid indiscriminately on both
adjoining owners. This has been held to have the effect of depriv-
ing each of his right to damages against the other for the tres-
passes occasioned by failure to repair. (8 Ala., 492.) Division fences
may be put along the dividing line and may extend half way on
each side of it; and they are, when built and maintained by each of
the owners, the common property of both; but when the respect-
ive portions to be maintained by each have been duly assigned,
“then such portions belong to the owners who built them.

An owner of improved land is only obliged to fence against cat-
tle which are lawfully‘in the adjoining field. (37 N. H., 331.)
‘Tf the cattle of a third person break into or unlawfully enter an
adjoining field and from there enter the first party’s land, said first
party can recover damages from the owner of the cattle, no mat-
ter whether the division fence is out of repair or is totally wanting.
The division fence laws apply only as between adjoining owners,
and third persons cannot take advantage of the provision depriv-
ing the owner who fails to maintain his fence of his action for
damages. (29 Me., 282; 6 Mass., 90; 17 Mich., 417.)

5. Fence Law Applies only to Improved Lands. The stat-
utes relating to division fences apply only to improved lands.
They do not require the owners of uninclosed, unoccupied or wild
lands to build and keep up division fences. (31 Wis., 194.) Nor
can one owner or occupant, who improves his land, compel his
neighbor who does not, to unite with him in the maintenance of a
fence between them. Both parties must improve their lands in
order to make the statutes apply. Of course one owner can not
evade the law by leaving a strip of unimproved land along the line
of the division fence, or by purposely making his fence a few feet
inside of the dividing line instead of on it. (22 lowa, 572.) Such
dodges are too palpably evasive of the law to be effective.

In some States these provisions are held to apply to the occu-
pants, and in others to the owners of improved lands. In Wiscon-
sin, for example, it was held that a decision of the fence viewers
requiring an occupant to erect or pay for a portion of the division
fence was void, as the occupants of improved lands, unless they
are the owners, are under no obligation to maintain fences, (19
Wis., 49.) While in other States the obligation to fence is laid
upon occupants, no matter what their title; and it seems that in
such case any occupant, no matter what his rights as to ownership
FENCES. 147

 

are, may enforce the law against an adjoining occupant (17.
Wend., 320), if the latter has sufficient title to authorize him to
construct the fence. (36 Mich., 417.)

6. When Division Fences not Necessary. The provisions
for the maintenance of division fences are for the mutual benefit
and protection of adjoining owners or occupants who desire to
improve their lands. Whenever one owner does not improve his
land, the necessity for him to contribute toward the maintenance of
a division fence ceases. The obligation does not arise, at least,
until he improves his land. Even after the respective portions to
be maintained by each have been assigned and the fence has been
built, either party may, in some States, withdraw from the arrange-
ment. If he wishes to throw open his land and cease improving it,
he may, on giving notice to that effect to the adjoining proprietor,
remove his portion of the fence. (3 Wend., 142.)

Adjoining parties may also, by agreement, dispense with the
fence between them; being for their mutual benefit only, no one
can complain if they choose to do without it.

In both the above cases, or in any other case when the division
fence has been dispensed with or never built, the common law pre-
rails between the adjoining proprietors. Each is presumed to fall
yack upon his common law liabilities and to be satisfied with his
.ommon law protection. Each must keep his beasts upon his own
premises, or become liable for the damage caused by their tres-
passes. (17 Mich., 417; 45 Ill, 76; 9 Ind., 290.)

When a division fence is thus dispensed with, the adjoining 6wn-
ers ought, as a matter of precaution, to make an agreement that
neither shall be liable for the trespasses of his beasts upon the
other’s land.

7%. Exterior or Road Fences. With respect to outside fences,
we have seen that at common law there is no obligation on the
part of land owners to maintain them, There is no obligation to
maintain such fences imposed by the statutes of the American
States. All that is done is to take away the right of action for
trespass from such owners as fail to inclose their lands with fences,
and this is done only in a portion of the States, Where it is done,
however, or where under a general law the people of a township
by vote allow cattle to go at large in the highways, or where as in
Illinois, towa, Missoari, Oregon, and some other States, it has
been held lawful fer cattle and other domestic animals to go at
148 MANUAL OF THE LAW.

 

1arge, there the owners of land are left to protect their premises
against the trespasses of such animals by such means as they may
think best. They are in effect required to fence their lands if they
wish to cultivate them. This subject is closely connected with
that of cattle in the highway, which is treated in the next chapter,
and to which the reader is referred.

If one had upon his premises any dangerous pit or miry spring,
he would be required to either fence it or take such precautions as
would prevent harm from it to other persons or their cattle. The
fact that the owner must guard a dangerous place of that sort may
occasionally add to the obligation of fencing, and it consequently is
referred to here.

8. Railroad Fences. The statutes of many of the States
require that railroad companies shall maintain good and legal fen-
ces on both sides of their tracks. Where there are no such statutes
such companies are under no obligations to fence their roads. If
cattle or other domestic animals enter because there are no fences
they are trespassers, and if while there they are killed or injured
by the cars, their owners cannot recover damages unless the rail-
road company is guilty of very gross negligence or intentional
wrong. This is the general rule, and there are many cases in
which it has been applied. (5 Denio., 255; 29 Me., 307; 17 IIL,
131; 19 Pa. 298.) Where cattle are lawfully in the highway,
under provisions allowing cattle to run at large, and from there
they stray upon the railroad and are killed, the rule is also applied.
There can be no recovery of damages, because it is regarded as
negligence for a person to allow his cattle to go at large in the
highway in the immediate vicinity of a railroad, whether the rail-
road is fenced or not. (14 Barb., 364; 11 ib., 112.)

Where, however, there is an obligation to fence, there the rule
of liability is changed. Until such fence is duly made the railroad
company is liable for all resulting damage to live stock, and it in
some States cannot show in defense any contributory negligence
on the part of the owner of the live stock, the statute requiring
fences being a police regulation, and the action for damages being
based upon it, the negligence of the plaintiff cannot generally con-
stitute a defense. (28 Mich., 510; 13 N. Y., 42; 30 Ind, 321.)

When the railroad company has built the required fence its lia-
bility then ceases, unless it is guilty of some other negligence. If
the fence is blown down by violent wind, and before the company
FENCES. 149

 

has notice of it cattle enter and are injured without other fault on
the company’s part, the company is not liable. It is not obliged to
keep a night patrol to see that its fences are not blown or broken
down, (27 Ill., 55.) Soif the fence gets out of repair without
the company’s fault, it is entitled to reasonable time in which to
repair it, and if, before it has had reasonable time, injury results, there
is no liability. (33 Ill, 289.) But the company is held to a high
degree of diligence in all such matters. So, also, if some stranger
wrongfully opens the fence, or if an adjoining owner carelessly
leave the gate open, the company will be relieved from liability,
if not itself grossly negligent. If cattle get upon the track, even
unlawfully and wrongfully, the engine driver is not for that reason
warranted in running them down and wantonly killing them. If
he does so the company will be liable. (37 Ark., 562.) But the
engineer is not necessarily required to stop his train or even slacken
his speed if he reasonably believes that by blowing the whistle he
will frighten the cattle off. (37 Ark., 593.)

Under the statutory provisions requiring railroad companies to
fence their tracks, it is not necessary or even proper that the tracks
should be fenced at all places. The statutes obviously do not
require the enclosing of railroads at places where the public neces-
sity or convenience demands that they be left open, as at the cross-
ings of streets and spaces in front of mills, elevators, depots, or
freight houses. (28 Mich., 510.) But under this exception com-
panies have no right to throw open their tracks throughout the
entire length of a city or village, as they often do, as the exemption
only extends to places where it would be obviously improper and
unreasonable to fence. (29 Ind., 471.)

While a railroad company which has failed to build or maintain
its required fence cannot generally escape liability by showing that
cattle injured or killed were unlawfully in an adjoining field, or
negligently allowed to go at large in the highway (29 Barb.,
64.), still a statute making railroad companies absolutely liable
for such injuries under all circumstances would not be good law.
Consequently a law in Alabama making railroad companies abso-
lutely liable for all stock killed on the tracks was held to be uncon-
stitutional. (66 Ala., 85.)

9. What is a Legal Fence? The statutes of the several
States define in most instances specifically what shall be deemed a
legal and sufficient fence. The provisions are far from uniform,
150 MANUAL OF THE LAW.

 

and, being so numerous, of course cannot be given here. In some
States, as in New York, the electors of each town may, by vote,
decide for themselves as to how fences shall be made and what
shall be deemed sufficient, though it has been held in that State
that it is a part of their common law that adjoining owners may
erect crooked or Virginia fences as division fences, placing them
equally on each side the line. (18 Barb., 397.)

In Michigan all fences four and one-half feet high, and in good
repair, consisting of rails, timber, boards, or stone walls, or any
combination thereof, and all brooks, rivers, ponds, creeks, ditches,
and hedges, or other things which shall be considered equivalent
thereto in the judgment of the fence viewers within whose juris-
diction the same may be, are deemed legal and sufficient fences. *

In Missouri a legal fence may be a hedge, or any “fence suffi-
cicntly close, composed of posts and rails, posts and palings, posts
and planks, posts and wires, palisades, or rails alone laid up in the
manner commonly called a worm fence, or of turf with ditches on
each side, or of stone or brick.” Hedges must be four feet high,
post fences four and one-half feet high, turf four feet high with
ditches on each side three feet deep in the middle and three feet
wide, worm fences must be five and one-half feet high to the top
of the rider, or if not ridered five feet to the top of the top rail, and
must be locked with strong rails, poles, or stakes. Stone or brick
fences must be four and one-half feet high. (Laws, Mo., 1877,
p. 8.)

For detail information concerning the requirements of a legal
fence in any particular State, the reader is referred to the statutes
of that State, to be found, generally, with any justice of the peace
or township clerk.

 

*See Howell’s Statutes, Vol. 1, page 262.
CHAPTER XVII.

CATTLE IN THE Hicrwaryr.

8. A Question of Expediency. 2. A Question of Right.
3. Summary.

1. A Question of Expediency. Whether it is proper ano
expedient to allow cattle and other domestic animals to roam at
large and pasture in the public highways of the country, is a
question that has occasioned much discussion among farmers. On
one hand it is claimed that to allow them there necessitates the
maintaining of strong exterior fences, the constant watching of
gates, the endless annoyance of persons using the roads, besides
occasional injuries to crops in spite of all precautions. In addition
to these it is claimed to be an injustice to adjacent proprietors who
own really to the center of the roads, and who are justly entitled
to every benefit and use that can be got out of them, subject only
to the public easement or right of travel and the right to repair.
On the other hand it is claimed, with possibly equal force, that
were cattle not allowed to depasture the highway, the grass and
other herbage growing there would be practically lost; that it
is no detriment to the adjacent owner to have such herbage
grazed off, as he would never utilize it himself; that he would be
obliged to maintain exterior fences anyway (because cattle, being
lawfully driven along the roads, would otherwise escape into his
fields and injure his crops, and the owners of such cattle would
not be liable for such injuries if the cattle escaped without their
fault); and further that it is a great benefit to community and
especially the poor to have cattle thus feed upon what would oth-
erwise be lost,—many a poor widow is thus enabled to keep a cow,
152 MANUAL OF THE LAW.

 

and so support herself and family, who otherwise might be reduced
to want. Itis asserted further that in many communities, especi-
ally those but newly settled and yet undeveloped, it is a matter of
absolute necessity that domestic animals have the freedom of the
highways and neighboring uninclosed lands. There is not enough
land enclosed in many such communities to pasture half the cattle,
and indeed it is not possible for farmers to enclose more than they
actually cultivate.

These two opinions have led to a diversity of legislation upon
the subject, and consequently to a lack of uniformity in the law of
the matter in this country at the present time.

2. A Question of Right. As has been repeatedly stated, it
is at the English common law a trespass for cattle to roam unat-
tended or pasture in the highway. Every man must keep his
domestic animals upon his own premises at his peril. This may
be said to be the fundamental law of this country, except so far as
it is modified by statute; and the validity of such statutes as delib-
erately provide for the running at large of domestic animals has
been seriously questioned. However there are such statutes in nearly
all the States, as only a few of the eastern and older States have
seen fit to retain or return to the common law provisions upon this
point, and while we cannot go into details, we shall endeavor to so
group the general outlines of these statutes that the reader may get
a fair idea of their scope and effect, and for particulars may refer
to the detail provisions in force in his own State.

Remembering the fundamental right of every man, over whose
farm a highway runs, to every use of the highway which does not
interfere with the public right of travel, we find that this right is
guaranteed and protected only in Massachusetts, Maine, New
Hampshire, and possibly a few other of the older States which have
become more or less completely settled and developed. But even
in these States there does not seem to have been a case reported in
which damages have been awarded simply because cattle trespassed
upon land in the highway. It has been held only that it is unlaw-
ful for them to be there, except for purposes of travel, and if they
are there unlawfully and escape into adjoining land because the
fence is deficient or altogether wanting, their owner is liable for
all the damage they cause. (4 N. H., 516; 19 Johns, 385.) So
stringently has the rule, that every man must keep his cattle upon
his own premises, been enforced, that it was held that where a
OATTLE IN THE HIGHWAY. 153

 

stranger roaming over one’s farm left the gate open and his cattle
escaped into the highway, and from there went into another’s corn
field, that the owner was responsible for and must pay the dam-
ages, though not himself at fault. (30 N. H., 143.) Butthis was
rather an extreme case.

3. Statutes on the Subject. The most common statutory
modification of the common law rule on this matter is that which
takes away the action of trespass from every land holder who
does not erect and maintain sufficient exterior fences about his
land. These statutes do not legalize the presence of cattle in the
highway, but they simply deprive the farmer of his remedy for
trespasses by cattle unless his lands are fenced. The validity of
these laws does not seem to have ever been questioned, though
they have been very generally enacted in the Middle, Western,
and many Southern States. The people seem to have acquiesced
in them without complaint, for the reason, possibly, that they
have not been put thereby to much extra trouble or expense.
Exterior fences are practically necessary any way. It is lawful
to drive cattle along the road, and if without the owner’s fault
they break away and injure adjoining crops, he is not responsible,
if he drives them out as soon as he reasonably can. (114 Mass.,
466.)

Another modification of the common law rule, which has been
adopted in many of the Middle and Western States, is that embod-
ied in statutes providing that the electors of any town may decide
by vote whether cattle shall be allowed to run at large in the
highways.

' The validity of these provisions has been questioned in several
instances, though as a rule they have been accepted and acted upon
by the people without serious objection. In several New York
cases, however, their propriety has been doubted. In Tona-
wanda R’y Co. v. Munger (5 Denio, 253) the court say that the
legislature has no power to authorize towns to vote that cattle may
depasture the highway unless compensation is made to the owner
of the fee of the way; otherwise the towns would be giving away
something that they do not own, and depriving people of their
rights without paying for them. In another case (4 Barb., 56)
the court held incidentally that the power of the town in this direc-
tion could not be extended beyond allowing the adjacent owners
to graze their own cattle upon such portions of the highway as
154 MANUAL OF THE LAW.

 

they respectively own. Such a construction of the law of course
defeats its main purpose, which is to benefit the poorer inhabitants
rather than the great land owners. In still another case a contrary
view was taken, it being held that such power could be authorized,
because when the highways were laid out and paid for, compensa-
tion was made for all rights and interests which the public could
make use of under the law, and the right of pasturage being pro-
vided for by law must have been contemplated and included when
payment was made, and hence has become a public right like that
of travel. (19 Johns, 385.) In Michigan there is a provision that
the board of supervisors may by resolution regulate the time and
manner in which domestic animals may run at large, but the
supreme court of that State question its constitutionality. What-
ever rights the public may have in the highway, a common pas-
turage is not among them. (39 Mich., 365.)

In some States where the common law on this point has been
thus modified, and where it may be said to have lapsed by reason
of the universal custom of disregarding it, statutes have been
enacted providing, in express terms, that it is unlawful for domes-
tic animals to roam in the highways. The effect of such statutes
is presumably to restore the incidents of the common law. In
Michigan, for instance, there is a statute providing “that from and
after the year 1867 it shall not be lawful for cattle, horses, sheep,
and swine to run at largein any highway of this State.”* The act
is made inoperative in any county in which the board of supervis-
ors see fit, by resolution, to make it so. The act provides that it
shall be the duty of all overseers of highways to seize and take
into custody all such animals found at large in their respective dis-
tricts contrary to the provision of the law; also that it shall be
lawful for any person to seize and take up any such animals found
at large in the highway opposite land owned or occupied by him,
or found trespassing anywhere on his premises. When so taken
up such animals are to be advertised for sale, and, if not redeemed
by the owner within a certain time, are sold, and from the pro-
ceeds compensation is made to the person taking the animals up
for his trouble and for any injury that he may have suffered. The
balance, if any, is turned over to the. township treasurer for the
use of the town. The statute has been pronounced constitutional
by the supreme court. (39 Mich., 451.)

 

 

* See Howell’s Statutes, 2 2106.
OATTLE IN THE HIGHWAY. 155

 

3. Summary. To put this matter into a single paragraph, it
may be said: Inthe Eastern States generally it is a trespass for
domestic animals to depasture the highway, and unquestionably an
actionable trespass for them to enter upon land from the high-
way whether such land is fenced or not. In the Middle and some
of the Western and Southern States, while their presence unat-
tended in the highway is probably an intrusion upon the rights of
adjacent land owners, there are provisions for the electors of towns
to allow them there, and while such provisions are in theory not
valid, still the people have in the main submitted to them without
serious complaint and without definitely establishing their invalid-
ity in a single State. In many of the States included in the last
mentioned group, and in the newer States generally, there are pro-
visions which, while not expressly permitting the presence of cattle
in the highway, deprive the farmer who fails to fence his land along
the road of his remedy against the owner of cattle that escape
therefrom and injure his crops, which amounts practically to about
the same thing. Finally there is a growing disposition, as the
country becomes developed, to return to and enforce the common
law requirement that every man shall keep his domestic animals
upon his own premises.

12
CHAPTER XVIII.

LIABILITY FOR THE ACTS OF ANIMALS,

General Rule as to Trespasses. 6. Keeping Wild Animals.
Exceptions to General Rule. 7. Injuries by Dogs.
Injuries by Vicious Animals, 8. Dog Laws.

Owner Liable if Negligent. 9. Dog Fights.
Contributory Negligence Excuses. 10. Who Liable for Injuries.

yey es

1. General Rule as to Trespasses. We have seen that it
is the owner’s duty té keep his domestic animals upon his own
premises. If he fails in this duty, and they escape upon other
people’s premises and there do injury, it is a trespass for which an
action will lie and for which damages may be recovered.

2. Exceptions to General Rule. Like all legal rules, this
has its exceptions, and the principal one is that where the trespass
is committed because of the failure of the injured party to main-
tain some fence, which he is under legal obligation to maintain,
either by force of some statute, or some agreement, or some pre-
scriptive right, then the right to recover damages is cut off. Or
where the trespass is committed without any possible fault on the
part of the owner, as where he is driving his cattle lawfully along
the highway, and they escape into adjoining lands in spite of his
precautions to the contrary, and he takes diligent and speedy steps
te get them back, then there is no liability. This matter of tres-
passes by animals has been so fully considered indirectly in the last
two preceding chapters that it seems proper to drop it here and
proceed at once to the more important matter falling under the
title of this Chapter, namely:
LIABILITY FOR ACTS OF ANIMALS. 157

 

3. Injuries by Vicious Animals. For the vicious acts of
domestic animals, like kicking, hooking, or biting, the owner is
liable, but his liability depends upon some knowledge on his part
of their disposition or propensity to do such things, and upon his
failure to take such precautions to prevent an injurious exercise of
that propensity as such knowledge would cause a prudent man to
observe.

From this statement of the law, we see that the liability is really
simply a question of negligence.

4. Owner is Liable if Negligent. If a man owns or has
charge and keeping of any animal which he knows has a dispo-
sition to do harm, it is his duty to so restrain that animal or to take
such reasonable precautions as will prevent others from being
injured by it. If he fails of this duty, and the injured party is in
no way at fault, then he is liable for such injury as is directly
traceable to his neglect. Some knowledge of the animal’s evil
propensity is of course necessary in order that the owner may be
put on his guard. And, as to what will constitute sufficient knowl-
edge or notice in this respect, it is said that it must be such as would
satisfy a reasonable and prudent man. It is not necessary that the
animal should have previously, to the owner’s knowledge, com-
mitted mischief, but if it has exhibited a disposition or propensity
to do so it is enough (5 Strob., 196), though if, on a single previous
occasion the animal has committed a vicious act and the owner
knows it, that is said to be sufficient to charge him with liability.
(25 Conn., 92.) Still the notice must be of a propensity to do the
act which did the harm. Notice that a dog will worry sheep is
not notice that he will attack a person, nor is notice that a horse
will run away notice that he will kick or bite (66 IIl., 309), though
it is held that knowledge that a bull attacks and gores other ani-
mals is sufficient warning that he would in like manner injure per-
sons. (27 Pa. St., 331.)

Consequently if one owns an ugly bull it is his duty to so
restrain as that it cannot injure anybody. But even if he fails in
this, and somebody else, knowing the bull’s evil nature, recklessly
puts himself in its way, and so is injured, there is no liability.

5. Contributory Negligence Excuses. It is obvious that it
would not be right to allow one to recover damages for an injury
which he himself helped to bring about. So if one needlessly
ventures too near a bull which he knows is ugly or a horse which
158 MANUAL OF THE LAW.

 

he knows will kick, he can recover no damages if he is injured,
though the owner was guilty of gross negligence in allowing the
animals to be unrestrained. But if a little child incapable of obser-
ving and guarding against danger, or too young to be guilty of
contributory negligence, goes near and is injured, without fault on
the part of its parent or guardian, then the owner is liable. (4
Allen, 431.) The owner should not have left it unrestrained in
any place where small children would be likely to come near it,

It has been repeatedly held that it is no defense, to an action for
damages caused by a vicious animal, that the injury complained of
was committed on the owner’s premises and that the person injured
was at the time a trespasser (17 Wend., 496); unless the trespass
amounts to contributory negligence it cannot be set up as a defense;
for a man cannot defend his premises by such means as a ferocious
animal, any more than by setting man traps or spring guns. (14
Conn., 1.) If a man keeps a ferocious bull upon his farm and
allows it the freedom of his pastures, and persons casually crossing
the farm, with no other fault or carelessness on their part save that
of being upon the land without permission, are injured by the bull,
the owner is unquestionably liable (3 C. & P., 138); or if one
kceps an ugly and savage dog, and persons hunting in his woods,
even on Sunday, are bitten by it, he will have to pay for the injury,
though he did not set the dog on, (17 Wend., 497.)

Doubtless one may defend his premises against burglars by such
means as a savage dog; but if the dog bites any one coming to
the house on any innocent purpose, even in the night time, the
owner will be liable. One may drive trespassing cattle off his
premises by setting adog upon them, and he will not be liable
unless the dog unnecessarily worries or seriously injures them (9
Mich., 158; 23 Vt., 236), nor will he be liable if after being driven
off the cattle stray away and are lost. (18 Pick., 227.) But if he
were to kill the cattle simply because they were trespassing, he
would be liable for their value (4 Tex., 492); and the same would
be true if he killed hens simply because they were in his garden
(107 Mass., 406), or dogs simply because he thought they had
been interfering with his hen’s nests. (5 Ind., 216.) The law
affords him another and more civilized remedy in all these cases.

There are many cases holding that if aman turns his animals
into the highway he becomes liable’ for all the damage they do
there, no matter whether he knows they have vicious dispositions
LIABILITY FOR ACTS OF ANIMALS. 159

 

ornot. (4 Allen, 444.) Aside from the illegality of so doing,
the act is deemed gross negligence, and such as will of itself
charge the owner with liability. (39 N. Y., 400.) In one case
this doctrine was carried so far that a man who turned his horse
to feed in a public place, where some little children were playing,
one of whom began switching the horse and was by it kicked and’
killed, was convicted of manslaughter. (10 Cox., 102.) But this
extreme doctrine can not be said to be the law of America at
the present day, as the weight of authority vests the liability
only upon some negligence—or failure to exercise such care
and precaution as a prudent man would under the circumstances,
Still it is not safe to say that where breechy animals break into
a field in spite of the legal fences that may enclose it, that the
owner is not liable for anything more than the herbage they
destroy if he does not know them to be vicious. There are so
many cases holding the owner liable under such circumstances, not
only for herbage destroyed, but for injury done to other stock,
like goring, kicking, etc., and this, too, irrespective of his knowl-
edge of the viciousness of his beasts, that it may be said they con-
stitute this class of cases an exception to the general rule above
laid down. (5 N. J., 815; 7 W. & S., 367; 16 Conn., 200; 44
Me., 322.)

Some of the law writers and many of the older decisions hold
that the mere keeping of an animal which the owner knows to be
vicious and dangerous, is of itself in theory unlawful; and upon
this ground they hold such owners liable whether they are guilty.
of any other negligence or not. (3 C. & P., 138.) But this can
not now be said to be good law. It is not unlawful to keep
vicious animals. If one has such animals he simply must take such
care, and observe such precaution as a reasonable and prudent man
would to prevent their doing injury. And if in spite of these pre-
cautions the animals escape and do harm, there is then no liability.

6. Keeping Wild Animals. The keeping of wild animals
like lions, tigers, bears, etc., was formerly regarded as unlawful
and the owner was held responsible for any harm done by them
without any proof of negligence on his part. (9 Q. B.,(N.S.) 101.)
But this, like the keeping of vicious domestic animals, can not
longer be regarded as unlawful. The necessities, tastes and habits
of modern civilization have changed this, and the keeping of such
animals for the entertainment and instruction of the people is now
i6o MANUAL OF THE LAW.

 

not only lawful but is a recognized legitimate business. And all
that can now be required of the persons who keep such animals
for any such legitimate purpose, is the exercise of that careful pre-
caution ard watchfulness which the necessities of the case demand.
(Cooley on Torts, p. 350.) They must of course take note of the
natural propensities of such animals to do harm, and of any pecu-
culiar individual viciousness they may manifest, and they must
provide such safeguards against the injurious exercise of these dis-
positions as the reason of a prudent man would dictate. Having
done that, community must be satisfied. They can not be held to
be insurers of the lives and safety of all persons against every pos-
sible harm that their beasts may do, for if despite their great care,
and notwithstanding their ample precautions, such animals manage
to escape from them and do harm, the case must be referred to the
category of accidental injuries for which no action will lie and no
damages can be recovered. (8 Barb., 360; 24 Mo., 199.)

Possibly if a farmer should attempt to keep a lion or panther on
his farm, this more liberal doctrine would not be applied. It
would be so obviously frivolous and foolhardy for him to under-
take such a thing that he ought to be held an insurer against all
injuries resulting from it, and there would be no impropriety nor
injustice in enforcing the old common law liability upon him. But
in the case of one legitimately in the busincss—like the proprietor
of a menagerie or zoological garden—nothing more can be prop-
erly required than the exercise of adequate care and prudent cau-
tion.

Nor can it be longer held unlawful to exhibit such animals
under certain proper circumstances in the public highways; the
frequency of menagerie processions—the propriety of which is so
generally acquiesced in and applauded by the public—having mod-
ified the stringency of the old doctrine that it is unlawful to bring -
such animals into the public streets. Consequently when in New
York State a horse took fright at an elephant, which was being
driven along the highway, and injury resulted, the owner of the
elephant was held not to be responsible. (38 Barb., 14.)

7. Injuries by Dogs. As almost every farmer keeps one
dog, and some farmers two or three, it will be well to look a little
further and examine a little more particularly than we have so far
done as to their standing in the law. Primarily, and in the
absence of statutes, they stand upon the same legal footing as other
LIABILITY FOR ACTS OF ANIMALS. 161

 

domestic animals, so far as injury done by them is concerned.
Their owners are liable for, and only for, such damages done by
them as from their general nature and individual character and dispo-
sition they may be expected to do. A dog which has exhibited no
vicious propensity can not be reasonably expected to do any
harm by being allowed to go at large. Consequently it is not
negligence to give a right minded dog the freedom of the master’s
premises, nor is it an actionable trespass if the dog, of his own
accord, crosses or enters upon the premises of a neighbor. But
when the dog exhibits any vicious disposition or evil propensity,
then an additional duty at once devolves upon its owner. That
duty is to take adequate steps to prevent any harm from resulting
from such disposition or propensity, and on failure to perform
such duty, the owner becomes liable for the injury if the injured
party is blameless. If the owner is notified that the dog has the
habit of worrying sheep, or that he will attack persons or animals,
he becomes liable from that time, if he keeps the dog, for all such
damage as he may do. (75 Il, 141; 19 Pa. St., 359.)

8. Dog Laws. It is not safe to state that the law as above laid
down is the law of this country generally, because there are stat-
utes in many of the States fixing the liability of owners of dogs
for injuries done by them. We can not analyze or even group
these statutes because they aretoonumerous. Their most common

. provision is to remove the necessity of proving scéenter, that is,
that the owner of the dog which did the damage knew of the
dog’s evil propensity. In the absence of statute such proof is nec-
essary, but our legislators seemed to have believed that every one
should feel the force of good Dr. Watts’s quaint couplet:

“ Let dogs delight to bark and bite
For 'tis their nature to.”

Consequently it has been quite generally provided that the
owner of a dog shall be responsible for its bites and other vicious
acts, whether his attention has been called to any particular pro-
pensity in that direction or not. Another very common provision
of these dog statutes is to make it the duty of every one, as soon
as he finds that his dog has become savage and dangerous, or has
become addicted to sheep stealing or sheep worrying, to kill it at
once. The mere keeping of such a dog is made unlawful, and the
fact that the owner endeavors to keep it so restrained that it can
162 MANUAL OF THE LAW.

 

not do harm will not protecthim. By keeping the dog he assumes
all risks, including possibly that of being prosecuted under these
statutes for so doing. In some of these States the statutes provide
for the recovery of double damages by the owners of stock injured
by dogs. Other statutes provide for a remedy against the town
for injuries to sheep by dogs whose owners can not be ascertained;
still others that where the dogs of several proprietors unite in a
sheep-stealing expedition, each owner shall be liable for all dam-
age done. But the details of these statutes, or the provisions of
those for each particular State, can not be here given, For such
information the reader is referred to the statutes of his own State.

9. Dog Fights. Question has sometimes arisen as to who is
responsible for the consequences of a dog fight. Dogs are noto-
riously liable to fall to fighting just for the sake of the thing itself,
with apparently no particular provocation or just cause. They
often thus do great damage to each other, not infrequently fighting
to the death, They are now, with us, unquestionably the subjects
of property, and their owners can recover their value if they are
unlawfully killed. It is therefore not a frivolous question to ask
who, if any one, shall be liable when they kill each other. The
scarcity of reported cases in point upon the matter renders it diffi-
cult to speak with certainty; but it is probably safe to say that the
general rules of liability applicable to the case of the keeper of
vicious animals generally apply to that of the owner of a dog
which viciously kills or injures another dog. If a man owns adog
having a propensity to wantonly attack and kill other and especially
smaller dogs, it is his duty to guard against the injurious exercise
of that propensity. Still it cannot be said that because a dog is
unwilling to have other dogs trespassing upon its master’s premises
it is therefore to be regarded as a dangerous animal. To attack
and drive off dogs suffered to go at large to the annoyance and
danger of the public might be a virtue. It is at least a very differ-
ent thing from attacking persons who are trespassers, and the cases
where dogs have attacked human beings who were trespassers,
and the owners were held liable are not applicable. (22 Barb. 506.)
Owners of valuable dogs must take care of them in proportion to
their value, and keep them upon their own premises or at least
under their own eyes. If they allow them to go at large they
must take the risks of such dog fights as they may get into. The
law can not attempt to go zat the merits of a dog fight and say
LIABILITY FOR ACTIs OF ANIMALS, 163

 

which dog is blamable and which is not. The proprieties of dog
conduct cannot be determined by the judicial tribunals of the land.
Consequently if dogs get to fighting without fault on the part of
the masters there is no liability for the consequences. In Mich-
igan there was a statute requiring the owners of all dogs to pro-
cure licenses for them and keep them collared, and making it law-
ful for any person to kill any dog found going at large not licensed
and collared. While this statute was in force a large dog meet-
ing a small but valuable one, and observing that it was not collared
as required, proceeded to execute the law upon it by killing it
forthwith. The owner of the small dog brought suit against the
owner of the large one who endeavored to shield himself under
the provision of the statute making it lawful to kill unlicensed
dogs. But the Supreme Court of that State said (34 Mich. 283)
that a statute under which a party in so summary a manner is to
be deprived of his property by having it destroyed cannot be
extended by such a construction. The power of the legislature to
pass the act was not questioned, but it was held that it must be
strictly construed. If it allowed fersons to kill unlicensed dogs the
authority could be held to extend to animals also,

10. Who Liable for Injuries. Theduty of guarding against
injuries by vicious animals rests upon the one having the care and
custody of them, whether he is the owner or not. (16 Ind., 251;
32 Cal., 102.) Ifa farmer takes horses or cattle to pasture he
becomes liable for their trespasses and for their vicious acts. And
the same is true of dogs. They are presumed to belong to the
person who harbors or keeps them, and such person is liable ar
their owner. (3 Allen i1g1.)
CHAPTER XIX.

ING URIES BY DOMESTIC ANIMALS.

1. Legal Remedies for Injuries by 5. Damages Done by Chickens

Animals. and other Fowls.
2. Remedies for Trespasses. 6. Remedy for Vicious Injuries,
3. Impounding Cattle. 7. When Vicious Animals may
4. Turning Trespassing Cattle into be Killed.

the Highway.

1, Legal Remedies for Injuries by Animals. When a
wrong has been committed, through the agency of a domestic
animal, there are several ways in which it may be righted. In the
first place it may be forgiven. We are admonished by the good
book to forgive our neighbor’s trespasses, and although it says
nothing about forgiving the trespasses of his breechy cows or long
nosed pigs, I know of no Christian grace more becoming a rural
gentleman, or more essential to suburban peacefulness, than that of
clemency in this direction. Many a bitter country quarrel, with
all its black accompaniment of vindictive acrimony, has ensued
because of a little lack of forbearance, when, for the fourth time
within an hour, perchance, one has rushed out on a hot summer
afternoon to drive his careless neighbor’s pigs out of the potato
patch.

Still there are times, unquestionably, when forbearance certainly
ceases to be a virtue, and when not only propriety, but duty and
necessity compels one to proceed to extreme measures. Our pro-
gress towards a higher type of agriculture, towards rural order and
tidiness, and proper respect for property, is aided often by people
taking occasionally a bold stand upon their legal rights. When
the time arrives therefore to do so, it becomes necessary to know
not only those rights but the proper remedies for an infringement
of them,

 
INJURIES BY DOMESTIC ANIMALS. 165

 

2. Remedies for Trespasses. For the trespasses of domestic
animals, that is for their unlawful breaking into or entry upon lands,
their owner or “agister ’—as the person charged with their keep-
ing is called—may be proceeded against by a suit at law in the
action of trespass for a recovery of the damage done. In sucha
suit, if successful, a judgment may be had against the defendant
for the amount of the damages and costs, But this remedy will
be found in many instances to be ineffectual. The defendant may
be pecuniarily irresponsible, the very cattle that committed the tres-
pass may be exempt from execution, and consequently the judg-
ment can never be collected. Or it may not be known to whom
the trespassing animals belong, and the difficulty of ascertaining
may, in many cases, cost the injured party more than the damages
amount to; or if this be known, and a suit for damages be insti-
tuted, such suit will not prevent another trespass the next day, and
hence another suit may be necessitated. For these and other
reasons the law has long afforded the farmer a more summary and
unceremonious method of relief for trespasses by domestic animals,
namely, that of distraining them and impounding them in the town
pound.

3. Impounding Animals, When domestic animals, such as
‘cattle, horses, sheep, or swine, unlawfully break into and enter
upon one’s lands and there do injury, they may generally be
impounded in the town pound and there be detained until their
owner pays the amount of the damage they have done. This is
now purely a statutory remedy, the old common law method of
taking cattle damage feasant having been superseded, and great
care must be taken whenever the proceeding is made use of to
conform strictly to the terms of the statute authorizing it. Being
an ex parte proceeding, the owner of the animals having little or
no voice in the matter, the letter as well as the spirit of the law
must be observed.

The varying details of the statutes regulating this method in the
different States cannot, because of their length, be given here.
Reference must be had to the statutes of the State in which the
reader lives, before he takes any steps in the matter, for if anything
is omitted, or wrongly done, the whole thing may fail. (35 IL,
417.) The general outlines of the method are as follows: When
any person finds any horses, cattle, sheep, swine, goats, or asses
(in Mass. hens also) unlawfully upon and doing damage to his
166 MANUAL OF THE LAW.

 

premises, he may at once drive them to the town pound, leaving
with the pound keeper a memorandum in writing, stating the cause
of the distraining and the sum demanded for the damage done by
the beasts. If the owner comes for them he may have them on
paying said amount and the poundmaster’s fees, etc. If he does
not come within twenty-four hours, notice must be given to him
or left at his house, giving a description of the beasts and the time
place and cause of impounding. If the owner is not known or
cannot be found such notice must usually be posted in three or four
conspicuous places in the township, and also published in some
local newspaper. If the owner does not then come and pay the
amount within a specified time, the animals are advertised and sold,
and from the proceeds payment of the damages is made to the
injured party, and the balance put into the town treasury. If the
owner comes and is dissatisfied with the amount claimed by the
person impounding, the just amount of damages may be determined
by two discreet persons appointed and sworn by a justice of the
peace. If the amount so determined is not forthwith paid, the
animals are advertised and sold at auction, The proceeds of the
sale, after paying the damages, fees, and expenses, are turned over
to the township treasurer for the use of the owner of the beasts,
who may get them any time within two years. If the beasts
escape from the pound, or are rescued by the owner, the pound-
master may retake them whenever and wherever he can find them;
and in case they are forcibly rescued, the owner is subjected to a
heavy fine.

In many States there is a provision that whenever one’s beasts
are distrained and impounded he can bring the action of replevin
against the person distraining, on the trial of which cause the dam-
ages sustained by the defendant may be ascertained and judgment
given him therefor, together with the costs and expenses, which
judgment must be paid before the beasts are delivered; or if they
are delivered before judgment, a bond must be given to secure
payment of such damages and costs as are awarded.

4. Turning Trespassing Beasts Into the Highway.
Another way in which a farmer can proceed when he finds ani-
mals trespassing upon his land is to quietly turn them out into the
road. It is lawful for him to do this, and he is not responsible to
their owner if they then stray away and are lost (18 Pick., 227);
nor will he be liable if they there meet with an accident and are
INJURIES BY DOMESTIO ANIMALS, 167

 

injured. (32 Pa. St. 68.) Nor if they there do injury to other
animals or persons in the highway will he usually be responsible.
In driving cattle off from one’s premises he may use a dog to
hasten their departure, and he will not thus render himself liable
if the dog does not unnecessarily worry them or do them bodily
harm. (23 Vt., 236; 9 Mich., 158.) But he will not be justified in
inflicting injury upon them because of their trespasses; nor in set-
ting a ferocious dog upon them. In Indiana a man set a large
fierce dog upon a mare which had jumped over a secure fence into
his cornfield. The dog so chased the mare that she ran against a
snag and was injured so that she afterward died. The court held
the man liable, and he had to pay the value of the mare (6 Blackf.,
258.) Nor can one set traps or spring guns for trespassing ani-
mals to fall into or be injured by without being liable if they are
so injured, and as we have seen, he cannot ever take their lives
merely because they are trespassing. (2 E. D. Smith, go.)

5. Remedy for Damage Done by Fowls, etc. The above
remark applies also to trespassing chickens, custom to the contrary
notwithstanding. One cannot shoot his neighbor’s hungry hens
because they keep coming upon and scratching up his newly made
garden. In one case in Connecticut a man who had been sorely
pestered by the trespasses of his neglectful neighbor’s chickens,
prepared Indian meal mixed with arsenic and scattered it upon his
land, having first informed his neighbor of what he was going to
do. The neighbor still neglected to confine his fowls and ten of
them ate of the meal and died. The man, after paying the expen-
ses of carrying the case to the Supreme Court of the State, had to
pay the value of the fowls. (14 Conn.,1.) There are other cases
of like import. The proper remedy is an action for damages.
The law for impounding does not usually include fowls.

6. Remedy for Vicious Injuries. The usual legal remedy
for damages caused by the vicious acts of domestic animals, is an
action om the case, as it is called, for damages. This is the action
for all injuries which result from the negligence of the defendant
in not properly restraining his animals. The action is sometimes
brought for the recovery of a penalty instead of damages, as where
a penalty is provided by law for the doing or omitting of some act
which has resulted in the injury of the plaintiff. For example
there are, in many States, statutes providing that the owners of
168 MANUAL OF THE LAW.

 

bulls, stallions, rams, and boars shall keep them within their inclo-
sures at their peril, and that they shall forfeit the sum of $10 or
$20, or some other sum for every failure todoso. This penalty
is usually made recoverable by the owners of any cows, mares,
sheep or swine that may be damaged in consequence, in addition
to such damage. And here it may be remarked that aside from
any statutes upon the subject, the owners of male animals, such as
are above referred to, are under obligation to guard against injury
resulting from their peculiar masculine propensities. A failure in
this duty is such negligence as generally renders them liable for
the resulting injury. (26 Ind., 334.)

7. When Vicious Animals may be Hilled. Vicious animals
may sometimes be lawfully killed, and often under circumstances
where their owners could not besued. Any person may kill a mad
dog at any time or place, or a dog that he has good grounds for
believing mad, or that he knows has been bitten by a mad dog.
(26 Vt., 638; 21 Wend., 406; 27 Ala., 480.) So a savage and
vicious dog actually found doing mischief may be killed whether
the owner knows of its disposition or not. (13 Johns, 312.) A
dog caught in the act of killing or worrying sheep may be killed
on the spot (52 Bark., 15), but the mere fact that the dog is
chasing cattle will not of itself justify the owner of the cattle in
killing it. (4 Cow., 351.) It has been held that a dog which
comes prowling around one’s house at night, howling and annoy-
ing the family, may be killed. (23 Wend., 554.)

Animals which are regarded as property at common law—such
as cattle, horses, sheep and swine—can not generally be killed,
however vicious or dangerous they may be, unless it is absolutely
necessary to protect human beings, or to protect more valuable
property, (31 Conn., 121; Cooley on Torts, 346); and as we have
seen no domestic animals can be killed mere!y because they are
trespassing.
CHAPTER XxX.

 

NUISANCES.

1. What are Nuisances, 8. Discharge of Water.
2. Kinds of Nuisances. 9. Ponds, Sloughs, Swamps, Ets,
3. Encroaching upon a Highway. 10. Diseased Cattle, Etc.
4. Dangerous Excavations, Etc. 11. Careless Setting of Fires.
5. Old and Unsafe Structures. 12, Legal Remedies for Nuisances,
6. Overhanging Trees. 13. Abatement of Nuisances.
7. Cesspools, Privy Vaults, and 14. Injunctions.

Filthy Sewers. 15. Action for Damages,

1. What are Nuisances. A not uncommon liability, under
which some farmers are placed, is that of causing or maintaining
a nuisance upon their farms. Though it is difficult to state in con-
cise terms what a nuisance is, the popular idea of it, namely, some-
thing which annoys and disturbs people, is not far from legally
correct. Judge Cooley says it is “anything done or permitted
which injures or annoys another in the enjoyment of his legal
rights.” (Cooley on Torts, 565.) This definition may include
some things which are not nuisances, but is as good as canbe given,
Nuisances often consist of such uses of one’s own property as cause
inconvenience, discomfiture, or harm to others.

2. Kinds of Nuisances, Nuisances are public or private.
The former injure the community at large, and are punishable by
indictment, that is by a criminal proceeding brought in the name
of the people; the latter are such as result from the violation of
private rights and do damage to only one or a few persons. The
nuisances most likely to be met with in rural communities are
encroachments upon and obstructions of public highways, danger-
ous places near highways, rickety and unsafe structures, overhang-
ing trees, discharge of surface waters, percolating filth, cess-pools,
slaughter-houses, diseased stock, dangerous animals, etc., etc.

13
170 MANUAL OF THE LAW.

 

Who Responsible For. Any person who creates or keeps up
a nuisance is liable to any one who is injured or damaged in con-
sequence, and he may be subject to indictment if the nuisance
causes general injury to the public. The liability generally rests
upon the one who has possession and control of the premises upon
which the nuisance is situated, though there are a few instances in
which a person may be liabie for a nuisance which he has created
upon the premises of a third party, though he has no right to enter
and abate it. (7 M. & W., 456.) As between landlord and ten-
ant the tenant is presumptively responsible for any nuisances that
may exist upon the leased premises (59 N. Y., 28), though the
facts when shown may remove this presumption and show that the
landlord is the proper party to proceed against. (53 Ind., 21.)
When the tenant covenants to keep the premises in repair he
becomes liable for any nuisances that may exist or arise upon them
(115 Mass., 86.) When a person comes into possession of prem.
ises upon which a nuisance exists, either by purchasing or leasing
them, he.is not liable for the continuance of the nuisance until his
attention has been called to the matter and he has been requested
to abate it. The injured party cannot bring suit without first
requesting the owner to abate the nuisance, nor can he recover
damages for injuries occasioned by a nuisance which the owner
did not know of. (13 Conn., 307; 51 N. Y., 573.)

3. Obstructing or Encroaching Upon a Highway. If the
farmer puts his road fence outside of the line of the street it is a
nuisance. (37 Barb., 301.) So also if he builds a building which
extends over the street line. If the building is just upon the line
and in its second story there are bay windows or verandas project-
ing out into and over the street they are not necessarily nuisances
unless they interfere with travel in the street. The same is true
of trees overhanging the highway. The overhanging limbs are
not nuisances unless they obstruct travelers; though if the limbs
were dead and liable to fall and injure persons in the street they
would be nuisances. It has been held that a building so erected
that its roof overhangs the street, so that rain, snow, and ice
descending therefrom may fall upon and injure persons or property
lawfully in the highway, is a nuisance. The owner of it is liable
for all damages that may be thereby caused. And it makes no
difference that the owner is not in possession, or that he has no
right to enter and remove the ice and snow that may accumulate,
NUISANCES ON THE FARM, 171

 

The roof itself in that position is a nuisance. (55 N. H., 55.)

As stated in the chapter on highways, persons traveling with
ordinary care along a highway have the right to absolute safety,
not only against accidents from defects in the street, but from
obstructions there, and insecure objects placed above or near the
street. (101 Mass., 251.) Gates swinging out into the street
have been held to be nuisances if left open. No harm might ever
come from them in quiet country roads, still it would be better for
farmers to have their gates »pen in upon their own land. Leav-
ing anything in the road that unnecessarily obstructs public travel
is anuisance. Thus leaving logs or wood piled there, as we often
see it in the country, is unquestionably a nuisance. (6 Cow., 189.)
To leave a loaded wagon, or an empty one, standing over night
in the road in front of one’s house, or anywhere else in the road,
is a nuisance. To drive in the highway with an unreasonable or
outlandish vehicle, or with an unwarrantable load is a nuisance.
(3 Salk., 183.) Toso drive in the road as to purposely obstruct
the passage of another traveler, as by constantly interposing one’s
wagon as an obstacle, or to “tail” his team, as it is called, keeping
just in front of him no matter which way he turns, is a nuisance
and an indictable offense. (14 Gray, 69; 1 Watts, 360.)

Things may amount to an obstruction of the highway, and
hence be nuisances, though they are not in the road at all, but only
near it. Thus an establishment for the manufacture of gun pow-
der or nitro-glycerine, or a magazine for storing such compounds,
if near enough to a highway to endanger the lives of people there,
is a nuisance. (56 Barb., 72.) So is a building which is in such
a ruinous condition as to be liable to fall into the street. (6 Salk.,
357-) Or the leaving of any object near the road calculated to
frighten horses and thus endanger travelers. (107 Mass., 164.)
In one case a party had a derrick on his premises the boom of
which swung over the highway. It was an ugly looking object
and it frightened Mr. Jones’s horses so that they ran away and
injured him. The court said that such a thing or anything else
placed near the highway the natural tendency of which is to
frighten passing horses, is a nuisance, and that the person placing
it there must pay all the damages. (107 Mass., 261.) In Con-
necticut a water-wheel so near the highway as to frighten passing
horses was held to be a nuisance. (30 Conn., 129; 27 Id., 631.)
In Illinois the reckless blowing of a steam whistle near the road
172 MANUAL OF THE LAW.

 

was held to be a nuisance. (47 Ill., 298.) In Massachusetts the
reckless discharge of a gun near a highway was held to be a nuis-
ance. (11 Mass., 137.) Again in Connecticut an unsightly pile
of stones was held to be a nuisance (42 Conn., 295); also a steam
whistle on a mill near a highway (38 Conn., 438), and a steam
roller left beside the road. (29 Conn., 435.) But in Michigan a
steam engine on wheels passing along a highway was said not to
be an unreasonable use of the street, and hence not a nuisance.
(34 Mich., 212.)

A foul smelling hog-pen close by the way side is and of right
ought to be a nuisance, (37 Me., 361), or an unclean cow-yard, or
anything that emits an offensive smell to the discomfort and detri-
ment of travelers. (59 Mo., 321.) Any noxious concern, like a
slaughter house, bone boiling establishment, glue factory, tannery,
or the like, if so near the highway as to deprive the traveling pub-
lic of its right to reasonably pure air is a nuisance, and may be
abated.

4. Dangerous Excavations, Ete. If a farmer or other land-
owner makes an excavation so near the highway that persons
passing along may by slipping fall into it, he will be liable for the
harm done them if without their fault they do fall in. (12 IIL,
20; 51 N. Y., 224.) And the same is true if the excavation is
near the path leading to his house, or upon any other part of his
premises where he has extended an invitation either directly or by
implication for people to come. It is his duty in all such cases to
provide proper safeguards against danger and accident, and a fail-
ure in this duty renders him liable for the consequences. Not only
should he keep excavations adjoining a highway or near the path-
way to his house surrounded with proper safeguards, but any other
dangerous object or obstacle there should be properly and ade-
quately guarded against. By providing an approach to one’s house
or place of business, he gives implied permission and invitation to
all persons, having occasion to go over it, to do so, and he places
himself under obligations to keep the pathway in a safe condition.

’ And it is said that if a person is injured because of the unsafe con-
dition of such a pathway the owner can not shield himself from
liability on the ground that the injured person was a trespasser, or
had no business there (11 Moore, 354), his liability being the
same as that of a shop-keeper who invites the public at large to
enter his shop and then leaves trap doors open or other places
NUISANCES ON THE FARM. 173

 

insecure and unsafe. Wells by the roadside or near the approach,
or cisterns near the door of one’s house should therefore be kept
properly curbed or otherwise guarded.

But while the farmer must thus use care to keep his premises in
a safe condition for the visits of persons who are expressly or
impliedly invited upon them (68 N. Y., 283), including also his
servants and employes (56 N. Y., 124), it must not be understood
that he is under any such obligation to person who comes without -
any invitation, or to trespassers, or wrongdoers. (30 Md., 179; 20
Pa. St. 387.) If one goes without permission upon another’s
premises he canngt recover damages if he there falls into an
unguarded pit, or runs, without carelessness on his part, into any
other kind of danger. It is only when he goes by invitation,
express or implied, that he is entitled to care and watchfulness
from the owner. And he can not be regarded as invited simply
because his entrance is not opposed. Thus if a farmer leaves his
field uninclosed and people cross it without objection he is not
liable to one who falls into an unguarded cistern there. (25 Mich.,
1.) And what is true in this respect regarding persons is true also
of their beasts. Thus if one’s cattle trespass upon another’s land
and there fall into a pit or a well and are injured, there can be no
recovery of damages. Or is one’s breechy cow breaks into
another’s sugar bush and there drinks so much maple syrup that
she dies, he can not recover damages because the syrup was negli-
gently left there. (1 Cow., 78.)

5. Old and Unsafe Structures. A rickety old building, or
an unsafe structure of any kind may be, and often is, a legal nuis-
ance. If it is near a public highway and liable to fall and injure
travelers, it is a public nuisance and may be abated by public
authority. If it stands near the premises of an adjoining neigh-
bor and is blown down by a high wind, and injury is done to the
neighbor, like crushing his farm implements or killing his stock,
the owner is clearly liable. One can not erect or maintain so weak
and unsafe a structure that it will fall in ordinary times from its
mere insufficiency of strength, and so injure the property of his
neighbor, without being liable for the injury so done. And if his
neighbor claims damages he can not excuse himself by saying that
the neighbor had no business to leave his property where the
building could fall on it. (28 How. Pr., 511.) Of course a man
is not required to keep his structures so strong that they will with-
174 MANUAL OF THE LAW.

 

stand any and every gale. He must use a high degree of care to
make them reasonably safe, and if fhey are then blown down, or a
chimney is blown off, by any extraordinary force, like the force of
a whirlwind or a tornado, and harm is done, he will not be liable.
The liability in all these cases depends on some negligence or
want of proper care to make and keep the structures safe. If in
spite of such care they fall, and harm is done, no one is liable.
‘And it is said that the owner is not responsible if he has employed
‘competent contractors or mechanics to build or examine his struc-
tures, and is guilty of no fault on his own part. (3 H.& C., 511;
‘46 Cal., 409.)

6. Overhanging Trees. If the farmer has fruit trees or other
trees, the branches of which extend over his line and into his
neighbor’s premises, such branches so far as they extend beyond
the line are nuisances. They may be treated as such by the neigh-
bor, who may sue for damages, or he may abate the nuisance him-
self by cutting the overhanging branches off. He cannot destroy
the tree, though it derives sustenance from his soil, for that belongs
wholly to him on whose land it grows, nor can he cut the branches
back further than to the line. He can dig down and cut off the
roots which extend into his soil and the owner of the tree would
probably have no claim upon him if the tree died in consequence;
but if he deliberately killed or poisoned the tree he would prob-
ably be guilty of a criminal offense. The fruit borne by overhang-
ing branches belongs to the owner of the tree, and not to the owner
of the soil over which it hangs (11 Conn., 177; 25 N. Y., 126),
and the owner of the tree has the right to reach over and pick it,
or if it falls upon the ground he has an implied license to enter
and get it, doing no unavoidable harm. (113 Mass., 376; 46 Barb.,
3373 48 N. Y., 201.)

If a tree stands directly on the line between two farms it 1s then
not a nuisance. It belongs equally to each owner. Both own it
and its fruit in common, and neither can destroy it, or injure it,
without being responsible to the other. (34 Barb., 547; 25 N.
Y., 123.) This is the general rule, but there are some conflicting
cases. Bay windows and other projections extending over a neigh-
bor’s land are nuisances and may be abated. (51 Cal., 142.)

4%. Cesspools, Privy Vaults, and Filthy Sewers. If the
farmer has cesspools, privy vaults, sewers, or other places where
filth is collected upon his premises, it is his duty to keep such filth
NUISANCES ON THE FARM. 175

 

trom becoming a nuisance to his neighbors. (44 Ga., 324.) If it
escapes from such places and percolates through the soil and so
reaches his neighbor’s well or cellar, it isa nuisance. (1 Salk.,
360; 99 Mass., 582; 36 Wis., 50.) And it is held that in this
class of cases the law requires such precaution as will be-certain
of excluding the-filth from the neighbor’s land. The farmer can
not deposit his filth and then claim immunity because the forces of
nature, and not he, carried it to the neighbor’s well. Only. una-
voidable accident will excuse in such a case. (99 Mass., 582.)

8. Discharge of Water. In the chapter on drainage rights it
was stated that while it is not unlawful for the owner of one tract
of land to allow the surface waters which collect upon it, the rain,
melted snow, etc., to flow by percolation and other natural causes
upon the land of a lower proprietor, still if he collects such waters
in drains and discharges them at one place upon another’s lands, it
is a nuisance, and an actionable wrong, (22 Ohio St., 247.) He
may divert all the surface waters and prevent their reaching
another’s land, and for this he will not be liable though serious
damage is done, for the surface waters are his (47 N. Y., 73);
but if he turns them upon his neighbor in any other way than that
in which they naturally go, he commits a nuisance, and is liable
for the damage done.

If the waters from the roof of one’s house are discharged in
such a manner that they fall upon another’s land, or so near the
boundary line that they must escape upon adjacent premises, it is
a nuisance. (33 Mich., 232.) Or if waters are gathered into
cisterns or reservoirs which leak, and they so escape upon other
people’s premises, it is a nuisance and the owner is responsible for
the harm that may ensue. (108 Mass., 261.) When we reflect
that water stealthily finding a hidden way upon a tract of lower
land may render such land cold and unproductive, or the build-
ings that may be there damp and unhealthful, we see that these
damages may be far from insignificant, and that it behooves the
farmer to take care that he does not become responsible for them.

9. Ponds, Sloughs, Swamps, Etc. Swamps and marshes
existing by nature can not be regarded as nuisances for which the
owner of the land in which they exist is in any way responsible.
Unhealthful and damaging as their exhalations may be there still
seems to be no power or authority to compel their owners to drain
them or otherwise remove their baneful influences. They are a
176 MANUAL OF THE LAW.

 

part of nature for which man is not accountable. (Cooley on Tax-
ation, 510.) Public authorities can assume the duty of removing
them, and this is done under the operation of the various county,
township, and local drain laws, by making special levies for the
purpose. (8 Ohio, N. S., 333.) But as soon as man does any-
thing to swamps, bogs, etc., which increases their bad effects, or
changes their deleterious influences in any manner so as to make
them offensive in a new or different way from what they were by
nature, then he commits a nuisance and it is his duty to abate it,
and if he does not he will be liable for all the consequences that
can be traced to his acts. (43 Verm., 525; 47 Pa. St, 155.)
Thus if a man has a low, boggy place upon his premises which
he thinks by dyking up and draining into he can change into a
fine artificial lake, and the result of his operations is only to create
a much worse frog pond than the original, the increased miasms
of which set the surrounding community into fits of fever and
ague, it is a nuisance, and the owner will be liable if he continues
it. Likewise if a man makes a pond anywhere and for any pur-
pose upon his premises, or a brick-maker by removing clay leaves
an excavation which collects water, and such places become foul
and spread a poisonous effluvia over the neighborhood, then they
are nuisances and must be removed or remedied, or their owner
will become liable. In all these cases if the evil results from some
lawful act, but is due to the negligent and slovenly manner in
which the act is done, then the party is liable for all the injury
directly traceable to his negligence. If the act is lawful and is
carefully performed, but the evil is not apprehended or discovered
until afterward, then the party is not liable for what he has done,
but only for continuing it after he found or was notified that it
was a nuisance and was injuring others. But if the act was unlaw-
ful, like the damming of a stream and setting the waters back on
to the lands of the owner above, then he is liable for all conse-
quences, whether the act was negligently done or not. (See
Cooley on Torts.)

10. Diseased Cattle, Ete. The keeping of domestic ani-
mals which are affected with any contagious or infectious disease
in such a way as to expose other animals to the contagion is a
nuisance. It is not necessarily a nuisance to keep such animals
upon one’s premises or in one’s stables. The keeping of them is,
not of itself unlawful (2 Barb., 104), in fact one might turn his
NUISANCES ON THE FARM. 177

 

stables into a hospital for sick horses if he saw fit. But the nuis-
ance and the wrong consists in negligently keeping diseased ani-
mals there, and in not exercising such care over them as will pre-
vent injury to other persons. For instance, if one should allow
such animals, knowing them to be diseased, to have the freedom
of his premises and to go at large in the public highway, or should
water them at a public trough used for watering the sound ani-
mals of other persons, he would be clearly liable for the conse-
quences. (2 Rob., 326.) The farmer who knows that his cattle,
or sheep, or horses, have an infectious and contagious disease must
exercise all the care over them to prevent the disease from being
communicated to the animals of other persons, that a prudent man
would exercise under the circumstances, or that a rightful regard
for the interest of others would require. He must keep them
securely by themselves, and so far away from the partition between
his land and that of his neighbor that the latter’s stock can not
become infected, If he fails of this he will be guilty of maintain-
ing a nuisance, and he will be liable. So likewise if the farmer
sells diseased animals without informing the purchaser of their
condition, he will be responsible not only for the damage caused
by the disease to the animals sold, but for the damage caused to
such other animals as the disease may be by them communicated
to. (13 Wend., 518.) And when animals which are infected are
allowed to trespass upon other person’s land and they there com-
municate the disease to the animals belonging to the owner of such
land, it is held that the owner of such animals is liable for the tres-
pass and for the damage caused by the infection, and that it is not
necessary to prove that the owner knew his.animals were diseased.
(16 Conn., 207.)

There are statutes in many of the States making it a misde-
meanor to drive diseased animals, particularly glandered horses
and sheep having the foot-rot, along the public highways, and:
also preventing railroad companies from transporting them in their
cars,

11. Careless Setting of Fires. Fire is such a dangerous
element, and its consequences when beyond control are often so
disastrous, that common prudence dictates the use of great care in
the use of it. To make proper use of it is lawful; but to use it
without observing the degree of care corresponding to its danger

‘is an actionable wrong. (16 Me., 326.) The act of setting a fire
178 MANUAL OF THE LAW.

 

under proper circumstances not being in itself unlawful, the lia-
bility for injury depends upon some negligence or want of proper
care. The care required, it is said, is “that degree of carefulness
which a discreet, prudent, and careful man would exercise in the
possession of his own premises.” (8 Wis., 255.) If therefore the
farmer, on a calm day, sets fire to his log heaps or brush piles and
- while carefully tending them a sudden rise in the wind or an
. unforeseen blast takes the sparks into his neighbor’s stubble and
injury results he will not be liable. But he must not suppose that
having used proper care in starting his fires, in selecting a suitable
time, place, and method, that his responsibility then ceases. He
must watch them until they are out, and must use proper precau-
tions to prevent their getting beyond his control and spreading to
adjacent land. If, because of any negligence on his part, they do
spread, it will make no difference whether they spread by running
along the ground or by sparks being carried through the air by
the wind, he will be liable for the damage done in either case.
(107 Mass., 494.) The liability for injury depending upon neg-
ligence on the part of the person setting the fire, it is for the per-
son injured to prove such negligence; he must make it clear that
the other was to blame. (44 Barb., 424.)

Not only will the farmer be responsible for the results of his
own negligence in this matter of fires, but also for the negligence
of his servants or hired men in the ordinary scope of their employ-
ment. It is not necessary to the master’s liability that he should
direct his men to set the fires, though of course if he does so, and
they do it carelessly and injury results, he will be liable. But if
the men set the fire without the employer’s direction or permis-

‘sion—but still do it within the scope of the master’s business—
because they think it the proper thing to do, then the master will
be liable. When, however, the men embark on an enterprise of
their own and carelessly start a fire, or if they set the fire out of
sheer malice or wantonness, then the owner will not be liable; nor
well he be liable if they deliberately disobey him. (10 IIL, 425;
509.)

There may sometimes be cases in which a man will not be liable
for fires which result from his own or his servants’ carelessness; as
for instance, where he carelessly but unintentionally sets fire to
his own buildings and the fire spreads from them to his neighbor’s
premises and does damage. The New York courts hold that in
NUISANCES ON THE FARM. 179

 

such cases the damage done to the neighbor will be too remote to
be charged to the first man’s careless act. (37 Barb., 15; 35 N.
Y., 210.) But the courts of other States and the Supreme Court
of the United States have asserted another and probably better
doctrine, namely, that all the damage directly traceable to the care-
lessness of the man setting the fire is chargeable to him, no matter
whether he intentionally set the fire or not. (93 U.S.)

If fire is set by a trespasser, no matter whether he does it
carefully or not, he is liable for all the damage it does. He had
no business to set the fire at all and no degree of care on his part
will excuse him. (21 Pick., 378; 43 Cal., 437.) Therefore if a
careless hunter fires the farmer’s woods he will probably be liable
for all the damage done, though he does his best to extinguish the
flames.

In some of the States the setting of fires under certain circum-
stances is prohibited by statute. Those States which contain large
tracts of prairie land, where fires in dry times often result most
disastrously, have generally prohibited entirely the setting of fires
in such places. Where such statutes exist one who unlawfully
sets a fire so prohibited must take all the consequences. (3 IIl.,
431; 12 Mo., 120.)

12. Legal Remedies for Nuisances. There are three ways
in which a man whose property is being injured, or rights jeop-
ardized, or whose life is made miserable by the existence of some
nuisance, may proceed to get satisfaction. -He may abate the nuis-
ance himself; that is he may go personally and with strong hand
remove the nuisance, or prevent its doing further harm. He may
apply to a court of equity for an injunction to prevent the use or
continuance of the nuisance. And he may bring an action at law
for the recovery of damages resulting from the nuisance,

13. Abatement of Nuisances. It is only rarely that a man
is permitted to take the law into his own hands and to himself right
the wrongs that are done him. But when a nuisance is erected or
maintained which does him special injury, he is allowed to go and
peaceably remove it. When the nuisance is a public one, doing
injury to the public at farge, then the proper public authorities have
this right; though if a public nuisance specially injures an indi-
vidual it becomes as to him a private nuisance and he may abate
it. For example, if an obstruction is placed across a private way,
it is a private nuisance, and the owner of the way may remove it
180 MANUAL OF THE LAW.

 

at once, whether he wishes to use the way or not. If an obstruc-
tion is placed across a public way or street, it is a public nuisance,
and it is for the public authorities to remove it. But if an indi-
vidual wishirg to use the public way is thereby specially incom-
moded, then he may remove it. (56 Me., 197.) Unless, however,
he has occasion to make use of the highway, he has no right to
touch it; he must leave it to the public authorities. (12 Gray,
98.)

There are several restrictions placed upon this right to abate a
nuisance. In the first place one must not commit a breach of the
peace in order to accomplish it. Ifthe abatement is resisted the
proper method is to go to the courts for a remedy. (82 II1., 162.)
In the next place before one proceeds to such an extreme measure
as the abatement of a nuisance, he should give notice to the party
responsible for it, and request him to remove it, and should then
give him a reasonable time in which to do so, (15 Wend., 397.)
This notice and request, however, is not always essential to justify
one in abating a nuisance. If the nuisance is of serious character
and is the intentional and willful act or design of the party, or if
the safety of life and property requires an immediate remedy, then
no notice and request is required. (34 Conn., 529.) One who
abates a nuisance must do it with as little injury to property as pos-
sible. If he causes any unnecessary loss he will be liable for it.
(27 Ind., 394.) Lastly one who thus takes the law into his own
hands and abates a nuisance of his own motion, must see to it that
he keeps strictly within legal bounds. It is for him to show that
the thing abated is a nuisance, and if he can not do this he will be
liable as a trespasser from the beginning. (13 Vt., 394; 12 Mass.,
311; 25 Mo.,, 209.)

From what has been said it will be seen that this remedy by
private abatement is a dangerous one. The man who makes use
of it is handling sharp edged tools, which may get him into trouble.
Unless he is sure that the thing complained of is a nuisance, and
unless the case is one which can not admit of delay, he better not
attempt to remove it himself, but proceed by the slower and safer
methods provided by law. In one case a man had some horses
sick with a contagious disease which he kept on his own land. His
neighbors, claiming that the horses were a nuisance in the com.
munity, spreading a bad disorder among other stock, entered with-
out notice and abated the nuisance by killing the horses, The

 
NUISANCES ON THE FARM. 181

 

court held that the act was not justifiable and that the owner of
the horses might recover their value. (45 Mo., 121.)

14. Injunctions. Where a legal right is violated by an act
that amounts to a nuisance which is of a continuous or perma-
nent nature, an injunction can generally be had by applying to
a court of equity. This is a writ or mandate from the court
prohibiting the defendant from doing some act which is deemed
unjust to the complainant. A preliminary injunction is usually
first granted restraining the defendant from continuing the act
complained of until the proceeding for determining the rights of
the parties in the premises is terminated. The final or perpetual
injunction is then granted if it appears to the court proper that it
should be. Injunctions are used for preventing or restraining
many things besides the continuance of nuisances. Common
among these are the following: To stay proceedings at law; to
prevent the transfer of stocks, notes, etc., and of personal and real
property; to restrain the infringement of a patent, or a copyright,
or the pirating of a trademark; to prevent the removal of prop-
erty out of the jurisdiction of the court; to restrain the committing
of waste, etc., etc.

Injunctions will only be granted in cases where there is no ade-
quate and complete remedy at law; nor will they be granted while
the rights between the parties are undetermined, unless it appears
that serious and irreparable injury will be otherwise done.

The injunction is only to prevent or to stop the nuisance or
other wrong. It never gives damages for the injury done.

15. Action for Damages. Where money damages are sought
by way of compensation for the injury caused by a nuisance, an
action on the case, as it is called, may be brought in the name of the
person or persons injuriously affected, against the party erecting or
maintaining the nuisance. Ifthe nuisance is one which prevents
or injures the comfortable enjoyment of property, the suit must
generally be brought by the owner of the property, though if the
property is rented, and the nuisance is an injury merely to the
present enjoyment of property, like that caused by smoke, vapors,
smells, noises, etc., the suit may be brought by the tenant of the
property without proving any title in himself save that of mere
present possession. (1 East., 244.) The rule seems to be that
unless the injury is a permanent one the suit should be brought by
182 MANUAL OF THE LAW.

 

the tenant. (4 Met., 477.) But we cannot go into technicalities
here. In bringing this action facts should be set forth sufficient
to show that the act or thing complained of is in fact and in law a
nuisance. The manner in which the nuisance was created need
not be set forth, but the nuisance as it exists, and the injury pro-
duced thereby, and the liability of the defendant should be specific-
ally set up, otherwise the declaration will be insufficient. (23
Barb., 444.) In all actions for nuisances which consist of the zeg-
ligent doing of some lawful act, or the xegligent use of some
thing which is not of itself a nuisance, the negligence which is
really the gist of the action must be alleged; and where the nuis-
ance consists of the keeping of a dangerous domestic animal, it is
usually necessary to set forth in the declaration. and prove at the
trial that the owner knew of the animal’s propensities. (42 Vt.,
343-)

The amount of money awarded in an action for a nuisance must
be limited by the actwaZ damages sustained. (10 Ohio, 161.) In
some instances these will be easy to admeasure, as for instance, if
the injury complained of is the loss of a tenant the damages will be
the rental value of the premises during the time they have been
unoccupied because of the nuisance. (53 N. Y., 152.) But in
the great majority of cases the damages will be difficult to com-
pute. Nuisances so generally affect the senses merely, and are
so intangible and uncertain, that it is hard to put a money value on
the injury they occasion. For instance, what money shall be paid
to a man for having a disagreeable smell pervading his premises,
or a continual racket kept up just over his garden fence, or in fact
anything done which interferes with the pleasant enjoyment of his
property? No precise rule can be laid down for computing suck
damages. They may be so great as to entirely destroy the prop-
erty or they may be only so fanciful and frivolous as not to be
worth considering. All that can’be done in these cases is to leave
the matter to the sound discretion of a jury. It is for them to
say in view of all the facts of the case what in their best judg-
ment the plaintiff ought to receive for the annoyance and discom-
fort he has been put to, and what the defendant ought to pay for
the injury he has caused.

It is to be observed that the action for damages does not prevent
the nuisance from being continued. That is done by an injunc-
tion. A proceeding for an injunction and an action for damages
NUISANCES ON THE FARM. 183

 

may both be maintained against the same party on account of the
same nuisance, But after one suit has been finished and damages
have been awarded, if the nuisance is not abated another may be
commenced. In fact a nuisance continued is a fresh nuisance every
day that it is allowed to remain unabated, and new suits for the
damage caused by its continuance may be commenced from day to

day. (29 Barb., 291.)
CHAPTER XXI.

OF HIRING HELP. RIGHTS AND DUTIES OF
THE EMPLOYER AND THE EMPLOYEZ.

1. Importance of the Subject. 5. Articles of Apprenticeship.
2, Relation of Master and Servant. 6. Contract of Hiring.
3. Hiring Infants. 7. Implied contracts,

4. Apprentices.

1. Importance of the Subject. One of the most important
and oftentimes perplexing tasks of the farmer is the procuring and
employment of necessary farm help. Misunderstandings arise, and
much litigation has ensued because of imperfect knowledge as to
the law governing the subject,—the relation of master and servant
as it is called. In the present chapter, therefore, we shall endeavor
to set forth, as clearly as possible, the legal rights both of the
laborer and hirer, as well as the duties and liabilities of each,
though the subject being so comprehensive cannot, of course, be
exhaustively treated here.

2. Relation of Master and Servant. This relation or the
relation existing between the one who employs and the one who
is employed arises now only by contract of the parties. Indeed
the modern legal definition of an employe or servant is one who,
by reason of some contract, express or implied, becomes subject to
the authority and control of another in some trade or occupation.
In other times and other countries there were and are other meth-
ods by which one person can become entitled to the services of
another; but in this country there is now no way in which one
party can make another work for him except by the free will and
consent of the person doing the work. As the relation rests upon
contract it follows that the capacity of parties to make contracts is
an important consideration in this matter.
OF HIRING HELP, 185

 

3. Hiring Infants. A great many farm hands are persons
under the age of twenty-one years. Such persons are, in law,
infants or minors, and they cannot, except for necessaries, make a
contract which can be enforced against them. Upon grounds of
public policy persons of immature age, lacking often that experi-
ence in the sharp conflicts of business necessary to prevent theit
being imposed upon, are protected from the harm that might come
to them were they required to perform all the contracts that they
may be induced to make. Consequently all contracts made by
infants or minors, especially if not beneficial to them, are either
void as to them or may be rescinded or avoided by them any time
before or within a reasonable time after they become of age (13
Mass., 237.) Therefore if a minor hires out to work for a definite
period of time, as one year, and for a definite rate of wages, as
$15 per month, he is not obliged to carry out his agreement if he
does not want to. If he does do it his employer is bound by the
contract and will have to pay him accordingly. Or if he works
three months or six months and then leaves without just cause, he
will be entitled to his wages for the time he has worked, notwith-
standing he has broken his contract. And he can recover either
the amount of his wages at the rate he hired, or he can renounce
the contract and recover the actual value of the services that he
has rendered (2 Pick., 332); and his employer cannot deduct from
such amount any damages that he may have suffered by reason of
the breach of contract. (11 Vt., 273.) This is contrary to the
rule where the employe is of age, for in such case if he leaves
without cause before his time is up he cannot recover anything for
the services rendered, or at most can only recover the actual value
of his services over and above the damage caused to his employer
by his breach of contract, as we shall see more fully further on.

There is another consideration, more important than the fore-
going, to be borne in mind with respect to hiring minors. The
father being charged with the duty of supporting and educating
his children is entitled to their services during the period of their
minority. (23 Me., 569.) He is entitled to such reasonable and
proper labor as they can perform at home or elsewhere, and if
they are hired out to other persons he is entitled to either their
wages or the actual value of the services rendered. When, there-
fore, a person under the age of twenty-one is engaged to work
upon the farm, the farmer should not only remember that such

14
186 MANUAL OF THE LAW.

e

 

person is not bound, except in honor, to fulfill his engagement, but
that the wages he earns belong to his father, and that payment to
him may not cut off the father’s right to recover payment also,
Too great dependence should not be placed upon the minor’s
promise, for if after agreeing to work during the season he leaves
just at harvest time the farmer cannot keep back any of his wages;
and inquiry should always be made as to whom the wages are to
be paid. If the father claims the wages, they should be paid
directly to him or to the son only upon direction to that effect by
the father.

It is to be observed, however, that where the father seeks to
recover for the services of his son rendered under a contract which
the son has made, he is so far bound by the son’s contract that he
cannot recover under it unless he shows a performance of it by the
son or a legal excuse for non-performance (24 Vt., 513.) Nor
can the son recover under such a contract, if he had no right to
make it, but the father on discovering the fact may put an end to
the contract and recover the actual value of the child’s services, or
he may ratify it, in which case he must see to it that the contract
is performed or no recovery can be had.

If the minor has been emancipated, or as we commonly say, if
he has “had his time given him,” then his father loses the right to
the son’s wages, the son becomes entitled to his earnings, can sue
for them if necessary, and payment to the son entirely discharges
the debt. (6 Cushing, 458.) This emancipation may be brought
about by a written instrument, or by a verbal agreement, or by the
conduct of the parties. If the father simply says to the child
“you may go and hire out and have the wages you earn,” that is
sufficient authority to enable the child to make a contract and
receive his pay therefor (39 Conn., 270); and such authority once
given cannot be withdrawn so as to injure the person who has
hired the child. (74 Pa. St. 470.) But if the child falsely rep-
resents himself to be emancipated, as where he tells his employer
that his father has given him the right to his wages, that will not
affect the father’s rights. The fraud of the son does not estop the
father from collecting the son’s earnings. (32 Vt., 780.)

If the father casts the child off and leaves him to shift for him-
self, that works his emancipation and gives him the right to his
earnings. The father, by neglecting to discharge the natural
duties of a parent, loses the right to his child’s earnings, and the
OF HIRING HELP. 187

 

courts are liberal in such cases in granting to such children the
right to their own earnings, thus encouraging them to earn an
honest living for themselves. (Schouler on Domestic Relations,
p- 370.) Or if the parent becomes unable, by reason of poverty,
to provide for the child, he then loses the right to the child’s earn-
ings (15 N. H., 490); also if the parent absconds to parts unknown
it has the same effect. (2 Met., 92.) As has been stated, if the
parent authorizes the child to receive his wages, payment to the
child is then legal, and such authority may be implied from cir-
cumstances. (10 Barb., 300.) American courts are inclined to
favor such arrangements between father and son, as they accord
with the spirit of our free institutions. A New York Court, fol-
lowing a Massachusetts decision, held that if a son goes out and
contracts his services on his own account with his father’s knowl-
edge and without objection from him, a payment to the son cuts
off the father’s claim. (10 Barb., 300; 2 Pick., 202.)

There are statutes in some of the States providing that the
wages may be paid to the minor unless the father, within a certain
time after the hiring gives notice to the employer that he claims
the son’s wages. The N. Y. statute requires that such notice be
given within thirty days,—otherwise the father loses his right.
The reader can examine for himself the provisions of the statutes
of his particular State on this point. If there is no statute then
what is above laid down will hold true. In any event it will be
safest for all parents to give prompt notice to employers of claims
they may have to their minor children’s wages, and it will be safest
for all employers to ascertain from the parents of such minors as
they employ how and to whom the wages are to be paid. That
will avoid all difficulty.

Tke marriage of a minor with the consent of the parent works
his emancipation, and entitles him to his wages, because, as it 1s
said, he needs his earnings to support his family. But if he mar-
ries without the parental consent no such legal result follows,
though it would seem that the alleged reason is equally applicable,
for his family is equally in need of support. A court in Maine,
however, reasoned otherwise and gave the erring young Benedict’s
wages to his father, leaving the poor wife without a penny. (24
Me., 531.)

If a minor’s father is dead the mother is entitled to his services
or wages during the time that she supports him. It is not neces-
188 MANUAL OF THE LAW.

 

sary that she should afford him his entire support. If she afford
him a home to which he may go when he pleases and discharges
her natural parental duties toward him to the best of her ability,
that will entitle her to his earnings. (37 Conn., 435.)

A step-father, not being bound to support his wife’s children
by a former husband, is not entitled to their custody, nor to their
services, nor wages. (14 Pick., 510.)

The rules above laid down apply to adopted children the same
as to natural children, provided that they have been adopted in
conformity to the provisions of the law. (25 Ga., 612.)

The mother of an illegitimate child is entitled to its earnings if
she supports it, but the putative father is not. (15 Barb., 247.)

It should be remarked before leaving this subject that if a child
runs away from his parents and is taken into service the father can
not afterwards recover of the employer for such service without
allowing a reasonable and proper deduction for the support of the
child during the time he was so employed. (20 N. H., 388.)

4, Apprentices. An apprentice is a person bound to another
for a certain time to learn a certain trade or business. The rela-
tion is not as common upon farms and in agricultural communities
as in the mechanical trades, but it is equally applicable to any
legitimate employment, and is a matter of considerable import.
ance. In England, after the time of Queen Elizabeth, it was nec-
essary for every artisan to have served an’ apprenticeship of seven
years, otherwise he was not allowed to follow his trade. The law
there requiring this, though for the professed purpose of prevent-
ing injury to the public from the employment of quacks and
unskilled artisans, was really enacted in the interests of certain
guilds and trades unions which had existed there for centuries. In
America there has never been any restriction of this sort placed on
labor, everybody being left free to follow any trade or occupation
he pleases, whether he has served an apprenticeship in it or not.
Experience has shown that it is best to open wide the door for the
free exercise of inventive genius, to allow every one to do as best
he can, leaving it for the public to decide by its bestowal of pat-
ronage whether or not the individual is worthy. The system of
apprenticeship is therefore much less employed here than it for-
merly was in England. But the right of parents and guardians to
“bind out” their minor children is fully recognized here, and in
most, if not all the States, there are statutes regulating the matter.
ON HIRING HELP. 189

 

In determining any question relating to this matter, reference
should always be had to the statutes of the State in which the
question arises, and the provisions of such statutes should be strictly
followed, especially in drawing the articles of apprenticeship, other-
wise the contract may be void or voidable by the apprentice at any
time. The minor or person being apprenticed must consent to the
arrangement, and the consent must appear in the articles of appren-
ticeship; though under the statutes of many States minors who
are paupers may be apprenticed without their assent by the proper
authorities. (32 Me., 299.)

Any person, who is capable of making a binding contract and
of carrying on a trade or business, can take an apprentice; and
any person who if a minor is willing to unite with his parent or
guardian in entering into articles of apprenticeship, or if of age
and otherwise competent is willing to enter into such articles on
his own account, can become an apprentice. At common law an
infant can bind himself as an apprentice, it being regarded as for
his benefit, but this cannot now be done because of the liability of
the abuse of such power if it were granted. (8 Johns, 328.)

When a father or guardian binds out a minor, such father or
guardian becomes responsible for the performance of the contract
by such minor; but he will be relieved if the master is cruel and
drives the apprentice away, or if he changes the trade which the
minor was apprenticed to learn. (4 Mass., 480.)

The contract of apprenticeship must be in writing, and it con-
tinues usually until the apprentice, if a boy, becomes of age, or
if a girl, until she is eighteen.

It is the duty of the master to instruct the apprentice in all the
knowledge of the art, craft, or business which he has undertaken
to teach him; to watch over the conduct and morals of the appren-
tice, giving him good advice and setting him good example, to
treat the apprentice kindly and not put him to menial or other
employments unconnected with the trade he is to learn. It is said
he can moderately correct the apprentice for negligence or misbe-
havior (1 Ashm, Pa., 267), but here he had better let his modera-
tion be known to all men, and especially to the apprentice. He
must perform all the covenants entered into by him in the articles
of apprenticeship, and he can not dismiss the apprentice except by
consent of all parties interested (12 Pick., 110), or else by the
sanction of a proper court. (8 Conn., 14.) Nor can he remove
190 MANUAL OF THE LAW.

 

the apprentice out of the State in which he was apprenticed unless
the removal was provided for in the articles, or can be implied
from the nature of the employment. (13 Met., 80.)

It is the duty of the apprentice to serve the master and obey all
his lawful and proper commands, to protect and promote the
masicr’s interests, to endeavor to well learn his trade or business,
to keep all the covenants entered into by him in the articles of
apprenticeship, and not to leave the master’s service during the
term of the apprenticeship.

The master is entitled to all the earnings of the apprentice, and
to recover the same from others for whom the apprentice works
during the term, just as a father can recover for his son’s services,
and payment to the apprentice will not bar the master’s right of
action, unless it can be shown that the master has abandoned his
rights, (107 Mass., 419.) Of course if the master consents to
the apprentice’s working for others and receiving his pay, that
alters this rule. Where the master consented that the apprentice
should enlist, such consent entitled ‘the apprentice to his bounty
and wages (39 Vt., 382), and asimilar ruling was made where
the master consented to the apprentice’s going on a sea voyage.
(12 Pick., 115.) The apprentice is also entitled to pay for extraor-
dinary services, when promised by the master, or even without
such promise under certain circumstances. (1 Whart. Pa., 113.)

Upon the death of the master, the apprenticeship, being a per-
sonal trust, is dissolved, and the master’s estate is liable for a return
of a proportionate amount of the money paid for the apprentice’s
instruction, if the fee covered the whole term, And the same is
true where the apprenticeship is terminated for any cause for
which the master is at fault. (18 M.R., 759.) But now-a-days
it is not common for the master to receive a fee for the appren-
tice’s instruction, the services of the apprentice being usually
deemed sufficient.

The following is a common form of articles of apprenticeship,
but, as has been observed, before making use of this or any form
the Statutes of the State where it is to be used should be examined
“« ene that it conforms to them.

o. Articles of Apprenticeship :—

THIs AGREEMENT WITNESSETH: That A B. of .——~, does
by these presents bind out his (or, if the father is not lving, her) son ¢, B., and
that the said C. B. does hereby bind himself out as an apprentice to K ¥ of
— , to learn the art (business, or trade) of (state what.)

 

 

 

 
ON HIRING HELP. 191

 

 

That the said C. B. is at the date hereof aged years.

That said C. B. shall dwell with and serve said E. F. as such apprentice from
the date hereof till day of ——_—__—_,

That during said term said apprentice shall faithfully serve his said master, keep
his secrets, and at all times readily obey his lawful commands. He shall do no
damage to his master, nor wilfully suffer any to be done by others, He shall at all
times diligently promote his master’s interests, shall not absent himself from the
service of his master, but in all things shall demean and conduct himself as a good
and faithful apprentice ought.

That the said E. F., in consideration thereof, does hereby covenant, promise, and
agree to instruct and teach said apprentice, or cause him to be instructed and
taught in all the ways of the art (business, or trade, etc.,) aforesaid to the best
of his ability and means; to instruct and teach said apprentice, or cause him to be
instructed and taught to read, write, and cipher, to find and provide said appren-
tice good and sufficient food, clothing, and lodging, and other necessaries during
said term, and at the expiration thereof to give him dollars (clothes, etc., as
the parties may agree).

In witness whereof the parties hereto have here set their hands and seals this

—— day of ,» A.D, —.
a
—— &

{£3}

——~

 

 

 

 

~e
———— {us}
a

6. Contracts of Hiring. The relation of master and servant
always arises out of contract, but it is not always necessary that
the contract be in express terms, nor is it necessary that it be in
writing unless the hiring is for more than one year. We see
therefore that contracts of hiring may be implied or they may be
express, and we also see that some of them must be in writing.

7. Implied Contracts. Where services have been rendered
by one party for another, and there has been no agreement as to
the price to be paid for them, the law will imply a promise on the
part of the employer to pay the current rate of wages for that class
of service. If the services are of such a kind that no current rate
of wages exists, then it will be implied that the contract was for
the actual value of the services, and the party doing the work will
be entitled to what it was reasonably worth in view of all the cir-
cumstances of the case. (Wright, Ohio, 242.)

Where a person is engaged to work, and no term of service is
agreed upon, no time at which the service is to terminate is agreed
192 MANUAL OF THE LAW.

 

to, then either party is at liberty to put an end to the relation at
any time, and the master will be: bound to pay what the services
amount to at the rate agreed upon, or if no rate was agreed upon
he must pay what the services were reasonably worth during the
time they were rendered, without reference to any dafhage he may
have been put to by reason of the servants’ leaving. (5 Bing., 37.)

Where services are rendered without there being any under-
standing at all concerning them, but under such circumstances as
lead the laborer to expect pay for them, it is for a jury to say—in
case of dispute—whether the person for whom the services were
rendered expected, or ought to have expected to pay for them,
and if so the laborer is entitled to the actual value of the services.
(41 Mo., 441; 17 Wall., 123.) Ifa person for whom services are
rendered has reason to believe that the person rendering the ser-
vices expects pay therefor, and he allows him to continue laboring
under that expectation, the law will imply a promise to pay what
the services are reasonably worth. One can not get out of paying
for such labor by saying that he never agreed to pay for it. He
should have told the laborer that he did not expect or intend to
pay.

But it must not be understood from this that a person can recover
pay for services that he obtrudes upon another. There must be
either a request for the services, or a promise to pay for them, or
something from which the law will imply either a request or a
promise. For example: If without being requested, I assist my
neighbor in saving his goods from a fire, I cannot afterwards
charge him for the service (20 Johns., 28); nor if I nail boards on
his fence to prevent his cattle from escaping, or having the privi-
lege of getting water from his well I put a new sweep and bucket
in it,can I recover pay therefor, no matter how necessary the
work. (12 Mass.,65.) Nor can I recover pay for work for which
I had no intention of charging nor expectation of receiving pay
for, not even though I hoped that the man for whom I labored
would leave me something in his will, or give me some other ben-
efit. Though if there was an agreement to leave me a legacy and
that agreement was not fulfilled, the law will imply a promise to
pay, and I can recover the actual value of my service out of the
man’s estate. (13 Johns., 379; 14 La., 581.)

There is one exception to the rule that no pay can be recovered
for services that are not requested, and that is in the case of lost
UN HIRING HELP. 193

 

goods. The finder of lost property, who cares for and keeps the
same until the owner reclaims it, is entitled to reasonable pay for
the labor he has expended in so doing. (106 Mass., 286.) There
are statutes upon this subject in most of the States.

If one comfels another to work for him, or induces him to do so .
by fraud, he becomes ‘liable to pay what the services are reason-
ably worth. (3 Yeates, 250.)

Where services are rendered for near relatives, as where one
works for his father, or brother, or grandfather, the law will not
imply a promise to pay for them; so that if there is no express
promise or agreement, no recovery can be had therefor (44 N. H.,
293); but the presumption that such services are gratuitous does
not apply where the parties do not live together in the same fam-
ily. (33 Ala. 501.) It may be remarked in passing that a simi-
lar rule applies where board is furnished to near relatives. Thus
if a son boards with his father or father-in-law, or vice versa, in
the absense of an express understanding or agreement that it is to be
paid for, there is no liability.
CHAPTER XXII.

THE MASTERS LIABILITY TO HIS SERVANTS

1. The Employer’s Duties. 4. Injuries from Defective Buildings,

2. Injuries Caused by Fellow-servants. Etc.

3. Injuries by Defective Machinery. 5. Risks not Incident to the Employ-
ment.

Much litigation has taken place over this subject.. Employes
are constantly bringing suit against their employers for injuries
received in the employment, and while many of the suits are ill-
advised, and hence fruitless, there are many cases in which employ-
ers have been compelled to pay roundly for injuries resulting from
their negligence and failure of duty toward those in their employ.

While the decisions of the courts are not harmonious upon this
subject, the following may be laid down as a safe doctrine for the
guidance of those interested:

1. The Employer’s Duties. A person who hires others to
work for him is under obligation to discharge faithfully the duties
resting upon him as master. If he fails to perform these duties,
or performs them negligently, and such failure or negligence causes
injury to an employe, he is liable for the damage done. He is
not liable for the injuries which one servant receives from another,
as will be explained, but his duties as master he must personally
perform or must be responsible for. If he delegates them to some
one else, if he hires a man to perform them for him, he still
remains responsible for their faithful performance, Tis distinc-
tion must be kept clearly in view. The master’s obligations are:

1, To exercise proper care in the employment and retention of
servants,
MASTER'S LIABILIfY TO HIS SERVANTS. 195

 

2. To exercise proper care in purchasing and retaining imple-
ments and machinery.

3. To exercise proper care in putting and keeping the premises
in safe and proper condition.

4. To exercise proper care not to expose the servant to risks not
incident to the employment for which he hired.

To illustrate the first of these general duties, suppose that a
farmer employs a young boy, unskilled in farm work and espec-
ially in the management of horses, and sets him to work witha
spirited team. Through the negligence or inability of the boy
the team runs away and injures another employe. The farmer
will be liable for the injury, for although the boy was negligent,
it is still the farmer’s failure to exercise care in hiring the boy for
the work that really caused the injury. Had such care been
exercised and a competent man been hired to drive the team, the
employer would not be liable, even though the same accident were
to happen. Having exercised proper care in this direction the
employer is relieved. If, notwithstanding such care, a man is
hired who becomes negligent and careless, and injury results to
another workman, there is no responsibility on the part of the
employer, unless he failed to exercise care in retaining the man,

2. Injuries Caused by Fellow-servants. One of the risks
which a man voluntarily assumes when he enters any employment
is that due to the carelessness of his fellow-workmen. If he is
injured because of any negligence on the part of a fellow-work-
man he has no claim therefor upon his employer unless the
employer is guilty of negligence in hiring or keeping the negli-
gent workman, or unless some one to whom the employer has
delegated his duties is negligent in this regard. This may be
illustrated by the case of a farmer who should hire two wood-
choppers to chop in his woods. He exercises proper care to ascer-

- tain that they are both competent to do such work, and sets them
to work. One of them negligently falls a tree upon the other and
injures him, or negligently injures him in some other way. The
farmer is not liable.

3. Injuries by Defective Machinery. The second obli-
gation of the employer to his employes is that of exercising
proper care in the purchase and retention of machinery to be used
in his employment. If an employer purchases machinery which
196 MANUAL OF THE LAW.

 

he knows is defective, or if he keeps and continues to use machinery
after it has become defective and is not reasonably fit for use, and
an employe is thereby injured, the employer will be liable for the
damage caused. To illustrate: Suppose a farmer has an old and
rickety sawing machine which he uses winters to saw up his stove
wood. He continues to use it after it has become unsafe and unfit
for use. The saw, perchance, has become rusty and full of flaws,
and, while in high motion, it flies to pieces and cuts off a work-
man’s arm or leg. The farmer must pay for the damage done.

The master’s duty to keep his ‘machinery in proper condition
does not require that he keep it in the best possible condition or
that he purchase only the most approved or most expensive
machinery. His duty is complied with if he procures such
machinery and keeps it in such a condition as an ordinarily prudent
and careful man would under the circumstances. He can use new
or old machinery, latest improved or oldest fashioned, without being
liable for injuries resulting therefrom to his servants, unless there
are defects in them which are not apparent to his servants. If
there are latent defects which he knows about or which proper
care on his part Would disclose he might be liable if he continued
to use them, when if the defects were open and apparent he might
not be liable. The servant is required to use due care to prevent
injury to himself, for if he contributes toward the negligence
which causes his injury he cannot recover, though the master may
have been also negligent. If he is given a’‘machine to work with
that has a secret flaw in it, the very fact that the defect is latent
and unknown to him may prevent his using that care necessary to
avoid injury. In other words the servant must see defects which
are open and notorious and avoid danger from them, the rule being
that the employer is not liable to the servants for injuries from
defects known to the servants, unless he has been notified of the
defects and has failed to remedy them.

4. Injuries from Defective Buildings, Ete. The third
obligation of the employer to his workmen is that of exercising
proper care in securing and keeping in a safe condition the premi-
ses in which the employment is carried on. ‘To illustrate this,
suppose that a farmer allows the sills under his barn to get so weak
and rotten that they break and the building falls and maims a
workman, or suppose that a miller allows the beams and supports
under his mill to become so defective as that the mill falls and
MASTER'S LIABILITY TO HIS SERVANTS. 197

 

injures an operative, in each case the employer will be liable. (24
N. Y., 410.) But here again, as in the case of machinery, if the
defect is one which is open and apparent to the workman, and the
injury is one which the exercise of care on his part would prevent,
there can be no recovery. In all of these cases the employer does
not warrant that his machinery or premises shall be absolutely
safe, nor does he insure the servant’s safety. His duty is to use
proper care to see that his premises and machinery are reasonably
fit and safe. It is for the jury to determine whether he has
used proper care. If he has and notwithstanding it an injury has
occurred he is not liable. Nor is he liable if the injury might have
been prevented by the exercise of care on the servant’s part. The
fact however that the premises are known by the servant to be
defective, does not necessarily require him to leave the service.
If the defects do not indicate immediate danger, and he calls the
employer’s attention to them, he may continue at work, and if the
employer neglects to remedy the defects and an accident happens,
he will be responsible for it. (106 Mass., 282.) But if the defects
are glaring and indicate immediate danger, the workman should
refuse to continue the work, and if he does continue under such
circumstances he takes his chances on being hurt. (110 Mass.,
240. )

5. Risks not Incident to the Employment. The fourth
and last duty of the master to his men is that of shielding them
from risks not incident to the employment for which they hired.
When a man hires out in any particular business he voluntarily
assumes the ordinary risks to which that business exposes him. A
sailor takes the chances of wind and wave,a miner the risk of
being choked by fire damp, a builder the risk of falling from the
scaffold, and a painter the chances of getting the painter’s colic.
The contract of hiring is presumed to have been made with refer-
ence to the ordinary danger of the work to be done, and the com-
pensation to have been arranged accordingly. If an injury result-
ing from one of these risks is sustained by the servant, it can only
be regarded as an accident, a mere casualty, ard the misfortune
must rest on him. (28 Vt. 59.) But the employe does not
undertake to run the risks incident to other employments than that
for which he hired, and if he is put to other employment the
master becomes responsible for the injuries he receives without
faalt on his part from the ordinary risks and dangers of that
198 MANUAL OF THE LAW.

 

employment. To illustrate: Suppose a farmer hires a man as an
ordinary farm laborer. He is afterwards put to work in a saw
mill which the farmer also runs, and is injured by one of the
ordinary dangers incident to the latter employment. The farmer
is liable for the damages caused by the injury. It is true the man
could have refused to work in the mill, but his primary duty was
obedience and he undertook no additional risks by obeyiag the
master’s orders. ,
CHAPTER XXIII.

THE EMPLOYERS LIABILITY FOR THE ACTS
OF HIS EMPLOYES.

1. Statement of the Rule.

There is an old maxim of the law—Qut facit per alium facit
per se,— or, “He who acts by another acts himself,” which is the
key-note of the master’s liability for the acts of his employes.
The acts of the servant, in the scope and line of his employment,
are always regarded in law as the acts of the master himself, and
it is for this reason that employers are so often called upon to
respond in damages for injuries resulting from carelessness, negli-
gence, or willfulness on the part of their employes.

1. Statement of the Rule. The employer is responsible not
only for those acts which he actually directs his employes to per-
form, but for everything that they do in carrying on his business.
it matters not whether the acts are performed intentionally or
unintentionally on the part of the servant, if injury results from
them to third persons who are themselves blameless, the master is
responsible. But if the employe, while in the general employ of
the master, steps aside and does any act outside of his employment,
then of course the master is not liable. So far as that act is con-
cerned he is not in his master’s employ. For example: Suppose
the farmer sends his man with a team to mill and on the way the
man carelessly runs over a little child, the master will be liable;
but if while waiting for his grist the man takes one of the horses
and runs a horse race with the miller’s son, the farmer will not be
liable for any injury that may result therefrom, If on the way
home, however, the man deviates from the regular way and takes
200 MANUAL OF THE LAW.

 

a somewhat circuitous route in order to call on his sweetheart and
carelessly runs over a child, the master will be liable. He is still
on the master’s business sufficiently to render the master liable.

_ While it matters not to the master’s liability whether the wrong-
ful act of the servant be performed by him intentionally or unin-
tentionally, yet the statement should be modified by the remark
that character of the intent will frequently determine the question
of liability. For instance: Ifthe servant intends by the aci to
further some object of his own, as to gratify a personal spite, and
does not intend to promote his master’s interests, then the master
is not liable. To illustrate: Suppose the man on the way to the
mill viciously and intentionally runs into a cow straying in the
road, to gratify a personal spite which he has against the owner
of the cow, then in accordance with the above principle the
master is not responsible. On the other hand if the willful act
in the scope of the servant’s employment is done with the intention
on his part of furthering his master’s business, then the master is
liable. To illustrate: Suppose the man, as he approaches the
mill, willfully runs into the wagon of another farmer for the
purpose of getting ahead with his grist and so to promote his
master’s interests, then according to the above principle the master
will be liable. (See Cooley on Torts, pp. 531-541.) It matters not
whether the effect of the act is really to promote the master’s inter-
ests or not, if the employe thinks it will and does it under that belief,
then the master is responsible for it. But if the act is not within
the scope of the servant’s employment, then, as has been stated, it
matters not what the intention or motive is, it is then not the
master’s act and he is not responsible for it. For example: If on
the way home from the mill the man meets some boys whom he
mistrusts have been foraging in his master’s orchard, and thinking
that it will promote his master’s interests he gives one of them so
sincere a flogging as to seriously injure him, the master can not be
held responsible for that act, unless he directed it, for it was clearly
outside of the servant’s employment. Of course if the servant is
given any discretionary powers, as indeed most farm hands are,
and in the exercise of those powers injury is done to third persons,
either intentionally or unintentionally, the master is liable. For
instance, if the farmer goes away from home, leaving his farm
in charge of his hired man, he will be responsible for everything
the man does in the general conduct of the place during his
EMPLOYER'S LIABILITY. 201

 

absence. The fact of his placing the man in such a position of
trust justly renders him liable for the man’s acts in carrying out
the trust. Consequently if the man, through lack of judgment or
ability, does an act which injures a third person the farmer will be
liable. Nay, more, even if the man while under the influence of
high temper or uncontrollable passion, steps beyond the line of his
authority and inflicts an unjustifiable injury upon another, the
farmer may be required to respond in damages. (69 N. Y., 129;
169.)

It is thus seen that the wrongful act may be in direct disobedi-
ence of the master’s orders and still the master be held liable. If
the act is within the scope of the employment, and is committed in
the exercise of a discretion which has been given to the employe,
that is sufficient to make the master responsible. In other words,
the master must not only give proper directions, but he must see
to it that they are carried out. (14 How., 468; 46 N. Y., 23.)
The illustrations made use of in the case of negligent fires (page
177), aptly illustrate this principle. Another familiar illustration
would be the case of a farmer who directs his employe to drive
trespassing cattle out of his fields, but expressly forbids him from
worrying or injuring them, and the employe, directly disobeying
the master, goes after them with a savage dog, or chases them
with sticks or stones, and makes them jump a deep ditch by
which means one of them breaks its legs. It needs no ghost to
tell us that the master would be responsible. (See 16 IIL, 313;
49 N. Y., 255; 28 Mich., 496; 106 Mass., 105; 50 Mo., 104, for
cases in point.)

It should be remarked before leaving this subject that these
rules of liability apply the same where the injurious act is com-
mitted by the master’s son, if he works for his father, or by his
wife if she has charge of the premises

15
CHAPTER XXIV.

TAXATION.

1. Definition of Taxes. 5. Tax Deeds.
2. Power to Tax Limited. 6. Tax Sales.
3. Is the Tax Valid. 7. Land Sharks and Tax Titles,

4. If Paid Taxes Cannot be Recovered.

Every man who owns property has to perform the not ove.
pleasant duty of paying taxes. Government is a necessity of civil-
ization, and money is necessary to enable government to exist and
perform its functions. The power of government therefore to
tax the property or individuals within its jurisdiction is unques-
tioned, resting as it does upon the highest law, that of absolute
necessity. In raising its revenues the government endeavors to
secure justice and equality, and to place a burden upon the indi-
vidual as near as may be in proportion to the benefit he receives.
As a person owning much property receives more benefit from the
government in the way of protection for his property than the
person owning but little, it is right that he should pay more
toward the support of government. For this reason taxes are
usually assessed, not against the individuals, but against the prop-
erty ina State. In spreading taxes upon property the design is to
distribute them equally upon all property of whatever kind within
the taxing district. Of course there are a few exemptions, includ-
ing the property of religious and educational institutions and a few
household chattels and goods covering the bare necessities of life.
But aside from these limited exemptions the law provides for the
equal assessment of all property, real and personal, lands, chattels,
securities, and investments, to the end that every thing of value
may contribute its proportionate share toward the burden of its
TAXATION. 203

 

own protection. But much personal property—like stocks, bonds,
notes, and other similar securities—is of such an intangible nature
that in spite of the law it often escapes taxation. The searching
eye of the most vigilant assessor fails often to discover its where-
abouts, so that as a matter of fact in this country the principal part
of the burden of supporting government falls upon the real estate,
or upon the owners of the land. Land is tangible, immovable,
and impossible of concealment, while much personal property can
be easily hid away. Money, for instance, rarely gets assessed, and
secured debts, like mortgages, generally escape. Indeed, except in
the cities where the expense of local government is high, there is
not much effort made to get them represented upon the assessment
roll. And where effort is made to do so, where the records are
examined for the purpose of finding who owns mortgages, it is
not difficult to evade the assessor’s eye. For instance a person
taking a mortgage can have it made to some friend in whom he
has confidence living in another State or country, who gives him
an assignment of it. He puts the mortgage on record, but does
not record the assignment. The record then shows only a mort-
gage made to a person in another State beyond the tax collector’s
reach. There are other devices for avoiding taxation which might
be mentioned. All of them involve a certain degree of dishon-
esty, and a shirking of the plain duties of citizenship. In this
country taxes are comparatively light, and they are generally
levied with justice and equality. Patriotism requires their prompt
and willing payment. When they become oppressive or unjust
there is generally means of legally avoiding them as we shall see.

1. Definition of Taxes. Taxes are the enforced proportional
contribution which the State requires of persons, or levies upon
property for the support of the government and for the public
needs, That government must have means to enable it to dis-
charge its manifold functions is obvious; that the discharge of
these manifold functions and duties is necessary to the protection
and well-being of citizens is also obvious, hence as we have seen
the power which is given to government to enforce payment of
taxes is justified by the necessity which compels it.

2. Power to Tax Limited. While this power of govern-
ment is great and imperative it is not arbitrary, but rests upon
fixed principles of justice. These principles may be enumerated
as follows: :
204 MANUAL OF THE LAW.

 

1. The tax must be raised for a public purpose, and not for a
private purpose. To illustrate: Suppose an industrious farmer
meets with misfortune by having his house burn down, and the
township with generous sympathy votes to repay him his loss.
The amount is included in the tax to be raised that year and is
spread upon the roll. The effect is to vitiate the entire tax for
that year. It is a defect sufficient to warrant the restraining of
the collection of the tax; or if the tax is not paid on any particular
piece of land, and it is sold by the State, the tax deed will be void.

2. The tax must be levied upon a principle of equality and uni-
formity. There must be some systematic apportionment of the.
tax among those who receive the benefits to pay for which the tax
is raised. To illustrate: A State tax must be apportioned to all
the property and persons throughout the State, a county tax
throughout the county, and a town tax throughout the town, To
secure this uniformity two things are essential. 1. In each taxing
district taxation must be confined to objects within its jurisdiction
and limits. 2. There must be a uniformity in the manner of
assessment,

The legislative power in each State, to secure uniformity and
equality in taxation, has prescribed a way in which taxes shall be
raised. ‘To determine whether any particular tax is properly lev-
ied, so as to impose a legal obligation upon the tax payer to pay it,
a comparison must be made between the method pursued in levy-
ing the tax and the method prescribed by law. If any require-
ment of the statute intended for the benefit of the tax payer has
been omitted, the tax is void and its payment cannot be enforced.

3. Is the Tax Valid. To answer this we must not only
know that the laws authorizing the tax are valid but that they
have been faithfully carried out by the taxing officers. Tax laws
must embody or be in accordance with the general principles
above laid down, and they must conform to any other limitations
that may be contained in the constitution of the particvlar State.
If they do not they are not good laws, and a tax levied under them
is not valid. But suppose that the tax laws are all right, it is then
necessary to see that in the case of the particular tax in question
they have been properly executed. If it is found that there has
been any substantial variation from the method they lay down,
and especially if any requirement obviously intended for the bene-
fit of the tax payer has been omitted, the tax, as we have seen, is
TAXATION. 205

 

void. For example: The tax laws generally require that the
assessment rolls, as prepared by the supervisor or assessor, shall be
placed open to the inspection of the tax payers, in order that an
opportunity for complaining of grievances may be had before the
assessment is finally fixed. This is a requirement obviously for
the tax payer’s benefit, and if it be omitted the tax will be void.
Again the amount to be raised in any given taxing district for
certain purposes, as bridges, roads, etc., is usually limited to a
certain amount, If an amount in excess of the limitation is spread
upon the rolls, the tax is void.

In general, it may be said, that if any portion of the amount
claimed for taxes is illegal, whether by being for an unauthor-
ized purpose or for an amount in excess of that allowed by law,
the whole tax is thereby rendered void. To illustrate: The stat-
utes of Michigan provide that the electors of a township may vote
a tax not exceeding in any year one per cent of the assessed value
of the taxable property in the town, for the purpose of building
atown hall. Suppose they disregard this limitation and vote an
amount, in excess of the one per cent, which is included in the
general tax. The effect will be to invalidate the entire tax. (40
Mich., 627.)

4, If Paid, Taxes Cannot be Recovered. As a matter of
fact, owing to the many statutory requirements to insure just tax-
ation and to the inexperience and inaccuracy of taxing officers, a
large proportion of the taxes levied in this country are invalid.
But as the tax payer generally receives substantial benefits from
them, or from most of them, it is the nearly universal custon to
pay them without question or protest. Indeed the expense and
trouble of discovering the defects and proving their existence is in
general greater than any one individual’s tax will warrant. Hence
unless there is some serious injustice or hardship in the tax, or
some other special reason for avoiding payment of it, it is usually
and quite properly paid without complaint. When it is so paid
it cannot generally be recovered back, unless paid under protest.
If people illegally taxed acquiesce and pay their taxes they can
not afterward be heard to complain, but if they refuse the courts
have no power to compel them. (17 Mich., 218; qo Id., 628.)
This is the general rule. In some of the States there is provision
made by statute for paying the tax under protest and then recov-
ering back if it proves illegal, in an action against the township.
206 MANUAL OF THE LAW.

 

5. Tax Deeds. The power of taxation necessarily implies the
power to collect the tax. If the one did not include the other the
State would be left without certain means of getting its revenues.
If the tax is not voluntarily paid, the law can and generally does
authorize the subject on which the tax is levied to be sold for its
payment. Thus land is sold for non-payment of taxes, and the
conveyance by which it is sold is called a tax deed. This instru-
ment, executed by the proper official in the name of the State,
undertakes or purports to convey the title to the land described in
it to the purchaser at a tax sale. But it is not a warranty deed;
its recitals bind no one, and its validity depends upon the regular-
ity of the proceedings prior to it. It does not even create a pre-
sumption that the facts upon which it is based are true, nor does it
estop the former owner from setting up any defense he may have.
The purchaser takes his chances of getting title, and upon him
rests the burden of proof. When, however, it is shown that the
public officials have properly performed every duty imposed upon
them in the premises, and that every condition essential to its
validity has been complied with, the tax deed becomes conclusive
evidence of title in the grantee or purchaser, according to the
extent and purport of the deed. (Blackwell on Tax Titles, 430.)
We see from this that if the tax, for the non-payment of which
the land is sold, is invalid for any of the reasons hereinbefore
stated, the tax deed will be of no value.

6. Tax Sales. These are sales of lands for the non-payment
of the taxes assessed upon them. The power to sell does not
attach till every other means of collecting’ the tax is exhausted.
All the proceedings prior to the sale—the assessment, levy, attempt
of collection, and everything connected with them-—must have
been regular. The lands must have been duly entered upon the
tax roll by plain and legal description; they must have been duly
assessed according to law, and the custom of assessing them delib-
erately at one-half or one-third their cash value when the statutes
require them to be assessed at their full cash value, is sufficient to
cast grave doubts upon the validity of the sale. The assessment
roll must have been placed in the hands of the proper officer with
authority to collect the tax; the tax must have been demanded, all
means for collecting it exhausted, the list of delinquent lands prop-
erly returned, a judgment rendered (when judicial proceedings are
necessary), the necessary warrant or authority delivered to the
TAXATION. 207

 

officers entrusted with the power of sale, and the sale advertised in
due form of law. The sale must be at public auction, at the exact
time and place fixed by law and mentioned in the notice, to the
highest bidder (which in many of the States means the person
who will pay the tax and expenses due on the tract offered for the
least quantity of it), and the sale must be for cash. . The statutes
authorizing the sale must be closely followed. We, of course,
cannot give even an outline of these statutes. Each reader must,
as he has occasion, look up the statutes of his particular State him-
self,

7. Land Sharks and Tax Titles. In almost every com-
munity there may be found a few individuals belonging to a
peculiar class of human cattle popularly called “land sharks.”
They subserve a not unuseful purpose as affording a means for
venting the superfluous spleen of the neighborhood and as being
invulnerable objects for the imprecations, maledictions and general
abuse of the public at large. Their special delight is the worthless
tax title, and their traditional victim the defenseless widow. I do
not think they deserve all the abuse they receive; but it does not
seem todothem any harm. They aid the government in collecting
its taxes, because when people neglect or refuse to pay the taxes
assessed upon their lands they are always ready and willing to pay
the taxes for them by buying the lands at the tax sale. With the
tax title they thus acquire they proceed to harrass the owner, and
they invariably succeed in getting their money back with a goodly
allowance for “interest and expenses.” People are thus rightfully
afraid of them, and it is safe to say that were it not for their pres-
ence everywhere there would be more taxes unpaid than there is.

Let us suppose, what often happens, that owing to some mis-
fortune or neglect, a farmer or other landowner finds one of these
“sharks ” in possession, for an insignificant sum, of a tax deed to
his farm. What, under the circumstances, and in the light of
what is above set forth, is it best to do?

The tax deed gives its possessor the right to commence an action
of ejectment against the party in possession of the land. In that
action the validity of the tax deed is determined. If the deed is
found to be valid its owner will be given possession of the land.
But as the chances are decidedly against such a result the holder
of the deed will rarely commence suit. He is generally content to
hold the deed without putting it to any valid test, hoping that
208 MANUAL OF THE LAW.

 

sometime before his deed outlaws the owner of the land will find
it necessary to buy his title in order to perfect his own. As the
existence of the tax deed is, to say the least, a flaw in or cloud
upon the title of the land, which in case of a sale of the land would
be objectionable to the purchaser, it is, of course, desirable to buy
it if possible. If the holder of the tax title will take anything
reasonable for it, that is if he will take what it cost him, with
interest and a fair amount for his trouble, it will be best to buy it.
If the tax title is obviously invalid it will still be policy to buy it if
can be bought at a reasonable figure, for it would cost considerable
to get it set aside. An invalid title may be set aside by filing a
“bill to quiet title,’ as it is called, and this will cost generally
from $25 to $50, or probably more. If the “shark” is very
unreasonable and demands an enormous figure for his claim, it will
be best to let him wait awhile. He may calm down in time. His
claim will expire by limitation in fifteen years in most States, and
in some States less. If the “shark” commences suit against you
put your case in the hands of the best attorney in your community,
and the probabilities are that the “shark” will compromise,
CHAPTER XxXV.

THE LAW OF SALES.

 

1. As Applied to the Purchase and 13. Warranty of Goods,

Sale of Farm Products, Ete, 14. Express Warranties.
2. What is a Sale. 15. General Warranty,
3. The Thing sold. 16, Warranty of Horses,
4. Contracts of Sale Must Sometimes 17, Written Warranties,

be in Writing. 18. Implied Warranties,
5. Form of Memorandum of Sale. 19. Purchase of Spurious Goods
6. Form of Contract of Sale, 20. Sale of Fruit Trees and Other
7. Goods, Wares, and Merchandise. Nursery Stock,
8, Acceptance and Receipt. 21. Remedies for Breach of War-
g. When Title to Property sold ranty,

Passes, 22. Rights and Remedies of the
10, Cases Where Title Does Not Seller of Goods.

Pass. 23. Stoppage of Goods in Transitu.
1r. When the Title does Pass, 24. Rights and Remedies of the
12, Condition. Buyer.

1. As Applied to the Purchase and Sale of Farm Pro-
ducts, Ete. This branch of law is of great importance to traders
and commercial men generally, being the legal basis of all their
transactions, but it is scarcely less important to farmers and
mechanics, for it underlies and determines many of their rights
and liabilities. In the purchase of farm supplies, the sale of farm
products, and the sale of mechanics’ and craftsmen’s wares, it is of
constant application; and perhaps of the entire business transac-
tions of an average community, more are regulated by the princi-
ples of this department of law than by those of any other. The
subject is therefore well worthy of study by the industrial classes.

 

NoTe.—The writer desires to express his grateful acknowledgment to Mr. Wil
liam L, Carpenter of Detroit, for valuable assistance in the preparation of this

Chapter.—H. A, H.
210 MANUAL OF THE LAW.

 

2. What is a Sale. To constitute a valid sale there must be
a concurrence of the following elements, viz.: 1. Parties com-
petent to contract. 2. Mutual agreement or assent. 3. An arti-
cle or thing the property or title of which is transferred from the
seller to the buyer. 4. A price in money, paid or promised.
That it requires competent parties and mutual assent to effect a
sale is manifest from the general principles governing all contracts
as set forth in the first chapter of this book. The third and fourth
essentials require some explanation. A sale is a transfer of a gen-
eral or absolute interest in, or title to, the thing sold, and nota
special or particular interest. For example: A farmer borrows
a plow to use, or he has the custody of a horse with power to sell
it, or property is left with him as security for a debt, he has only
a special interest in such property, and the transaction by which
he acquires that interest is not a sale.

In regard to the element of price, it must be money, either paid
or promised. If the consideration for which the thing is sold be
anything else it is not a sale. If property be exchanged for prop-
erty it is a darter, and if property is exchanged for work or rent
it is not a sale, though the legal effect of such special contracts are
generally the same as in the case of sales.

3. The Thing Sold. The thing sold must be something in
existence or capable of being brought into existence. If it is sup-
posed to be in existence and as a matter of fact it is not, then the
sale is void, and no rights or liabilities arise or attach to either the
seller or buyer. For example: IfIsell a ship that is on the
ocean at the time of sale, and it turns out at that time the ship was
lost, the sale is void. I cannot be required to deliver the ship or
pay damages, nor can the buyer be required to stand the loss.
The transaction is simply void. If money has been paid it must
be paid back. (9 Exch., ror.)

Sales of Things not yet Made or Owned by the Seller.
Unlike the case just mentioned where the thing sold has passed
out of existence, sales of things not yet in existence are valid.
These things the law divides into two classes, one of which may
be sold, the other can only be the subject of an agreement to sell.
The class which may be sold embraces all things which are the
natural product or increase of something already owned by the
seller, as, for instance, the crops that will grow on his fields, the
wool to be clipped from his sheep, the apples to be picked from his
THE LAW OF SALES. ail

 

trees, and the like. But only an agreement to sell and not an
actual sale can be made of those things which are to be afterwards
acquired by the seller,—as the wool of any sheep he may buy, ot
any goods that he may purchase at a future time. The import-
ance of this distinction between these two classes rests on this fact
that, if the seller of goods, respecting which only an agreement to
sell can be made, refuses to carry the sale into effect when the
property reaches the condition to be sold, then the buyer will
acquire no title or interest in them. All that he can do is to sue
the seller for breach of contract. But in the case of the first class,
the sale being absolute, the title passes at the time of sale, and no
new act by the seller is necessary to complete the sale. If the
seller refuses to deliver, the buyer can take possession just as he
could of any other property belonging to him, (110 Mass., 303.)
To illustrate: A farmer sells a crop of growing wheat, both parties
to the contract intending that the title shall be transferred at once,
the property in the wheat at once passes to the buyer, and when
the crop ripens he has a right to harvest it without any further
consent on the part of the seller. But on the other hand suppose
a farmer sells a crop of wheat on a farm that he contemplates buy-
ing; he afterwards buys the farm, the crop ripens, and he refuses
to allow the purchaser to harvest it. In this case the property in
the wheat not having passed, the only remedy the purchaser has is
to sue the seller for damages.

4, Contracts of Sale Must Sometimes be in Writing. At
common law a verbal contract of sale was always valid and bind-
ing. But among the requirements of the Statute of Frauds (pre-
viously referred to, page 35), which is now in force in all the
States, is one which provides that “no contract for the sale of
any goods, wares or merchandise, for the price of $50 or more
shall be allowed to be good,«unless the buyer shall accept part of
the goods so sold and actually receive the same, or give something
in earnest to bind the bargain, or in part payment, or some note
or memorandum in writing of said bargain be made and signed
by the parties to be charged by such contract, or by their agents
thereunto lawfully authorized.”

If the contract price of the articles sold is less than $50 an oral
or verbal contract is binding; but if it is $50 or over, then tne con-
tract must be in writing, or the articles must be delivered, or paid
212 MANUAL OF THE LAW.

 

for in whole or in part, otherwise the contract can not be enforced
and no rights or liabilities attach to either party.

The following forms will be found sufficient to cover the require-
ments of this statute in ordinary cases:

5. Form of Memorandum of Sale :—

John Brown and Peter Jones agree as follows: John Brown is to sell to Peter
Jones 300 bushels white winter wheat at $1 per bushel, and to deliver the same
at the mill of Peter Jones, between the first and twenty-fifth day of September next.
Peter Jones is to pay for the said wheat on or before the first day of October next.

Dated August 1, 1884,

JOHN BROWN,
PETER JONES,

6, Contract of Sale:—

GENERAL FORM,

This agreement, made this day of ——, 188—, between A—- B—, of ——,
and C— D. , of , Witnesseth: That the said A—— B——, in consideration
ef the agreement hereinafter contained to be performed by the said C—- D—,
agrees to sell and deliver to the said C—- D——., at his store-house in » (here
describe goods, their quantity and quality), on or before day of —.,

That the said C—- D——, in consideration thereof, agrees to pay the said A—
B—— the sum of dollars per —— for the said immediately upon the
delivery thereof,

Witness our hands this

 

 

 

 

 

 

 

 

. day of ——, 188—,

A— B——.
c—  D .

 

An important question arising under this enactment is whether
contracts for the manufacture of articles are required to be in
writing, if for over $50. The authorities are almost hopelessly in
conflict on this question, but the following may be regarded as the
most reasonable rule, and the rule which seems to be fast gaining
the assent of our highest courts: If the contract is intended to
result in transferring, for a price, a thing or chattel in which the
purchaser had no previous property, it is a contract within the
statute, and must be in writing or the statute in some other manner
complied with, otherwise the contract will not be binding. But if
the purchaser furnishes the material out of which the chattel is to
be made, then it is a contract for work and labor, and is not covered
by the statute. (1 Best & Smith, 272; 14 Mich., 271.) To illus-
trate: A farmer orders a wagon made according to certain speci-
fications, for which he agrees to pay $80. By the above rule this
is a contract for the sale of a chattel, and neither party is bound by
it unless the statute of frauds is complied with, A blacksmith,
THE LAW OF SALES. 213

 

therefore, who takes a farmer’s order for a wagon should have the
order reduced to writing and signed by the farmer; or it would be
better if both should sign it, then it will be mutually binding.

7. Goods, Wares, and Merchandise. Questicns sometimes
arise as to what things are included under the above terms. Chat-
tels of'all kinds fall under such a description, and all of the crops
grown by the farmer which are the result of his yearly labor; that
is all annual crops which are sown and gathered each year, such as
wheat, corn, potatoes, and oats. These are “ goods, wares, and
merchandise,” and their sale is governed by the principles abo-e
laid down. On the other hand those crops which are the natural
growth of the soil, such as grass, timber, fruit on trees, to which
the annual labor of man only contributes partly, are not “ goods,
wares, and merchandise,” but are while still on the soil interests in
the land itself, and a transfer of title to them can be accomplished
only by such formalities as are necessary for transferring title to
the land. The moment however that they are severed from the
land they become chattels and pass under the former rule. To
illustrate this, suppose that a farmer desires to sell a crop of apples

- still on the trees, or the timber standing in a certain wood-lot. He
must do it by giving a regularly executed deed of the apples or
the timber, just as he would of the land itself, otherwise no binding
or enforcible sale will be made. But were he to sell a crop of
corn, which is of annual growth, no writing would be required at
all, unless the price exceeded $50.

8. Acceptance and Receipt. By receiving and accepting the
goods sold, or any part of them, the statute is complied with and
the contract rendered binding, but there must be both acceptance
and receipt. There may be an acceptance without a receipt, or a
receipt without an acceptance, and in neither case will the contract
be binding. To constitute a receipt and an acceptance the goods,
or some part of them, must come into the possession of the buyer,
and he must do some act in relation to them after he has had the
opportunity of rejecting them. If after he has had such an oppor-
tunity he exercises azy act of ownership over them it amounts to
an acceptance. To illustrate: A farmer delivers wheat to a
miller at his mill. That is a receipt. The miller examines the
wheat and empties the bags into his bin. That is an acceptance.
After that is done, and not till then, or until some other similar
act is done, the contract is binding, the sale is made. This rule
214 MANUAL OF THE LAW.

 

applies whether the contract comes within the Statute of Frauds
ornot. (3 Gray, 333; 118 Mass., 145.)

The contract will be binding if the requirements of the statute
are complied with at any time after it is made. Though not bind-
ing when made, it will become binding when reduced to writing
and properly signed, or when part payment is made and accepted,
or when receipt and acceptance take place. To illustrate: A
farmer sells 1000 bushels of wheat at $1 per bushel by a verbal
contract; 10 bushels are delivered and accepted by the buyer, the
whole contract then becomes binding. Or if a memvrandum is
made the contract becomes binding upon the one who signs, If
but one signs, only the one who signs can be sued; therefore in
order to make the contract mutually ee each party should
insist on the other’s signing it.

9. When Title to Property Sold Passes. It is often very
important to know just at what moment the title to property being
sold passes from the seller to the buyer. If, for instance, the prop-
erty is suddenly destroyed the question as to who shall stand the
loss depends upon who owns the property at the time. For the
purpose of determining this, contracts of sale are divided into two
classes,—executed and executory. In an executed contract the
moment the contract is concluded the property in the thing sold
passes to the buyer; while in an executory contract the title of the
property remains in the seller till the contract is executed. The
first is really a sale, the other only an agreement to sell, To dis-
tinguish these classes and to determine when the contract is con-
sumimated the following rules may be made use of. 1. If it is the
intention of the parties that the transaction shall be a sale, then it
will be such, and the title will pass at once, and if such intention
is clearly manifest it matters not what situation the property may
bein, The title to it will pass, though there may be no actual
delivery of it, or though it may be located in a distant part of the
country or the world. If the intention is not expressed in words
or writing it may be gathered from the acts of the parties or from
surrounding.circumstances; but it must be made clearly manifest
or this rule will not apply. Perhaps in the great majority of cases
the intention is not clearly manifest, hence rules for determining it
are needed. 2. Where there has been no manifestation of inten-
tion, if a specific thing has been agreed upon and is ready for
delivery, the law presumes that the contract is an actual sale; but if
THE LAW OF SALES. 215

 

the goods are not specific, or if when picked out or specified, any-
thing remains to be done by the seller to put them in a deliverable
shape, or to ascertain their value or price, then the law presumes
that the transaction is a contract of sale and is not to become a sale
until delivery and acceptance. To illustrate: If the farmer says
to the drover, as they stand looking at the farmer’s cow, “I will
sell you that cow for $25,” and the drover says, “ I’ll take her,’
that concludes the sale; and if while the drover is counting out his
money the cow is suddenly killed by lightning, it will be the
drover’s loss. It is seen from this that payment of the money is
not essential to pass the title. But if it is understood that the sale
is to be for cash, the purchaser, though he may acquire title, will
have no right to take the property without payment or tender. It
would be otherwise of course if by the terms of the contract credit
was given.

The mere fact that after the property has been appropriated,
that is, pointed out in a deliverable condition, the duty remains on
the seller to deliver the same at some place agreed upon, will not
prevent the title from passing. A lumberman once sold a bill of
lumber in his yard, the lumber being selected and paid for, the
seller agreeing to deliver the same at the railway station, Before
he could so deliver it, it took fire and burned up, and the court
held that the title had passed and that the loss fell upon the buyer.
(25 N. Y., 520.) In another case lumber was sold at a price to be
afterward determined; it was duly inspected and set aside awaiting
delivery upon the purchaser’s boat when it should arive. While
so situated it was destroyed by fire without fault on the seller’s
part, and the court held that the title had passed and the loss was
the buyer’s. (24 Mich., 486.) In these and all similar cases title
passes at time of sale. As further elucidating this subject we per-
haps can not do better than to group the instances where title does
not pass at time of sale.

10. Cases Where Title Does Not Pass. 1. There is first
the case above referred to where something remains to be done by
the seller to put the property in shape for delivery as required by
the contract. This is illustrated by a case in Massachusetts where
R. bought of F. a large quantity of fish lying in two piles. They
were to be paid for 30 days after delivery and F. was to dry the
fish before delivery. It was held that the fish remained the prop-
erty of F, (111 Mass., 10.) Or take the case of a farmer who
216 MANUAL OF THE LAW.

 

should sell a bin of wheat which is to be cleaned before delivered.
It would remain the farmer’s property until cleaned and ready.

2. Where something remains to be done to the goods by the
seller, or by both parties, for the purpose of ascertaining the price
of the goods, where the price is to depend upon their quantity or
quality, the title will not pass until that thing has been done, To
illustrate this another actual case may be cited. L. bought of E.
all the prime lumber in his yard at certain specified prices for each
quality, and paid $500 on the purchase price. L. was to pay the
balance at a future date. Before the assortment, inspection or
delivery of the balance it was burned. Held that the property in
it had not passed, and the loss fell on the seller. (27 Mich., 324.)
Or suppose a farmer sells a bin of beans, at $1.50 per bushel for
the choice, and 15 cents per bushel for the culls, after sorting. The
title to the beans would not pass until the beans were sorted and
ready for delivery, and if in the meantime they burned it would be
the farmer’s loss,

3. Where the thing is not specified or definitely pointed out at
time of sale, as a wagon to be made, or 100 bushels of wheat out
of a bin containing a larger amount, the title will not pass. W.
bought of B. 15 of the best sheep in his flock. The sheep were
not picked out at the time, and before they were selected a con-
troversy arose as to whether the title had passed to the seller, and
the court held that it had not, (24 N. H., 336.)

11. When the Title Does Pass. If the title does not pass
at the time the sale is made it is important to know just when
it does pass, so that in case the property is lost it may be known
upon whom the loss falls, and trouble thus be avoided. So much
depends upon the circumstances of each particular case that it is
difficult to give any general rule of great practical value, The
title will pass when, and not till when the goods have been selected
and set apart for the purchaser in accordance with the terms of the
contract. The difficulty in applying this rule is to determine who
by the terms of the contract is to make the selection. It may be
the buyer who has this authority, or it may be the seller, or it may
be both. To determine who is to make the selection the follow-
ing rule may be of service. The party who by the terms of the
contract is to do the first act, which can not be done till after the
selection is made, has authority to make the selection.

To illustrate: A farmer orders from a seed merchant a pack-
THE LAW OF SALES. 217

 

age of turnip seeds, to be sent by mail. It is obvious that the mail-
ing of the seeds is the first act to be done after the sale is made.
This act by the terms of the contract is to be done by the seller,
and he therefore is to make the selection. Consequently the selec-
tion of the seeds and mailing of them by the seed merchant passes
the property to the farmer, and if they are lost in the mails it is
the farmer’s loss. And, generally, it may be stated, that where
goods are ordered from a distance to be shipped by a carrier, as
by freight, mail or express, delivery to the carrier by the seller,
passes the title to them. Of course if the goods do not comply
with the order no title passes, unless they are accepted by the
buyer after he has inspected them, all of which is explained fur-
ther on. On the other hand a farmer sells to his neighbor a barrel
of apples to be picked by the neighbor from the tree on which
they are growing. Here the buyer is to do the first act, and there-
fore he is to make the selection, When the apples are picked the
title passes.

12. Conditions. By a condition in a contract of sale is meant
some stipulation, the non-performance of which will justify a
repudiation of the contract. There is, for instance, in the case of
a sale by sample an implied condition that the goods delivered
shall correspond with the sample. If they do not the buyer is
justified in repudiating the contract and refusing to take the goods,
Or if the goods are ordered by description they must substantially
conform to the description or the buyer can not be compelled to
accept them. Again if goods are sold on trial or approval, the
buyer has a reasonable time in which to try them, and until he
accepts, or until the lapse of this reasonable time, the title remains
in the seller. To illustrate: A farmer buys a mowing machine
with a stipulation that if the machine does not, on ten days trial,
meet his approval he shall not be bound to keep it. During the
ten days the machine remains the property of the seller. The
farmer can change his mind as often as he chooses about keeping
it, and he can refuse to accept it for any reason satisfactory to him-
self. But if he continues to use it after the ten days have tran-
spired, it will be an acceptance and he will be bound to pay for it.
So, too, in the case of sale by sample or description, if the non-
compliance of the goods with the sample or description can be
ascertained by inspection, the purchaser is bound to so ascertain it
at once and refuse to accept the goods, otherwise his retention of
218 MANUAL OF THE LAW.

 

the goods will be an acceptance of them. To illustrate: A farmer
orders from a distant factory a four spring buggy; a three spring
buggy is shipped to him. He takes it from the depot and uses it
for several days. This amounts to an acceptance and it becomes
his.

In the case of a“ Sale or Return,” that is where property is
bought with the privilege of returning it if the purchaser does not
like it, the title passes at once to the purchaser with the right of
revesting it in the seller at his option. As for instance where the
farmer buys a pair of boots with the privilege of returning them
if they do not fit; they become his boots as soon as he takes
them. There is thus a distinction between the cases where the
purchaser has an option to seep the goods if he likes them and
those where he has an option to return them if he does not like
them. In one class of cases the buyer does not own until he
approves, in the other he does own until he disapproves. (100
Mass., 198.) To illustrate; A farmer buys a harvester under a
contract authorizing him to return the same if it does not work to
his satisfaction. If the harvester is destroyed by any accident it is
the farmer’s loss, but as has been illustrated in the case of a sale
on approval, if the harvester were bought with the privilege of
trying it and keeping it if satisfactory, it would remain the prop-
erty of the seller until the buyer had done some act signifying
approval. Reflection will be necessary to determine under which
of these two classes any particular sale “falls. (104 Mass., 362;
50 Ala., 329.)

138. Warranty of Goods. A warranty is an agreement that
the article sold possesses some stated qualities. It is an agreement
the breach of which entitles the purchaser to damages; it differs
thus from a condition which if broken sets aside the contract and
prevents the sale from taking place. Non-compliance with a war-
ranty leaves the contract of sale still standing and binding, while
non-compliance with a condition renders the sale void. Warran-
ties are either exfress, that is stated in words or writing, or they
are implied, that is raised by the law.

14. Express Warranties. No special form of words is nec-
essary to make an express warranty. Any statement made by the
seller at the time of sale will be a warranty, if so intended. The
seller of a piano stated at time of sale that the piano was “ well
made and would stand up to concert pitch.” This was held to be
THE LAW OF SALES. 219

 

a warranty. (6 Allen, 413.) A decisive test to determine whether
a statement will amount to a warranty is whether the statement is
of a fact of which the buyer is ignorant, or is only an opinion or a
judgment which either party can give. The former is a warranty,
the latter not. Of course the ordinary bandinage of trade, and the
customary chaffing or praising which sellers sometimes indulge in
are not warranties. The maxim, Caveat emptor, “let the pur-
chaser beware,” is the general rule; but when the seller states as a
fact something which the buyer is not in a position to know, then
he is as much bound to see that such statements are fulfilled as if
he in words says he warrants them true. It is seen therefore that
it is not necessary to use the words “I warrant,” or “I guaran-
tee,” or any similar expression in order to create a warranty, it
being sufficient if there is a statement of facts iztended as war-
ranty. An excellent illustration of this is an English case (5 M.
& R., 124), in which the seller of a horse had told the buyer that
«the horse was sound to the best of his knowledge,” but refused
to warrant, saying, “I never warrant. I would not even warrant
myself.” It was afterwards found that the horse was unsound
and that the seller knew it, and it was held that the language used
constituted a warranty of soundness and that the seller was liable.
15. General Warranty. Where the seller simply says, «I
warrant the thing,” or “I warrant it sound,” that is a general war-
ranty. Such a warranty does not extend to defects apparent on a
simple inspection, nor to defects known to the buyer. To illus-
trate: A general warranty, or warranty of soundness of a horse
would not be broken by the fact that the horse could not see out
of an eye that was obviously gone, and the buyer knew it was
gone. If, however, the apparent defect is one which may or may
not be an indication of serious consequences, the warranty will be
broken if those serious consequences develop. To illustrate: A
horse was once sold, warranted “sound wind and limb.” The
horse afterwards proved to be permanently lame from the effects
of a splint on the fore leg, which was apparent at time of sale. It
appeared in evidence that there were two kinds of splints, one of
which caused lameness and the other not. It was held that as the
result could not be told from an inspection of the splint at the time
of sale that the seller was responsible under his warranty. (8
Bing., 454+)
‘16. Warranty of Horses. It is very common for horses to
220 MANUAL OF THE LAW.

 

be sold warranted “sound.” It is therefore important to know
what will be a breach of this warranty of soundness in horses,
The rule laid down is that any disease or accident which makes
the animal less capable of work, or which diminishes his natural
usefulness, or which will in its ordinary progress have these effects,
is an unsoundness, and hence a breach of the warranty. Such for
instance as “ bone spavin in the hock,” “ ossification of the cartil-
ages,” “thick wind” and “roaring,” have been held to be “unsound-
nesses;” but “crib biting,” “mere badness of shape,” “hocks
which render the animal liable to curb,” and “thin soled feet,”
have been held not to be unsoundnesses,

17. Written Warranties. If the contract of sale is in writ-
ing, the warranty, if any, must be contained in it, for 1t cannot be
shown that any warranty not contained in the writing was made,
If the contract of sale is not in writing the warranty need not be,
and whether or not there was a warranty will be gathered from
all the circumstances, the acts, sayings, and conduct of the parties
at the time of sale.

Unless the language of the warranty expressly includes it, the
waranty will only cover defects which exist at the time the war-
ranty is made. But defects which do not exist at the time of sale
may be guaranteed against by express words, as where a watch
is warranted to run for five years, or anything else is warranted
for a definite time.

18. Implied Warranties. 1. Of title. When one sells goods
which are in his possession at the time of sale, he by so doing war-
rants that the title which he conveys is a valid and perfect title,
and if the purchaser loses the goods, by reason of the title prov-
ing defective, he can recover from the seller the price paid for the
goods and damages for breach of contract. If the goods at the
time of sale are in the possession of a third party there is no implied
warranty of title, and the purchaser must take his chances. If the
title fails he has no remedy, unless there was fraud or an express
warranty.

2. Implied Warranty of Quality. As has been stated, Caveat
LEmptor—“let the purchaser beware”—is a maxim of the common
law. The buyer, in the absence of any fraud practiced upon him
by the seller, takes his chances upon the quality of the goods he
_ buys, unless there is an express warranty, except in certain cases
THE LAW OF SALES. 221

 

as below set forth. Under the following circumstances the law
will raise an implied warranty of quality:

1. In the case of sale by sample there is an implied warranty
that the quality of the goods delivered shall be equal to that of the
sample.

z. Where goods are sold by description and there is no oppor-
tunity for the buyer to inspect them, there is an implied warranty
that they are sa/able and merchantable. To illustrate this point:
A farmer orders a sack of Java coffee. It is shipped to him,
opened, and after using it he discovers that it has been spoiled.
Under these circumstances the merchant from whom it was
ordered will be held to have warranted that the coffee was good
and salable, and he will have to pay the damage caused.

3. Where an article is sold for a specific purpose known to the
seller, who undertakes to supply it for that purpose, there is an
implied warranty that it is reasonably fit for the purpose. To
illustrate: A coach maker furnished a carriage pole; the pole
broke because not reasonably fit for the purpose, though from a
defect not apparent; it was held that the coachmaker was respon-
sible for the damage. (Law Reports, 2 Q. B., 102.) This princi-
ple fixes the liability of manufacturers who furnish machinery to
perform a certain purpose. To illustrate: A farmer orders from
a manufacturer a pump for use in a well 80 feet deep. By send-
ing a pump to fill this order the manufacturer impliedly warrants
that the pump will answer the rcqu‘red purpose. If, after the
pump is put to use, the farmer finds that it wit! not work, that it
will not raise water that distance, or for some other reason will
not answer, it is then the manufacturer’s duty to remedy the defect
or pay for the trouble and damage caused.

19. Purchase of Spurious Seeds. The farmer is often most
seriously damaged by buying worthless farm and garden seeds.
Many seeds will not grow well if kept over one year, and an inspec-
tion of them will not show whether they are good or whether they
are old and worthless. There is no test which the farmer can read-
ily apply to determine whether they are good or bad. Consequently
if the seed merchant sells him old seeds, which have been left over
from the last year’s stock, the farmer may have the trouble and
expense of preparing his land and sowing his crop for nothing.
Again, some kinds of seeds are difficult to distinguish from others.
Cabbage and turnip seeds are very similar in appearance. If the
222 MANUAL OF THE LAW. =

 

farmer prepares his soil for a crop of turnips and the merchant
sells him cabbage seed, which he can not by inspection distinguish
from the turnip seed, it will probably result in a loss of his entire
labor and expense in getting the soil ready, and of course it will cut
off his expected profits. His damages may amount to many dol-
ars, and it is therefore desirable to know his rights in the matter.
Ihe sale of seeds falls under the second principle above laid down,
namely the sale of goods by description. Goods so sold where
there is no opportunity of inspection, or where an inspection will
not reveal their worth, are impliedly warranted to be good and
merchantable. Very few seeds are of such a character that the
most careful inspection will reveal their true worth. Where,
therefore, they are labeled and sold for a given variety there is
usually an implied warranty that they are as represented and that
they are good. (69 N. Y.,65.) The usual measure of damages for
breach of warranty is the difference between the value of the thing
as furnished and the value it would have if as warranted. This
rule generally works justice,—but in the case of a sale of worthless
seeds, a recovery of the difference in intrinsic value of good and
bad seeds, or even a recovery of all that had been paid for the
seeds, would fall far short of the farmer’s actual loss, whose labor
for the entire season upon a given field may have, for that reason,
practically come to naught. On this account the decisions have
made exceptions in the case of seeds to the general rule, and the
measure of damages in such cases seems now to be the value of
the crop that would have grown had seeds been as warranted, less
the expenses of raising the crop and the value of the crop actually
produced. (34 N. Y., 634.) Profits which certainly would have
been realized except for the seedman’s default may be shown and
recovered as damages. In other words, one may now recover the
reasonable profits of his crop had the seeds- been good. To avoid
this liability seedsmen now generally print upon their packages a
notice that they do not warrant the seed. If this notice is brought
to the attention of the buyer, and is given in good faith by the
seedman, it may have that effect. But if the seller knows that the
seed is bad, and he sells it with such notice, he will be liable for
fraud and the measure of damages will be the same, or greater.
20. Sale of Fruit Trees and other Nursery Stock. Simi-
ilar to the sale of spurious seed is the sale of young fruit trees or
other nursery products which are not of the kind represented. A
THE LAW OF SALES. 223

 

farmer decides to plaut an orchard. He buys the young trees from
a neighboring nurseryman; sets them out, and carefully keeps
them tilled, pruned, and trained for ten or twelve years until they
begin to bear. If he then finds that they are not the kind ordered,
but are of a totally worthless variety, his loss is serious indeed.
But by ordering a given variety from the nurseryman, who under-
took to fill the order, he obtained from the nurseryman an implied
warranty that the trees were good and merchantable, and of the
kind ordered, and the nurseryman is bound to make good the loss.
The measure of damages would be similar to that used in the case
of the sale of worthless seeds.

21. Remedies for Breach of Warranty. Where the goods
sold do not turn out to be as warranted, the buyer, as a remedy,
can sue the seller and recover such damages as equal the difference
between the value of the goods as delivered, and the value of them
if-they had been as warranted. This, as above stated, is the
general rule. To illustrate it: A horse is sold warranted sound.
It turns out that the horse has an ailment rendering him perma-
nently lame. As warranted, he would be worth $200. In his
actual condition he is worth but $50. The buyer can recover the °
difference as damages, namely, $150. In certain cases it has been
held that where an article has been soid to answer a certain pur-
pose, with an agreement that if it does not it shall be made to do
so, and it does not, on trial, answer the purpose, and the seller fails
to make it so, the buyer can return the article and recover, as
damages, the contract price and also the actual damage sustained.
(35 Mich., 310.)

22. Rights and Remedies of the Seller of Goods. If the
buyer refuses, without legal cause, to accept goods properly ten-
dered him in fulfillment of the contract, the seller can sue him and
get as damages the difference between the value of the goods at
the contract price and the value at which the seller can then dis-
pose of them. To illustrate: A farmer contracts his wheat at
$1.10 per bushel. At the time fixed for delivery wheat has fallen
to 96c per bushel, and the buyer notifies the farmer that he won’t
take it. The farmer can sue and get as damages 14c on each
bushel of wheat contracted for. (12 Met., 482; 5 N. H., 307.) Or
to illustrate further: Suppose a farmer contracts to buy ten tons
of plaster at $5 a ton, which is duly shipped to him by freight.
Upon its arrival at the time of delivery, the farmer declines to take
224 MANUAL OF THE LAW.

 

it. He perhaps may have lost faith in plaster and concluded that
he rather pay damages than to have the stuff on his place. The
dealer can recover as damages the difference between the contract
price and the value of the plaster at the place where it then is. If
it has no market value there the damages will include what it will
cost to take it to some place where it has a market value, unless he
can sell it for more where it is. The seller is always bound, under
such circumstances to do the best he can with the goods, and to
make his damages as small as possible; and if he fails to do so, he
will have to stand the increased loss himself, If the property in
the goods has passed to the buyer, and the goods remain in the
custody and possession of the seller, and the buyer refuses to per-
form any condition required to be performed by him before the
goods are delivered, the seller can refuse to deliver the goods, and
can sue the buyer for the price of them, keeping the goods for
the buyer until the termination of the suit; or he can resell them,
and hold the buyer for the difference between the price at which
he sold them and the price the buyer agreed to pay; or he can
keep the goods as his own, and recover the difference between the
contract price and the price at which he can again sell them. To
illustrate: A farmer sells 200 cords of wood in a deliverable con-
dition at $3.00 a cord, to be drawn away by the buyer within two
weeks, the buyer to pay for the same before drawing them away.
The buyer refuses to make the payment. After the lapse of the
two weeks, the farmer can sue the buyer for the price of the wood,
keeping the wood subject to the buyer’s order till the termination
of the suit, and collect the full contract price as damages; or he
can sell the wood to another buyer, taking care to sell it at the
best possible price, and recover as damages the difference between
the price at which he sold and the $3.00 per cord; or if he prefers
to keep the wood himself he can recover the difference between
the $3.00 per cord and what the wood will bring.

23. Stoppage of Goods in Transitu. In general the delivery
of goods by the seller to a railroad company, steamboat line, or
other carrier, in conformity with the buyer’s orders, passes the
property to the buyer beyond the control of the seller. But if the
buyer becomes insolvent while the goods are on the way and
before they pass out of the carrier’s hands, the seller may retake
them or stop them and hold them until they are paid for. This is
what is called “stoppage in trausitu.” It can only be exercised
THE LAW OF SALES. 225

 

when some part of the price of the goods remains unpaid, and
when the buyer becomes insolvent (by which is meant a general
inability to pay his debts), and also while the goods are in transit,
To illustrate: A farmer, in conformity with a contract of sale,
ships a car of wheat to a merchant in a distant city. The price of
it is to be paid at a future day. While the wheat is still in posses:
sion of the carrier, the merchant fails, or becomes insolvent, The
farmer may and should at once telegraph the agent of the carrier
to hold the wheat subject to his order, and the carrier will be
obliged to do so. (106 Mass., 67.)

24. Rights and Remedies of the Buyer. If the property
in, or title to, the goods, still remains in the seller, and he refuses
to deliver the same under a valid contract of sale, the only remedy
of the buyer is to sue him for damages. And, in general, he will
recover as damages the ditference between the contract price and
the market value of the goods, that is, the price at which he can
get them elsewhere. To illustrate: A farmer contracts to buy
from a brickmaker 50 thousand brick, at $4.00 per thousand, to be
delivered in February. Before that time brick go up to $6.00a
thousand, and the brickman, having, perhaps, in the meantime,
sold all his brick at the advanced figure, cannot complete his con-
tract. The farmer can recover as damages $2.00 per thousand for
the brick contracted. The fact that the article bought has been, in
reliance upon the contract, sold at a higher price, or the fact that
its non-delivery occasions increased damages—as if it were part
of the machinery of a mill which must lie idle in consequence
—will not usually alter the general rule. These damages are
regarded as accidental, and the law does not charge them to the
seller. But if the seller Zzows when the contract is made that the
non-delivery of the goods bought will result in such extra or acci-
dental damages to the buyer, though there is some conflict among
the cases upon the point, the weight of authority is that they can
be recovered as part of the damages. (40 N. Y., 422.)

If the goods tendered by the seller to fill an order do not answer
the required description, the buyer, as has been stated, can reject
them, and if the seller has no further time to comply with his con-
tract, the buyer can sue him and recover damages according to the
general principles above laid down,
CHAPTER XXVI

COMMON CARRIERS. DUTIES OF PERSONS
ENGAGED IN CARRYING GOODS AND

PASSENGERS.
1. Who is a Common Carrier. g. Different Rule of Liability for
2. Duty of a Carrier of Goods. Carriers of Persons.
3. Carrier of Goods Insures their 10. Evidence of Negligence of
Safe Delivery. Carrier.
4. Limitation of the Above Rule, 11, When Liability to Passenger
5. Special Contracts Limiting Car- Commences and Ceases.
rier’s Liability. 12. Carrier Must Carry all Impartially.
6, When Carrier’s Liability Begins. 13. What Excuses for not Carry-
7. When Carrier’s Liability Ceases, ing are Valid.
8. Duty of a Carrier of Persons. 14, Rules Adopted by Carriers,

1. Who is a Common Carrier. Judge Cooley in his work
on “ Torts” (page 638) gives this definition of a common carrier:
“One who regularly undertakes for hire, either on land or water,
to carry goods, or goods and passengers, between different places
for such as may offer.” This includes express companies, railway
companies, steamboat companies, etc., but it does not include those
carriers who have no regular route and who only carry under par-
ticular contracts. A common carrier may be a carrier of all kinds
of goods or only of one or more particular kinds. Thus an express
company is not a common carrier of grain in bulk, nor a railway
company of money packages.

2. Duty of a Carrier of Goods. In general a common car-
rier is required to carry all goods of the classes which he has been
accustomed to carrying, or which he proposes to carry. He must
receive and carry for all who offer, without discrimination or par-
COMMON CARRIERS. . 227

 

tiality. He may make special bargains in exceptional cases for
carrying at reduced rates, but he must not carry for one on terms
which he will not give to all. He may carry at a reduced rate
for persons who will relieve him of some of his liabilities as a
common carrier, providing he will do the same with all; but he
cannot carry at a reduced rate for one who ships more freight
than another. To allow discrimination in favor of the larger ship-
per would disable the smaller shipper from competing with him.
and would practically result in giving a monopoly of trade to the
larger shipper. This is why the courts have decided that such
discrimination is illegal. The farmer therefore has a right to
insist that a railway company shall carry his single car load of
wheat on the same terms on which it carries each of the hundreds
of car loads shipped by the wheat buyer from the same place of
shipment.

8. Carrier of Goods Insures Their Safe Delivery. In the
absence of a special contract the obligation of a common carrier is to
accept and promptly transport all goods of the class which he car-
ries and deliver them without damage, unless prevented by the act
of God or of the public enemy. He becomes in fact an insurer of
the goods against all losses except such as result from “the acts of
God ”—like violent storms, lightning, sudden floods, etc.,—or the
invasion of a public enemy. If the goods are lost or injured the
carrier must pay for them, whether he is to blame or not, unless
the loss resulted from these two causes,

4, Limitation of the Above Rule. But this extreme liabil-
ity does not extend to those slight losses which are occasioned by
the natural wear and chaffing in transportation, nor to losses result-
ing from frost, fermentation, evaporation, decay of perishable
articles, and other such natural causes. The carrier must exercise
all reasonable care to prevent losses from such causes, and having’
done that his liability ceases.

Nor does the carrier insure against losses which result from the
goods not being in a condition fit for transportation, nor from not
being properly packed or put up for shipment. Losses from such
eauses are clearly the fault of the shipper and upon him they fall.

Likewise there is an exception to the rule in the case of the
transportation of live stock. The carrier does not insure against
injuries arising from their nature and propensities, which could not
be prevented by foresight, vigilance, and care. Animals may die.
228 _ MANUAL OF THE LAW.

 

from fright, they may injure each other, they may refuse to eat or
drink, or they may sicken and die without apparent cause. In all
of these cases the carrier will be relieved of liability if he can show
that he has exercised that degree of care and diligence which the
nature of the animals required, and that he provided suitable
means of transportation, etc.

5. Special Contracts Limiting Carrier’s Liability. Car-
riers may limit their liability by making special contracts with ship-
pers to that effect. An agreement that the carrier shall not be held
to the strict rule of an insurer is valid, and unless there is a statute
requiring it to be in writing, it may be made verbally. Buta
notice posted up in the place or business of the carrier, or handed
to the shipper, and to which the shipper has not given his assent, is
not sufficient to limit liability. Though a receipt, given upon the
delivery of the goods, which contains the terms of the contract of
carriage has been held to be sufficient. The acceptance of a receipt
may not therefore be always a wise precaution. The receipt will
in most cases be found to contain a contract of carriage which in
legal effect exempts the carrier from everything except the conse-
quences of his own negligence. The depositor of a package with
an express company who procures a receipt for it, has, according
to very many authorities, entered into the contract set forth in
the receipt, which contract usually so limits the carrier’s liability
that the shipper is left at his mercy. This doctrine that the taker
of a receipt limiting the carrier’s liability is bound by it, is a harsh
one, and one that the growth of the law should and no doubt will
modify. The Supreme Court of the United States has taken the
correct view of this matter, which is that where the receipt
is taken merely as a receipt, to preserve evidence of delivery, the
liability of the carrier can not be thereby limited. (Railway Co.
v. Manufacturing Co., 16 Walace.)

6. When Carrier’s Liability Begins. The responsibility
of a carrier begins when the goods are placed in his hands for car-
riage. If they are sent to his warehouse or depot for shipment to
acertain point, and are there destroyed by fire, he is liable as an
insurer. But if the goods are in the carrier’s hands awaiting
orders from the shipper, the carrier is only responsible for loss or
injury resulting from his negligence.

7. When Carrier’s Liability Ceases. If the carrier is to
transport the goods only over a part of the distance to their point
COMMON OARRIERS. 229

 

of delivery, his responsibility ceases when the goods are turned
over to the connecting carrier. If he is to transport them to the
point of delivery, his liability ceases when they are delivered
according to the custom of business at that point. If, according to
that custom, the delivery is made at the place of business of the
consignee, then the liability will not cease until they are so deliv-
ered, But if the custom is to deliver them at the warehouse of
the carrier, the weight of authority is that the liability continues
until the consignee is notified and has a reasonable time and oppor-
tunity to come and get his goods. For instance, if a carrier, like
an Express Co., notified a consignee in the evening or after bank-
ing hours, that a package of money had been received for him, he
would not be obliged to get it until the next morning. If thieves
broke in and stole it meanwhile, the carrier would be responsible.

In all cases where goods remain in the hands of a carrier after
his liability has ended, he is responsible for the damages resulting
from his or his servant’s negligence, but for those only.

8. Carriers of Persons, Their Liability, Ete. When we
turn our attention from those who are engaged in carrying goods
to those who are engaged in carrying passengers, we naturally
expect to find the liability for safe carriage not decreased. Asa
matter of fact, however, we do find that while the carrier practi-
cally insures the safe transit of a car load of wheat, he is bound
only to use due care in the transit of a car load of passengers. He
insures the safety of your bushel of potatoes; he need only be
careful of your wife and child. If the one be lost through the
unavoidable breaking of a rail, he must pay for it. If the health
or life of the other be destroyed by the same cause, no compensa-
tion can be obtained. The duty of a carrier of persons is to use
that degree of care which the nature of his business requires.
This, especially in the case of carriers by steam power, is the very
highest degree of care, skill, and foresight for the safety of the
passengers. All reasonable precautions in the conduct of the
business, the securing of the most approved appliances, etc., must
be observed. If an injury occurs and it can be shown that it was
in any degree owing to any omission, neglect, or want of highest
care on the part of the carrier or his servants, he will be held liable
for the damage sustained. (Redfield on Ry’s, § 149.) But where
the injury occurs by reason of a defect which no degree of watch-
fulness on the part of the carrier could have prevented, he is clearly
230 MANUAL OF THE LAW.

 

not liable. (Angell on Carriers, § 534.) If the injury results in
any degree from the negligence of the passenger, that is, if there
is any contributory negligence on the part of the passenger, then
there can be no recovery of damages. (Redfield Ry’s, § 330.)

9. Reason for Different Rule of Liability of Passenger
Carriers. The reason for this distinction in the rule of liability
in the case of carriers of persons, is found in the fact that the law
fixing the liability of carriers of goods grew up at a much earlier
time and under very different circumstances from that fixing the
liability of carriers of passengers. The liability of the carriers of
goods was legally determined so long ago that no one knows
when the first decisions were made. It was at a time, no doubt,
when the roads of England were so beset by robbers and high-
waymen that to have allowed the carriers to excuse themselves by
simply showing due care would have tended to bring about con-
spiracies between them and the robbers. Such conspiracies were
in many cases supposed to exist. It became necessary, therefore,
to hold carriers to the strict rule of insurers in order to give any
security to shippers of goods. The law determining the liability
of passengers is of modern origin, the first decision being in 1491,
and its growth is hardly yet completed. The reasons which existed
for imposing the onerous liability on carriers of goods do not exist
with respect to carriers of passengers, and the liability of the lat-
ter has therefore been placed upon the broad principle of negli-
gence, above stated.

10. Evidence of Negligence of Carrier. In all countries
and States where the common law is in force, with the single
exception of the State of Michigan, the occurrence of an injury to
a passenger in transit is pr7ma facie evidence of negligence of the
carrier, Ina suit brought by an injured passenger all that need
be proved is that the passenger was injured through the breakage
of some instrumentality over which the carrier had control. When
such proof is made it devolves upon the carrier to show that such
breakage was in no manner due to his fault or negligence.

11. When Liability to Passenger Commences and Ceases.
The obligations of the carrier to the passenger commence when
the passenger enters upon the grounds of the carrier for the pur-
pose of being carried, and they do not terminate -until the journey
is completed and a reasonable opportunity to leave the premises of
COMMON CARRIERS. 231

 

the carrier has been afforded. The carrier must therefore provide
reasonable and safe means of access to and exit from whatever
means of transit he furnishes his passengers.

12. Must Carry all Impartially. Like a carrier of goods
he must carry impartially everyone who presents himself as a pas-
senger, unless he has a valid excuse for not doing so. He must
receive, carry, and bestow equal care upon every one who offers,
no matter what his race, class, color, or previous condition may
have been, and he will be liable for any damage resulting from a
violation of this duty.

13. What Excuses for Not Carrying are Valid. There
are certain reasons which will excuse carriers for refusing to take
passengers. Among these are: 1. That there is a great and
unexpected press of travel which has exhausted all their present
means of transit. 2. That the would-be passenger will not con-
form to the reasonable regulations enacted by the carrier or other
competent authority for the conduct of passengers; or 3. That he
is grossly intoxicated, or is for any other reason unfit to be ina
car with respectable people. It is not a sufficient excuse that the
proposed passenger is a colored person, or a Chinese, or Indian.
All races have equal rights in America. Nor is it a valid excuse
that the traveler is possessed of a low moral character. Such per-
son has the right to be carried, though the carrier must exercise
vigilance to maintain good order and guard passengers from vio-
lence, danger, theft, or any other evil that may naturally be
expected. Carriers have been held liable for moneys which a
gambler defrauded of a minor while traveling. (31 How. P.R.,
272.) But they are not liable for the acts of a mob which could
not have been anticipated.

14, Rules Adopted by Carriers. Carriers may adopt rea-
sonable regulations respecting their business and the conduct of
passengers. Such rules must be observed by passengers, and a
failure to do so gives the carrier a right to remove the offending
passenger from the vehicle. (67 Me., 103.) Among such rules,
and regarded as reasonable, is the rule that the passenger shall
procure a ticket; that he shall show it when called upon to do s0;
that the ticket shall be used for only one continuous journey, etc.
Though a passenger may be removed for a non-compliance with
any proper rule, the carrier must see to it that no unnecessary

force is used or injury committed.
17
CHAPTER XXVII,

LAWS CONCERNING ANIMALS.

s. As to Horses. 7. Sale of Diseased Cattles

2. Horse Breakers, Their Rights 8, Brands and Ear Marks.
and Duties. g. As to Sheep.

3. Horse Breakers’ Lien. 10. Diseases of Sheep.

4. Stallions. 11. Taking Sheep on Shares,

5. Veterinary Surgeons and Far- 12, On the Sale of Wool.
riers. 13. As to Bees,

6. As to Cattle. 14. As to Hogs,

The farm being the basis of our material prosperity has received
constant and careful attention from our legislators. There are
many legal provisions of great interest to the agriculturist which
have not been included in the preceding chapters. Some of the
most important of these will be found grouped in this chapter.

1. The Law as to Horses. From its high position in man’s
esteem the horse has been given a definite legal status by our laws.
In the chapter on the Hire of Animals, the law governing the
letting of horses for use will be found fully set forth, and the
reader who is interested in this subject is referred to that chapter.
Among other things equally important concerning the matter of
horses are the following:

2. Horse Breakers, their Rights and Duties. One who
employs a person to train or break his horse, is, in the absence of
an express agreement between them, obliged to do everything
reasonable on his part to accomplish that object, to hide no defects
or peculiarities of temperament that might render the task difficult
or dangerous, to accept the animal, when broken or trained, and
pay the price agreed upon, or if none has been mentioned, to pay
LAWS CONCERNING FARM ANIMALS. 233

 

a fair compensation. The trainer is bound to exercise due care,
and he is liable for any negligence or for a lack of the skill required
for the undertaking. The law implies a contract on his part, not
only that he will use care and diligence, but that he possesses that
degree of skill and knowledge which will enable him to properly
perform the service, If he fails, and the animal is injured because
of his ignorance or carelessness, he is bound to pay the damage
done. (40 IIl., 210.) He will not be responsible for any injury
resulting from any inevitable accident, or theft, or by reason of
any disease, or from any fault or vice of the horse.

3. Lien of Horse Breaker. There is some conflict of author-
ity as to whether, in the absence of a special statute, the horse
breaker is entitled to any lien upon the horse for the amount of
his services. The general rule is that he is. No lien will attach
unless the horse has been given into the possession of the trainer.
The same is true regarding the owner of a stallion, or in regard
to veterinary surgeons and farriers; where the animals are given
into their possession, they have a lien upon them for a reasonable
charge for their respective services. Whenever the animals are
voluntarily allowed to be taken from their possession the lien
ceases,

4, Stallions. The owner of a stallion who keeps the same
for use, is bound to possess and exercise such a degree of care and
skill in the business as will prevent injury to mares which may
be entrusted to him. If the stallion is vicious, and so known to
be by the owner, and by his viciousness a mare is injured, the
owner is liable. So also if the mare is injured through lack of
the peculiar care and skill required of the one who “tends ” the
stallion, the owner is liable. The owner of the stallion has a lien
upon the mare for the value of the service, and where the mare is
delivered into his possession he may retain the same until his
charge is paid. (4 Mees. & Wels., 283.)

5. Veterinary Surgeons and Farriers. The principles
applicable to horse trainers apply to the case of veterinary sur-
geons and farriers. They are held to the exercise of ordinary care
and diligence, and must possess sufficient skill and learning to
properly discharge their duties. A veterinary surgeon impliedly
holds himself out to the public as being skilled in his business and
competent to care for sick or injured animals. His contract is not
,

234 | MANUAL OF THE LAW.

 

that he will cure all animals entrusted to him, but that he will use
all the known and reasonable means to effect a cure. If he does
not do so he is liable in damages for the injuries resulting from
his failure. Such damages are generally determined by a jury.

A farrier is held also to the same rules. He impliedly contracts
in taking a horse to shoe, to do the work in a proper manner, and
he is bound to possess the degree of skill, and exercise that care
which will enable him to do so. If he lames the horse in shoeing
it, an action will lie against him for the injury caused. He is
regarded as being in the nature of a public agent, and he is bound
to serve the public without discrimination. He has a lien upon
the animal for his service.

6. The Law as to Cattle. There are many special statutes
for the protection of cattle from disease. There have been acts
of congress preventing the importation of cattle from foreign
countries at various times when dangerous diseases have been
known to prevail among cattle in other parts of the world. The
statutes of the various States usually provide for the regulation or
prohibition of the introduction into, or transportation through, the
respective States of cattle affected by infectious diseases. Many
of the States have commissions whose duty it is to make exami-
nation and to prohibit the importation of these cattle. These
commissions usually have full power to enforce their regula-
tions. Statutes of this character are constitutional, being for the
general good. They can not be avoided on the ground that they
are an infringement of the right of a citizen to acquire, use, and
dispose of property. They come within what is called the
police power of the State. Under this power the destruction of
diseased animals is provided for, and the sale of animals affected
by contagious diseases is prevented or made a misdemeanor and
punishable as such, The reader should examine carefully the stat-
utes of his own State upon this general subject,

7. Sale of Diseased Cattle. Apart from any statute, if one
sells diseased cattle, fraudulently representing them to be free from
disease, or concealing the fact that they are unhealthy and dan-
gerous, he will be liable to the purchaser for the consequences.

Whenever property is sold for any purpose, especially if it be
sold for food, the seller in making false representations concerning
it will be held to have accepted the consequences that may reason-
LAWS CONCERNING FARM ANIMALS. 2%

 

ably result from such sale, and he will be held to a strict account-
ability.

8. Brands and Ear Marks. There are statutes in the west-
ern States generally providing that the owner of stock may adopt
any distinctive mark or brand for his cattle, and such mark when
properly adopted becomes his special property and can not be used
by another without grave liability. Such marks must be recorded
with some official, usually the county clerk, and they become evi-
dence of ownership when branded upon cattle. Upon the sale of
the cattle the mark must be counter-branded, which indicates that
the transfer from the original owner has been valid.

The alteration of marks or brands upon cattle for the purposes
of theft is made a serious offense.

9. The Law as to Sheep. Sheep are protected by the stat-
utes in most of the States from the ravages of dogs. It is made
lawful for their owners to kill any and all dogs caught in the act
of worrying them, and the owners of such dogs are made liable,
not only for the actual damage done, but often for a much larger
amount, inflicted as a sort of penalty for the harboring of such dogs.
This matter was touched upon under the sub-head “ Dogs,” found
on page 160, When several dogs, belonging to several owners,
unite in doing mischief to sheep, they are not jointly liable for the
injury, but each is liable for the injury committed by his own dog.
(2 Con., 206.) In determining what damage was caused by each
the presumption is, in absence of proof to the contrary, that one
dog did as much damage as another (20 Barb., 479), though
the jury may consider the size, ferocity, and habits of each dog.
(35 Barb., 303.) There are some cases holding that each owner
is accountable for the whole damage caused by a sheep stealing
expedition in which his dog is engaged. (63 Penn. St., 341.)

10. Diseases in Sheep. A person owning sheep affected
with any contagious disease must see to it that the disease is not
communicated to other sheep. If he knowingly sells a diseased
sheep, concealing the fact of the disease, he will be liable not
merely for the difference in value of the diseased sheep and a
healthy one, but for the other damages that necessarily follow
from it, which, if the disease were communicated to the whole
flock of the purchaser, might be very large. (13 Wend., 518.)
There are laws for the protection of sheep from infectious diseases
236 MANUAL OF THE LAW.

 

similar to those for the protection of cattle. The reader should
acquaint himself with the statutes of the several States.

11. Taking Sheep on Shares. When sheep are “ taken on
shares” the question of the ownership of the increase may become
important. The general rule is, that the increase of animals
belongs to the person who owns the mother, but this is not the
case when sheep are pastured, as they sometimes are, for a certain
proportion of the lambs and the wool. In such case the owner
and the agistor are tenants in common of the increase and of the
wool until it is divided. Until the respective share of each is set
apart to him they own the whole incommon. The right of the
agistor to his proportion, however, may depend upon the fulfill-
ment of his contract. The condition, where none is expressed,
upon which he is entitled to a share of the increase, is that he will
exercise reasonable care and diligence in his keeping of the sheep,
and he is held to a fair showing before any title vestsin him. (16
Vt., 382.)

12. On the Sale of Wool. Because of the peculiar manner
in which wool is packed it is difficult for the purchaser to make a
thorough examination of it at the time of sale. The rule caveat
emptor does not apply with so much strictness in sales of this kind
asin others. The purchaser is not required to lay open each pack-
age to its center, but is allowed to rely upon the statements made
by the seller. Such statements amount to a warranty; and if he
remains silent when he possesses information which he ought to
disclose he will be responsible for damages. (43 Cal., 110.)

13. Law as to Bees. Bees have become the subject of very
important property rights, the industry of keeping them having
grown to one of great proportions. When domesticated, the ordi-
nary rules applicable to personal property apply to them. They
are property and as such are taxable the same as other property.
If they swarm and escape from their owner they are still his if he
pursues them with reasonable promptness. (15 Wend., 550.) As
to whether he would have the right to enter upon another’s land
to claim them seems to be established the same as in the escape of
other domestic animals. (15 Wend., 550.) Judge Cooley says:
“Possibly it might be held—as we think it certainly ought to be—
that the owner of the bees might enter to retake them if he could
do so without doing injury to the land, but the law would give
LAWS CONCERNING FARM ANIMALS. 237

 

him no implied license to cut a tree for the purpose.” (Cooley
on Torts, p. 435, n. 5.)

As to wild bees the rules regarding wild animals are modified.
Generally no one owns a wild animal until it has been subjected
to the control of man. But bees have a local habitation usually in
atree and consequently are, in a sense, under the control of the
owner of the tree. The right to cut the tree rests solely in the
owner of the soil, and therefore such property as wild bees may be
the subject of rests in him. Though bee-hunters may claim a
right to the tree on the part of the first finder, the law does not
recognize any such right, and one who enters without permis-
sion to cut it will be a trespasser. (20 Johns, 75.)

The owner of bees should not hive them so near the highway
as that they will be likely to sting horses or other animals pass-
ing. I£ there they become irritable, and the owner knows it, and
they do damage to a passer by, the owner will probably be liable.
(8 Barb., 630; 24 Mo., 199.)

14. Law as to Hogs. The general principles applicable to
domestic animals apply also to hogs. If known to be diseased
when sold, the seller is obliged to make known the fact to the pur-
chaser, and if he does not do so he will be liable for all the dam-
ages caused. (14 Allen,20,) But where hogs and other domestic
animals are sold without an express warranty the buyer takes
them as they are. If he has an opportunity to examine them he
will be held to take his chances on losses which may result from
their being unsound, provided there is no fraudulent concealment
of facts which render them worthless or dangerous. The rules
governing the matter of trepasses by hogs are touched upon in
the chapter on Trespasses. At the old common law a hog found
trespassing might be killed damage feasant, but this has passed
away with other ancient and harsh laws and has been replaced by
statutory methods of obtaining summary relief in the several
States.
CHAPTER XXVIII.

PASTURING ANIMALS.

 

x. General Rule Applicable to the 5. Statutory Lien.

Case. 6. Trespasses by Animals Pastured.
2, The Agistor is not an Insurer. 7. Agistor can not use Animals Pas-
3. Duty of the Agistor. tured,

4. Has no Lien at Common Law.

The custom of taking horses and other domestic animals to
pasture is so common in many parts of the country that the liabil-
ity of the farmer engaged in this should be understood.

1. General Rule Applicable to the Case. One who takes
animals to pasture for a certain price is what is called in lawa
bailee for hire or custody, and he falls within the general rule
applicable to bailments. His contract with the owner of animals
is that he will give them that care and attention which their value,
liability to injury, etc., require. He is bound to use ordinary dili-
gence, and he must make good all losses which result from both
gross and ordinary negligence. One who takes animals to pasture
is called an agistor of them, and the term having this definite sig-
nificance will be made use of here.

2. The Agistor is not an Insurer. While the agistor must
bestow upon the animals entrusted to him a degree of care com-
mensurate with their value and their likelihood to be injured, and
while he is liable for the injuries which result from a failure to use
such care, he is not an insurer of them. If they stray away from
his premises, or are stolen, or injured through no fault of his, the
loss must fall upon their owners.

3. The Duty of the Agistor. As to what will amount to
the care required of one who takes animals to pasture, the rule is
PASTURING ANIMALS. 239

 

that it must be such care as a prudent person would give to his
own animals of a similar character and under similar circum-
stances. The rule goes further than the maxim laid down by the
moralists, that “he who undertakes another’s business, makes it
his own”—that is, agrees to bestow the same care and attention
upon it that he does upon his own, for he may be a careless and
improvident person and habitually give to his own affairs a less
amount of skill and care than is required. He must exercise the
care of a prudent man, and he must possess such skill and knowl-
edge of the business as will enable him to doso. He need not
necessarily be a veterinary surgeon, but he should understand the
habits and needs of the animal, and possess and exercise the ordi-
tary common sense of a good farmer. Among the instances of
negligence for which a liability would arise, are over stocking of
land so that proper pasturage for all the animals is not provided,
failure to provide water in constant and sufficient quantities, allow-
ing the fences to become insecure or to remain out of proper
repair, negligently leaving the gates open so that the animals stray
and are lost.

4. The Agistor has no Lien at Common Law. At com-
mon law there is no lien given to the one who pastures animals.
The agistor has no right to keep the beasts until his claim for
pasturage is paid unless there is some local statute authorizing it.
Where a person is obliged, by law, to do certain things, upon or
about the property of others, he has a lien upon such property,
that is a right to keep it until his legitimate charges are paid.
Thus common carriers, inn-keepers, farriers, and the like, had a
lien because they were bound in their respective lines to serve the
public, but an agistor is not required to take in the animals of any
or every one that comes along; he can pasture only such animals
as he pleases. Nor can he claim a lien on the ground that his
skill and labor have added to the value of the property; he has
therefore no lien for the animals’ pasture, but must look solely to
their owners for his pay.

5. Statutory Liens, But the statutes of some of the States
have given a lien to agistors. The statutes of Michigan provide
that “whenever any person shall deliver to # ** * any person
any horse, mule, neat cattle, sheep, or swine to-be kept or cared
for, such other person shall have a lien thereon for the just value
of the labor and skill applied thereto by him, and for any materi-
240 MANUAL OF THE LAW.

 

als which he may have furnished for the keeping and care of such
animals, and may retain possession of the same until such charges
are paid.” The additional expenses occasioned by the keeping of
the animals after the lien has accrued constitutes an additional
lien under the Michigan statute. (Howell’s Statutes §§ 8399 and
8407.) The statutes of other States will be found to contain
somewhat similar enactments.

6. Trespasses by Animals Pastured. When animals which
are out at pasture escape from their inclosures through the negli-
gence of the agistor and trespass upon adjoining lands and there
cause injury, the injured party could at common law recover dam-
ages for such injury from either the owners of such animals or
from the agistor. The statutes of many of the States, and the
rulings of American courts, have established the rule that the
action lies only against the agistor, or that when the owner of the
animals is proceeded against he is entitled to recover from the agis-
tor the amount which he has been obliged to pay if the trespass
can be traced to any neglect on the latter’s part to use the care
required of him.

4%. Agistor Can Not Use Animals Pastured. Of course in
the absence of an agreement, the one who takes animals to pas-
ture has no right to put them to work, though if a horse required
a certain amount of exercise it would be proper to give it to him.
This would not extend to using him for plowing or other farming
purposes, and if so used and injured thereby the farmer might be
liable for his full value. (46 N. Y., 490.)
CHAPTER XXIX.

HIRING OF ANIMALS,

1. kxights and Duties of the Owner. 4. Rights and Duties of the Hirer.
2. The Owner Warrants Title. 5. Borrowing Animals.
3. Abuse of Hired Animals.

It is not uncommon in all communities to let out animals for
hire. This is the principal business of livery stable men and is
not an unusual transaction among farmers. It will be well there-
fore to learn something of the law respecting such transactions.

1. Rights and Duties of the Owner. In the hiring of ani-
mals it is the duty of the lessor, to him who is to have the use of
the animals, to deliver them at the time agreed upon, in proper
condition for the contemplated use, with suitable appendages, such
as harness, etc., for the service intended, and to refrain during the
time that the hirer is to have the animals, from doing any act
which will interfere with the use and employment of them. If
the animal is not in a proper condition for the use required of him
the hirer is not bound to take it, and if after being taken the owner
sells it or allows it to be attached or in any way taken from the
hirer, it is a violation of the contract and the owner is responsible
for the damage. The owner must see that he loans only an ani-
mal fit for the service required. If he loans a vicious or runaway
horse and injury results without fault of the hirer the owner must
not only stand the loss but pay for all the damage done.

2. Owner Warrants Title. It follows that the owner war-
rants the title and the right of continued possession to the hirer,
but he warrants only against the rightful and legal claims of third
persons and not against the acts of any wrong doer who may dis-

turb the hirer’s possession,
242 MANUAL OF THE LAW.

 

3. Abuse of Hired Animals, But should the hirer greatly
abuse the animal hired, or otherwise violate the terms of the hiring,
it may give the owner the right to terminate the contract and to
reclaim the animal at once. The owner will of course have an
action for the injury resulting from any cruel treatment or negli-
gent use of the animal by the hirer, but there are authorities hold-
ing that any improper use or abuse of the animal will of itself
terminate the contract of letting and give the owner the right to
retake the animal, if he can do so peacably. It will at any rate
give him the right to maintain an action for its recovery. (12
Pick., 135; 3 id., 492.)

A Minnesota case holds that where a horse was overdriven that
the owner was not only authorized to go and retake it, but that he
could recover all his expenses in going to the place where the
horse was and of bringing it home. (13 Minn., 335.)

4, Rights and Duties of the Hirer. It is the duty of one
who hires animals to use them as a prudent man would use his own
under the circumstances. He must provide them with suitable
and sufficient food, shelter, and care during the time he has them
unless there is an express understanding otherwise. If he does
this his obligations will be discharged, he will not be responsible
for damages resulting from accidents, or injuries, or illness of the
animals, or any other cause. The expenses involved in the ordi-
nary keep and care of the animals must be met by the hirer. But
extraordinary expenses which are incurred by any inevitable acci-
dent or sickness of the animals must be paid by the owner. If,
for instance, a livery horse should fall sick without fault of the
hirer, the expenses of caring for him would fall upon the owner,
and if paid by the hirer may be recovered back. So, too, if the
animal is stolen the rule is the same, if there is no negligence or
lack of the care of a prudent man, the loss falls upon the owner.
The hirer does not insure the safe return of the animal, but only
agrees to take that care of it which a prudent man would of his
own.

It is the duty of the hirer to return the animal at the time agreed
upon, or failing in this to show that it is lost or delayed by some
means which the care of the prudent man could not have pre-
vented.

5. Borrowing Animals. There is a distinction between “ hir-
ing” and “borrowing” animals. The borrower is held to a
HIRING OF ANIMALS. 243

 

higher degree of care and responsibility. If the loan is made
gratis, the borrower, while he does not become an insurer, must
see to it that the animals are treated with the highest degree of
care. He must not put them to any other use than that agreed to
by the lender (5 Mass., 103), nor should he allow third persons
to have the custody or control of them.

The lender, however, must not be too careless in lending his
property. If he should loan a spirited animal to a boy, or toa
person whom he knows to be incapable of handling it, he must do
it at his own risk.
CHAPTER XXX.

LANDLORD AND XZENANT.

1. The Importance of the Subject. 9. What Alterations Tenant May

2. Leases of Land. to. Collecting Rent.

3. The Duties of the Landlord. 1x. Landlord’s Title Can Not be

4. Landlord Must Pay the Taxes. puted by the Tenant.

5. The Rule as to Repairs. 12. Tenant Must Guard the Property.
6. Repairs of Farm Property. 13. What the Tenant May Remove.
7. Repairs of Fences. 14. The Termination of a Tenancy.

8. The Tenant’s Duties.

1. The Importance of the Subject. There is hardly a busi
ness relation more frequent, and hence more important, in the
modern community than that of landlord and tenant. This rela-
tion is created by a contract, either express or implied, between
the parties. It is implied whenever one man owns the land and
another is in possession of it by permission. The law, in such case,
presumes that the one is the tenant of the other, whether there is
any agreement to that effect or not. The relationship is said to be
express whenever there is a contract regarding the matter between
the parties.

2. Leases of Land. This contract is called a lease; it is a sort
of a conveyance either for a certain number of years, for life, or
at the will of one of the parties. The lease is usually made on
condition that certain money, called rent, shall be paid by the per-
on taking the lease, though payment of rent is not an essential part
of the contract. Leases may be written or they may be verbal,
that is by mere word of mouth, Verbal leases, however, are valid
only where premises are leased for a short time. The statute of
frauds of most of the States provides that “no estate or interest
LANDLORD AND TENANT. 245

 

in lands, other than leases not exceeding a term of one year, shall
be created, granted, assigned, or surrendered, unless by act or
operation of law, or by a deed of conveyance in writing subscribed
by the party granting, etc.” A verbal lease, then, for more than
one year is void, and as the lease is void so an agreement to make
such a lease is void, unless the agreement is in writing, conse-
quently it will not be safe for one to depend on a verbal promise
to lease for more than a year, as he will be without remedy if
after having gone to expense and trouble, the person who prom-
ised him the lease declines to make it. Leases from mouth to
mouth and for one year may be made verbally and, though noth-
ing is said except that the tenant shall occupy and shall pay a cer-
tain rent, all the mutual obligations and rights belonging to the
relationship of landlord and tenant at once arise. Where the
lease is for more than a year one of the appended blanks (see
index of forms) may be followed, and when a promise to rent
for more than a year is made it should be done in writing, by the
form given further on. The questions most commonly arising
between landlord and tenant, are those as to the duties of the land-
lord and the mutual rights between the parties. It will be well
here to determine what the landlord must do in connection with
the premises, and what things must be done by the tenant.

3. The Duties of the Landlord. It is the duty of the land-
lord to see that his tenant has the quiet enjoyment and possession
of the premises. By the mere act of leasing them he has assumed
to own them, and his right to collect rent depends on the undis-
turbed possession of the premises by the tenant. If the tenant is
put off by any person having a valid claim on the premises, that of
course terminates the relation. (56 Ill., 417.) Of course a mere dis-
turbance of the tenant by a trespasser, or the act of any stranger to
the title, will not relieve the tenant from payment of rent; it must
be a disturbance by one who has a superior title to the landlord.
If the landlord willfully enter upon the land and expell the tenant
from even a small portion of the premises, it has been held to
relieve the tenant from all further payment of rent, though he
continue in possession of the residue.

4. Landlord Must Pay the Taxes. As the landlord agrees
that the tenant shall have quiet enjoyment of the premises it
becomes his duty to pay the taxes and lawful assessments in order
246 MANUAL OF THE LAW.

 

that the tenant’s possession may not be disturbed; and if the ten-
ant is obliged to pay out money for this purpose to protect his
quiet possession he may deduct it from the rent due. It is not
unusual for the tenant to agree in the lease that he will pay the
taxes; in which case, as in any other, where the tenant agrees to
assume part of the landlord’s duties, he must do so, The duties
here referred to are those which the law imposes in the absence
of an agreement by the parties. A tenant for life, however, is
bound to pay the taxes.

5. The Rule as to Repairs. As to repairs, the rule is that
unless the landlord binds himself by an agreement to make them,
the burden of repairing will fall upon the tenant, and if the prem-
ises get out of repair, or even burn down, the rent may be col-
lected by the landlord. Even if they were insured in favor of the
landlord the tenant can not compel him to use the insurance money
for rebuilding. The statute of some of the States, including New
York, have changed this rule, and have provided that the land-
lord must keep the premises in repair, but there is no such pro-
vision in Michigan. As in other cases the parties may make such
agreements in their leases respecting repairs as they may see fit.
And if the landlord assumes the duty, and fails to perform it, it is
said that the tenant may deduct from his rent as much as he has
been compelled to pay out for such repairs as the landlord agreed
to make. In order, however, to do this he must have given due
notice to the landlord of the necessity for the repairs. Where the
tenant specially covenants to repair, he is obliged to do so, even to
the extent of rebuilding the buildings should they burn down, and
he is in any event required to repair such defects as are occasioned
by his own negligence, and to return the premises at the expiration
of the lease in as good a condition as he received them, ordinary
wear and tear excepted. In making a lease, the parties should
come to a definite understanding regarding this matter of repairs,
and should have the agreement concerning it fully written out in
the lease.

6. Repairs of Farm Property. In the case of agricultural
leases the tenant’s duty to repair extends only to the dwelling
house. In the absence of any agreement, or any local statute
upon the subject, the tenant must keep the house in repair, but is
not obliged to repair the barns, stables, other buildings, nor fences.
Of course he must use the farm in a husband-like mauner, and
LANDLORD AND TENANT. 247

 

must repair the damage resulting from his not doing so, but that
is all. The importance of this subject of repairs rests largely in
the fact that if an innocent person is injured by reason of the fail-
ure to repair the premises, a liability for such injury rests upon the
person whose duty it was to repair. If, for example, a tenant
fails to repair a warehouse, or store, or other building he had
rented, and they should fall down, or a chimney should topple
over, and a passer-by should be injured, the tenant might be liah'-
for the injury unless the landlord had agreed to repair.

47. Repair of Fences. As stated, the obligation to repair the
out-buildings and fences of a farm rests with the landlord; but
with respect to division fences the statutes of Michigan and other
States provide that the respective occupants of adjoining lands shall
maintain the division fence between them in equal shares so long
as both parties continue to improve the land. If the occupant hap-
pens to be atenant this obligation will fall upon him. As an
occupant he will have to build his share of the fence, but he will
have a claim upon his landlord for the expense thereof if there is
no agreement in the lease that he shall maintain the fences.

8. The Tenant’s Duties. The tenant of farm property usu-
ally agrees in his lease as to the manner in which he shall use the
farm, the course of cropping, the amount of manure, the num-
ber and kind of stock to be fed there, etc. All this is generally
provided for in the lease itself, but if nothing has been said con-
cerning this the tenant impliedly promises upon taking the farm
to use it in a husbandlike manner. As to what is a “ hushandlike”
use of land depends upon the custom of the community, character
of the land, etc. It is such a use of land as a good, prudent farmer
would put his own land to. In Dakota a husbandlike use of land
might permit its being sown to wheat continuously for a series of
years, in New York three, or even two, continuous crops might
be considered as wasteful of the land’s fertilities. The tenant
must not commit waste, as was fully explained in the chapter
upon that subject, see page 138. He must pay the rent provided
for in his lease, promptly and strictly in accordance with his
agreement. No accident to the property or misfortune to himself
will relieve him from this obligation. Though the land should
be rendered useless by unavoidable accident of fire, or flood, or
tempest, or the invasion of the public enemy, he will still be liable
upon his promise to pay the rent. Every tenant should therefore

18
248 MANUAL OF THE LAW.

 

provide in his lease for a suspension of the rent during the time
the premises are untenable by reason of any of these causes. The
only thing which will relieve the tenant from this duty is his being
evicted or put out by some one having a superior title, or having ~
his quiet enjoyment of the premises molested through the fault of
the landlord. An agreement is sometimes inserted in the lease
that the tenant shall insure the premises. Without such an agree-
ment he is under no obligation to procure insurance, though it
might be prudent for him to do so for his own protection. The
tenant often agrees in the lease not to assign or sub-let the prem-.
ises without permission of the landlord. In the absence of such
an agreement he may'do so, but he will still be liable for the pay-
ment of the rent if the sub-tenant does not pay it. It is the ten-
ant’s duty also to put the premises only to the uses contemplated
by the letting. It is customary to insert special agreements as to
this. In the absence of any such agreements the tenant may put
the premises to any use in keeping with the general object of
the letting, but if he should put them to any other use, or to any
illegal or immoral use, it will have the effect of terminating his
lease.

9. What Alterations the Tenant May Make. The tenant
has no right to make any unwarranted alterations in the premises,
or to change or to add to them in any manner which will injure
the landlord, but he may put such new structures, or improve-
ments, on the property as his business may demand, provided he
does nothing to injure or impair the value of the premises. A
farm tenant may make such slight changes in the way of fencing,
or putting up barns or sheds, as his needs may require, but he
could not pull down a building because he had no use for it, or
because it was in his way, or meddle in any other manner with
the existing state of things so as to permanently change the nature
of the property, or make it impossible for him to restore the prem-
ises to their original condition at the expiration of the lease.

10. Collecting Rent. The old method of collecting rent
where it was not paid when due was by distress. By this pro-
cedure a landlord seized the tenant’s chattels, or goods of any kind,
and held them for a specified time; if the rent remained unpaid
he then sold them and applied the proceeds in payment of the
debt. This method has been abolished by statutes in Michigan
and in most of the States, though it still, in effect, exists in some of
LANDLORD AND TENANT. 249

 

the New England and eastern States. The modern tendency is to
place a rent debt on the same footing as other debts, and to pro-
vide only those methods for collection that are applicable to all
debts. In Michigan the statute provides that if the tenant neg-
lects or refuses, for seven days, after demand for possession of
the premises, made in writing, to deliver up the possession of the
premises or to pay the rent due, the landlord may recover the pos-
session of the premises and judgment for the rent due in an action
before a circuit court commissioner.

11. Landlord’s Title Can Not be Disputed by the Tenant.
When a person rents property from another he recognizes such
other as his landlord and he is precluded from disputing the title.
This rule is rigidly enforced and it extends to a tenant who holds
over after his time has expired, as well as to all under tenants,
assignees, and all other persons claiming under the lease.

12. Tenant Must Guard the Property. A tenant of farm-
ing lands is bound to protect the property from injury the same as
though it were his own. While he is not an insurer against
casualities, he still agrees to exercise that care over the property
which a prudent man would over his own. The landlord having
no control over the premises himself may look to his tenant to
make good all injuries to the premises, whether those injuries were
caused by the negligence of the tenant or by a stranger. In fact
the only injuries to the premises which the tenant is not liable for
are those which result from the act of God, like storms or floods,
by the acts of the public enemies, or of ordinary wear and tear.

18. What the Tenant May Remove. When the tenancy
has expired and the tenant is about to move away, he may take
with him certain fixtures which he could not remove if he were
the owner and had recently sold the land. In the chapter on
fixtures it was explained that anything so fastened to the soil as to
become a fixture was regarded in law as a part of the soil, and
could not be removed by the seller on a sale of the premises. It
was there also explained that, as between landlord and tenant those
fixtures which were put in by the tenant for the purpose of ena-
bling him to carry on a trade might be removed. The privilege,
however, has not been extended to the tenants of farm lands to
remove those fixtures which have been erected for agricultural
purposes. It is difficult to perceive why farm tenants should not
be upon the same footing with trade tenants, but the distinction
250 MANUAL OF THE LAW.:

 

has existed, though the tendency of late years has been to ignore
it. (Taylor’s L. & T., § 548.)

14. The Termination of a Tenancy. When a lease has
expired, the lessee, if he does not remove from the premises,
becomes a tenant at will, and his right to possession can not be cut
off except by “notice to quit.” If he has been a tenant from year
to year the law will imply, in the absence of an express agreement,
that the parties have renewed the previous agreement for at least
another year. In this and in all cases where the tenancy is for an
indefinite time, a “notice to quit” is necessary. This notice, the
length of time that it must be given, the manner of giving it, etc.,
is provided for by the statutes of the several States.

15. Rule in Michigan. In Michigan whenever an occupant,
after his right has ended, continues to hold by consent of the
owner, he is a tenant at will. All the tenancies at will may be
terminated by a three months’ notice, and the same for tenancies
at sufferance. The notice to quit may be served upon the lessee.
or upon any person holding under him. The notice should simply
state that the premises are demanded and that the tenant must
remove. A tenant wrongfully holding over for a short time is
not thereby entitled to a three months’ notice to quit. It is only
when the occupant holding over has some equities or rights which
would render it unjust to require him to remove immediately, that
the law gives a right to a three months’ notice. (40 Mich., 285.)
CHAPTER XXXII.

RAISING CROPS ON SHARES.

 

y. Farming on Shares is Not Leas- 3. The Duties of the Crop-

ing. Grower.
2. The Cropper on Shares is Not a 4 How the Crops Shall be
Laborer for Hire. Divided.

It is not uncommon in many parts of the country to farm land
on shares; the owner of the land receiving a portion of the crop
and the farmer the balance. When the relations of these parties
are not such as to make them landlord and tenant there are certain
mutual rights and duties which require notice here.

1. Farming on Shares is not Leasing. When a person
lets out his land on shares for the purpose of having a crop raised
it does not amount to a leasing of the land. The owner still
retains possession, subject to the right of the other party to enter
for the purpose of carrying out his contract.

So soon as the crop is raised and harvested, the right of the
cropper to enter ceases. When the crop upon one portion of the
land is harvested the right of the cropper to enter upon that por-
tion ceases, though he still has the right to enter upon the other
portion. (47 Ill., 344.) The relation of landlord and tenant does
not arise unless the person growing the crop is given the exclusive
possession of the land and pays for it by a portion of the crop.
The distinction is a rather fine one, yet it is important. The
intention of the parties will govern the matter, if the owner simply
intends to allow another person to raise a crop upon his land, and
does not contemplate giving up the full possession and control of
the land, there will be no tenancy created.

fue parties to a contract for raising crops on shares are tenants
252 MANUAL OF THE LAW.

 

in common of the crop while it is growing. Either party may at
any time sell his interest in the crop as he might sell any other
chattel, and it may be seized on legal process unless growing crops
are exempt from seizure.

2. The Cropper on Shares is not a Laborer for Hire.
Nor is one who farms on shares a laborer who receives for his
hire a portion of the crop and the amount of his wages depending
on his own industry. The law regards him as a contractor, hav-
ing full control of his own labor, and not being in any way under
the orders of a master. (49 Ga., 581.) If he does not attend to
his work he may be liable for breach of his contract, but not as a
servant who neglects his duty.

3. The Duties of the Crop-Grower. When a crop is grown
on shares the owner of the land and the cropper, being tenants in
common of the crop, are each entitled to go upon the land, but the
technical possession of the crop, so far as its care, culture, and
protection are concerned, is in the cropper. (17 Cal., 542.) The
cropper must farm in a good, workmanlike manner, and if noth-
ing is said upon this point in the contract he must pursue the
methods customary in the vicinity. (33 Iowa, 24.)

4, How the Crop Shall be Divided. The contract should
specify definitely the respective shares that each shall have in the
crop when it is divided, the method of dividing it, the time and
place of delivery, etc., but if the contract is silent upon all these
points, the land being simply “let upon shares,” the parties will
be held to have contracted with reference to the custom of the
neighborhood in this regard, and they will be bound by that cus-
tom in these particulars, (40 Ga., 511.)
CHAPTER XXXII.

ARBITRATION AND AWARD,

 

1. How to Proceed by Arbitration. 4. The Award.
2. Arbitration Bond. 5. Statutory Arbitration.
3. Duties of Arbitrators. 6. The Method in Michigan,

The law favors any method by which persons may settle their
own disputes. If persons can not agree between themselves as to
the settlement of any difference between them, it is lawful, proper,
and commendable to refer it to arbitrators, and if properly so
referred the parties will be bound as firmly by the decision of such
arbitrators as by the result of a suit at law. Settling a matter in
dispute in this manner is called an arbitration, the finding or the
determination of the arbitrators is called the award.

1. How to Proceed by Arbitration. Having agreed to refer
matters to arbitrators, the first step will be to reduce such agree-
ment to writing; this is called an agreement of submission. It
should state the names of the arbitrators selected by each party,
and how they are to settle points upon which they are unable
to agree. This may be done by empowering them to call in
another person, chosen by themselves, or to choose an umpire to
act in their stead when they fail to agree. It should distinctly
and definitely set forth the particular controversies desired to be
settled, and how and by whom the expenses of the abitration are
to be met. If this latter point is not set forth the arbitrators are
entitled to look to the prevailing party to pay them the same fees
that are allowed to referees in courts of record. An agreement
to arbitrate may be revoked by either party at any time before an
award is made. Death of either party previous to the award
works a revocation,
254 MANUAL UF THE LAW.

 

2. Arbitration Bond. The agreement of submission should
be supplemented by an arbitration bond, executed by each party,
and delivered to the other after the manner set forth in the form.
(See Part III.) If no bonds are given the arbitration is still
binding, though if the failing party is irresponsible there might be
difliculty in enforcing the award.

3. Duties of Arbitrators. The arbitrators must strictly con-
fine themselves within the powers conferred by the submission.
Only the precise controversy submitted to them should be deter-
mined, If the award goes farther it will be void, unless the portion
which exceeds the submission can be separated without affecting
the merits of the rest, in which case that portion only will be void.
The arbitrators must appoint a time and place for the hearing,
must take the proper oath before the proper officer before pro-
ceeding to take testimony, and must proceed in all matters in
accordance with the local statute upon the subject. All the arbi-
trators must meet and hear the allegations and proofs of the par-
ties, They may compel the attendance of witnesses, usually by
summons from a justice of the peace.

4. The Award. The award or finding of the arbitrators
should state clearly and distinctly the determination arrived at. It
should settle all the matters submitted to the arbitrators, and be
complete and final so as to terminate the controversy. It should
be signed and sealed in duplicate and delivered to each party.

5. Statutory Arbitration. The statutes of most of the
States have regulated this matter of arbitration and award, and
have provided that the award may be brought into court and judg-
ment entered thereon. It will be best to follow the statutory
method where one is provided, though if it is not followed the
proceeding would still be valid and binding in most States, though
ne judgment can be entered on the award.

6. Method in Michigan. In Michigan all disputes, excepting
those affecting the title to real estate, may be referred to and set-
tled by arbitrators, And a claim to an interest in lands for a term
of years, or for a year or less, as well as controversies respecting
the partition of land between tenants in common, or concerning
the boundaries of lands, may also be submitted to arbitration.

The agreement to arbitrate must be acknowledged the same as
adeed. The arbitrators must appoint a definite time, as well as a
ARBITRATION AND AWARD. 255

 

place of hearing. The arbitrators must be sworn to faithfully
hear and examine the matter in controversy. They have power
to administer oaths to witnesses. The witnesses may be com-
pelled to appear by subpcena issued by any justice of the peace.
An award made by a majority of the arbitrators is valid, unless
the submission required the concurrence of all of them. If the
award is not paid or complied with it may be filed with the clerk
of the court, designated in the submission, any time within a year
after the making of it. Such award may be affirmed by an order
in open court, unless it be vacated or modified. It may be vacated
upon the ground

1, That it was procured by fraud or corruption.

2. That there was evident partiality shown by the arbitrators.

3. That the arbitrators were guilty of misconduct in refusing to
postpone the hearing on sufficient cause shown, or refusing to
hear material evidence, or in any other way prejudicing the rights
of a party.

4. That the arbitrators exceeded their powers, or imperfectly
executed them, or made an award that was not mutual, final, and
definite.

[he award may be modified by the court

1. When there is a miscalculation of figures, or mistake in the
description of a person or property.

2. When the arbitrators have awarded upon a matter not sub-
mitted to them.

3. When the award is imperfect in matter of form not affecting
the merits.

When an award is affirmed or modified the court renders judg-
ment in favor of the party to whom the award was given. If the
award was a sum of money, or damages, the judgment is that he
recover the same. If it ordered any act to be done, the judgment
is that the act be done according to the order.

Neither party has power to revoke a submission made under
the statute without the consent of the other, and if either party
fails to appear before the arbitrators after notice, they may deter-
mine the matter upon the evidence produced by the “ther party,
See Howell’s Statutes, §§ 8474-8496.
CHAPTER XXAIIT.

THE DESCENT OF REAL PROPERT?.

In the preceding chapters the rights and duties of the average
citizen have been considered specially with reference to the acquire-
ment and use of land. It will now be interesting to examine as
to how land may be disposed of, and particularly to see just what
will become of a man’s property when he dies.

With respect to the sale of land, what was said early in the
book in Chapter III in regard to the purchase of it will be equally
applicable, but the descent, or inheritance, of real property remains
to be more fully considered.

1. The Common Law as to Descent. By the English com-
mon law all of the landed property of a person goes, upon his
death, to his oldest male child. This is called the law of primo-
geniture, and is in force in England at the present time. Not
being conformable with the genius of the American people, this
law has not been recognized in this country, In a spirit of equal-
ity our law seeks to divide property equally among the children
or other heirs, where there has been no disposition made of it by
will,

2. Statutes of Descent. The common law, as above set forth,
not being applicable to this country, it has been necessary in each
of the States to enact statutes providing for the descent or inherit-
ance of real property. While these statutes are not identical in all
their provisions, there is a general similarity in their main features.
The following general statement will be found of interest to the
casual reader, while those who are specially and personally inter-
ested must, for details, examine the statutes of their respective
States,
DESCENT OF REAL PROPERTY. 357

 

The rules or canons of descent of real property, as they are in
force in the various States, may be set forth substantially as fol-
lows:

First, If a person dies intestate, that is, without a will, and is
possessed of real property, it will go to his children and to the
issue of any deceased child, by right of representation, in equal
shares, To illustrate: A man dies intestate leaving two children
living and three grandchildren, the issue of a third child who is
dead. His real property will be divided into three equal shares,
each of the two children will take one share, and each of the
grandchildren will take a third of the remaining share.

Second. When the intestate leaves no living children, if there is
issue of deceased children, his real property will go to such issue
in proportion to their right of representation. That is to say, such
issue will take in equal shares whatever portion their parents
would have received if living. To illustrate: A man dies intes-
tate leaving one grandchild, the issue of one deceased son, and
seven great-grandchildren, the descendents of his only other child,
deceased. His real property will go half to the grandchild and
half to the seven great-grandchildren by right of representation.

Third. Tf the intestate leaves no issue, then the real property
goes to his father.

Fourth. Tf the intestate leaves no issue, and no father, his real
property goes to his mother, his brothers and sisters and to the
issue of any deceased brothers and sisters. This, however, is not
the rule in many of the States, for the husband or wife of the
deceased at this juncture is sometimes given a share.

Fifth. Vf the intestate leaves no issue, nor father, nor brother,
nor sister, his real property goes all to the mother, or in some
States to the mother and widow.

Sixth. lf the intestate leaves no issue, nor father, nor brother,
nor sister, nor widow, his real property will go to the next of kin
whoever they may be. *

Seventh. If the intestate leaves a widow and no kindred, his
real property goes all to the widow, or if the intestate is a married
woman and leaves no kindred, her estate goes to the husband.

Eighth. lf the intestate be a woman, her real property will

* To ascertain who is the next of kin is oftentimes a very difficult matter, In

Cooley’s Blackstone’s Commentaries, book two, page 203, may be found a table of
consanguinity with rules for determining title by descent,
258 MANUAL OF THE LAW.

 

descend as above indicated, except in those States which still
recognize an “estate by the curtesy,” the husband, if a child has
been born, takes the rents and profits of the whole, or a portion of
the property during his life. *

Ninth. If the intestate leaves no widow, or husband, and no
kindred, then the real property goes to the State.

It must be remembered that the foregoing is only an outline of
the general provisions respecting the descent of real property in
America. It does not attempt to state the law accurately with
respect to any single State.

3. The Widow’s Right of Dower. The rules of descent of
real property are all subject to the widow’s right of dower, which
is the right to the use of one-third of her deceased husband’s real
property during the remainder of her life. Under the statutes of
all the States she has this right, nor can she be deprived of it
except by her own free act. It can not be taken from her by her
husband even though he give her other land instead. If he wills
her property in lieu of dower, she need not so accept it unless she
chooses to do so. If he wills her property and does not specify
that itis in lieu of dower, she will take that property and her
dower interest beside. But the dower interest is only a life estate,
and upon the death of the widow the property goes to the heirs
the same as if there had been no widow.

Dower does not extend to all the interests in land of which a
man may die possessed. It does not attach to an estate, held in
joint tenancy, for that goes to the survivor, nor does it attach to
partnership lands purchased by partnership funds for partnership
purposes. (4 Metc., 537.) A mortgage given for the purchase
money of lands, though not joined in by the widow, takes prece-
dence of her dower rights (15 Johns., 458), and in some of the
States dower will be defeated by a sale of lands on execution for
the husband’s debts (8 Penn. St., 120; 22 Wend., 498,) and it is
generally cut off by a sale of lands for non-payment of taxes. (8
Ohio St., 430.) Likewise, an exercise of the right of eminent
domain during the life of the husband will cut off the right of
dower though no compensation be made therefor. And the same
is true where lands are dedicated by the husband for any public
use. (3 Ohio St.,24; 9 N. Y.,110.) Upon the death of the hus-

* The “married woman’s acts,’’ however, have had the effect of abolishing the
** estate by curtesy”’ in many of the States, as was shown on page 16,

 
'

DESCENT OF REAL PROPERTY. 259

 

band the dower lands are set apart to the widow by commissioners
acting under the authority of the probate or surrogate courts.

4, Homestead Laws. These are provisions designed to secure
to the widow and minor children of a deceased person the undis-
turbed possession of the homestead during a certain period. They
usually provide that the home and an amount of land shall be
exempt from execution, and their effect is, in many cases, to set
aside, or to hold in abeyance for a time, the laws of descent of
property above laid down.

5. Megitimate Children. A person born out of wedlock
will inherit from his mother under the foregoing rules of descent,
but he is given no share in his putative father’s estate. If an
illegitimate child die without lawful issue his estate goes to his
mother, or if she be dead, it goes to his relatives on his mother’s
side; but neither the putative father nor the paternal relatives are
given any share in the estate,

When, after the birth of an illegitimate child, his parents inter-
marry, such marriage has the effect of making the child legitimate.
And in some States there is a provision that if the father of an
illegitimate child shall, by writing, in due form acknowledge such
child to be his own, such child shall be considered legitimate and
shall inherit from the father under the rules of descent the same as
though he were born in lawful wedlock.

Posthumous children are considered as living at the death of
their parents, and inherit property accordingly.

6. Advancements. When property has been given to any
child or other descendent by the intestate during his lifetime, and
the intention was to make such gift an advancement in whole or
in part of the share such child or descendent would otherwise
receive, then such gift must be deducted, on the death of the intes-
tate, from the share of such child or descendent.

It must be made clearly manifest, however, that the gift was
intended as an advancement or this rule will not apply. If the
amount of the advancement exceeds the share that the heir would
otherwise have received, he is not required to refund any portion
of it, he simply is excluded from any further share. If the
advancement is less than his share, he is entitled to as much more
as will give him his full share of the estate of the deceased.

All gifts and grants are deemed to be advancements if they are
260 MANUAL OF THE LAW.

 

so expressed in the deeds making them, or if they are charged
in writing by the intestate as advancements, or if they are
acknowledged as such by the child or descendant receiving
them.*

 

*The Michigan reader is referred to Chapter 219, of Howell’s Compiled
Statutes, commencing on page 1503.
CHAPTER XXXIV.

THE DISTRIBUTION OF PERSONAL PROPERTY

1. Administration of Estates. 3. Distribution of Residue.
a. Payment of Debts. 4. Is Administration Necessary,

In the preceding chapter we have seen how the real property
of an intestate is disposed of among the heirs by the operation of
the statutes of descent. It remains to consider what will become
of the personal property of one dying without a will.

1, Administration of Estates. The law provides for the
administration of the personal property of an intestate by proceed-
ings in the probate court. A petition for administration is pre-
sented to the court, and upon the appointment of an administrator
the title to all the personal property vests in him, and such prop-
erty is by him disposed of as the law directs.

2. Payment of Debts. The administrator, out of the per-
sonal estate, must first pay the debts of the deceased. These take
precedence over all other claims and must be first discharged.
The residue is then distributed by the administrator to whoever is
designated by the statutes as being entitled thereto.

8. Distribution of Residue. In general it may be said that
the residue of the personal property of an intestate is distributed
to about the same persons and in about the same proportions as is
real property under the statutes of descent, as set forth in the pre-
ceding chapter. The statutes of distribution of the various States
like the canons of descent, are similar, but not identical, in all their
provisions.

A striking difference between the statutes of descent and the
19
363 MANUAL OF THE LAW.

 

statutes of distribution is that while under the former the widow
takes, during her lifetime, the right merely to use one-third of the
real property, under the latter she takes the full title to one-third
of the personal property. If there be no issue the widow takes
generally one-half, and in some of the States the whole of the
personal property. But the detailed provisions of any particular
State can only be learned by an examination of its statutes. (1.)

4, Is Administration Necessary. If a man dies leaving but
a small estate and having no debts, and there is no question as to
who is entitled to his property under the law, the question may
arise whether it is necessary or important that his estate be admin-
istered upon by the probate court. The proceeding involves some
trouble, expense, and delay, and it is often dispensed with under
such circumstances. But itis safe to say that in almost all cases
it is better that these proceedings be had.

The advantageous results of the probate proceedings are that
the title to the property is fixed in the legitimate heirs beyond any
peradventure, and that all claims which are not presented within a
given time during the proceedings are forever barred and cut off,
thus giving the heir a possession and ownership which can never
be disputed. These steps having been taken there 1s no obstacle
in the way of selling the property, for the most careful buyer need
not doubt the title, and need have no fears that at any future time
some creditor of the deceased may come forward and establish his
right.

This security of title results from the fact that all persons,

 

(1.) The following is the provision of the Michigan statute relating to the dis-
tribution of personal property :

“The residue, if any, of the personal estate shall be distributed as follows: One-
third thereof to the widow of the deceased, and the remaining two-thirds to his
children, or the issue of any deceased child or children, if any there be, except
that if there be but one child, or the issue of such child, living, then to the widow
one-half of such residue, and such child, or the issue thereof, the other half; in
case the deceased shall leave a widow and no children, or the issue of a deceased
child him surviving, then such residue, if it shall not exceed the sum of one thou-
sand dollars, shall go to such widow, and if it exceed the sum of one thousand dol-
lars, such excess shall be distributed one-half to such widow, and the other half to
the father of the deceased, if living; if not, such other half shall be distributed
equally to the mother, and the brother, and sisters, and the issue of any deceased
brother or sister in equal proportions, share and share alike; and if there shall be
neither father, nor mother, nor brother, nor sister, nor issue of such brother or sis-
ter surviving, then such residue shall go to the widow; in any other case the resi-
due, if any, of the personal estate shall be distributed in the same proportions and
to the same persons, and for the same purposes as prescribed for the descent and
disposition of the real estate.” See Howell’s Statutes, Sec. 5847.
DISTRIBUTION OF PERSONAL PROPERTY. 263

whether heirs or creditors, are bound to take note of the proceed-
ings in the probate court, and to establish their claims during those
proceedings, or not at all.

It may be remarked before leaving this subject, that while the
law of the place where the land lies governs the manner of its
descent, the law of the place where the deceased lived governs the
distributien of the personal property.
CHAPTER XXXV.

OF WILLS.

1. Ways of Disposing of Property 7. Avoiding a Will.
8.

at Death. Form and Requisites of Wills,
2. Definition of a Will. 9. Signing the Will.
3. Common Law as to Wills. ro. Witnessing the Will
4. Statutes on the Subject. 11. Form of Attestation,
5. Kinds of Wills. 12, Codicils.
6. Who May Make a Will, 13. Revocation of Wills,

We have seen what disposition the law will make of a person's
property if he dies without leaving a will. If he is not satisfied
with that disposition, he has, if he is of sound mind and disposing
memory, full power to change it in any way he sees fit.

1. Ways of Disposing of Property at Death. The owner
of property can provide for its disposition at his death in three
ways:

1. By deed, to take effect at his death.

2. By gift made in apprehension of immediate death. (But this
applies only to personal property.)

3. By will.

The first two methods are not in very common use, The law
applicable to them does not differ materially from that governing
the general subject of deeds and gifts. A deed to take effect at
death differs only from a common deed in that it does not take
effect till death. A gift made in apprehension of death differs
from an ordinary gift only in this particular, that the recovery of
the donor trom the threatened death revokes the gift. But the
method by will is the safest and best way of disposing of property
OF WILLS. 265

 

at death; because a deed fetters one’s property while he is still
living as it in effect disposes of it at once, and where a gift is made,
all is left to verbal proof and everything is involved in uncertainty.
Where it is possible, therefore, a will should always be made,
unless one wishes his property to take the course prescribed by
law, and. even then it is desirable in many cases,

2. Definition of a Will. <A will is defined to be «the dispo.
sition of one’s property to take effect after death.” The dispo.
sition by deed above referred to takes effect at once, so that the
grantor cannot revoke it, though the possession of the grantee iy
postponed till the grantor’s death. The disposition by gift alse.
takes effect at once, but is liable to be revoked by the grantor’s
recovery.

8. Common Law as to Wills. According to the principles of
the common law, only personal property could be disposed of by
will, The real estate went to the heir-at-law, no matter what the
wishes of its owner might be.

4. Statutes on the Subject. The common law provision
respecting wills being obviously not in harmony with the Ameri-
ean spirit, has been supplanted by statutes in the several States,
which provide in the main that a man may do practically whatever
he wishes with his property, and which regulate with more or less
detail the whole matter of making wills. To determine, therefore,
the exact formalities for the execution of a will, one must look to
the statutes of the State in which the will is to be enforced.

6. Kinds of Wills. Wills are either written, or unwritten.
An unwritten will should never be used if it is possible to make a
written one, for such an instrument is even more uncertain than a
verbal gift of property, for its validity depends not upon any act
ef the testator, but merely upon what he said. At common law
an unwritten will was as valid as a written one, and could be used
for all purposes that written wills could. But the statutes of the
American States limit this privilege to those cases where death is
so immiment as to prevent the making of a written will.

6. Who May Make a Will. In general, a person in order to
make a valid will must possess—

ist, full age; 2nd, freedom of action, and 3rd, a sound mind.

By full age is meant the age required by statute, which is usually
twenty-one years,
266 MANUAL OF THE LAW.

 

By freedom of action is meant that the will must be the will of
the testator, and not simply the registering or writing out by him
of the will of some one else. If the will is the result either of
physical or moral compulsion it cannot be allowed to stand. The
mere fact, however, that suggestions were made and acted on, or
that solicitations were yielded to, does not avoid the will. The
testator has a perfect right to act on suggestions and to yield to

‘solicitations, The question in all such cases is, did he act himself
or was he the mere tool in the hands of another, in short, is it Azs
will?

By “sound mind and disposing memory,” is meant the possession
of sufficient intelligence to act understandingly.

A less degree of intelligence is required to make a will than is
required to make a valid contract. To make a binding contract
the mind must be sufficiently strong to cope with another intellect.
To make a valid will the mind need be only strong enough to
understand the property to be given, and to know its own desires
as to who shall have that property. In making a contract the
weaker mind is the prey of the stronger; in making a will there
is presumed to be no strong mind ready to take such advantage.

Among persons not possessed of sound minds may be mentioned
idiots, drunkards, and insane persons. By idiots is meant persons
entirely devoid of understanding. Persons may have weak minds
and still be able to make wills. If they have some memory and a
general knowledge of their ‘property and a tolerably clear desire
as to who shall have it, that is sufficient.

Drunkards need no definition. As to whether their wills shall
stand depends upon whether, at the time they were made, the
testators possessed sufficient power and understanding to control
their actions. The wills themselves, both in the case of idiots and
drunkards, might throw much light upon the question of their
validity.

By insane persons is meant persons in such an abnormal con-
dition of mind that the reason is either partially or wholly incapa-
‘ble of performing its functions. Insane persons are subject to
delusions, either permanent or temporary, which may or may not
affect their conduct, These delusions may extend to one or to all
subjects. There is no rule by which one’s sanity may be easily
tested. One may be so clearly insane that everybody will know
it. Another may be equally insane on some single subject and his
OF WILLS. 267

 

most intimate friends may never suspect it. Hence it sometimes
happens that a community will be about equally divided on the
question of the sanity of one of its principal members; each basing
his views on what he has seen.

It is not evidence of insanity that a man is odd or queer, or that
he holds views at variance with the prevailing ones. Insanity is
more than an error in judgment. It is a whole or partial dethrone-
ment of the reason. And there is really no single test that can
determine its presence. Those who call themselves experts upon
the subject unfortunately have done much to bring their calling
into contempt. The readiness and ability with which they testify
for the party who employs them, and the hopeless contradictions
of each other in which they invariably become involved, has cast
suspicion on all expert testimony on this subject. The superior
opportunities of friends and neighbors to form an accurate judg-
ment has inclined the Courts to attach more weight to their testi-
mony than to that of experts. The every day ordinary life ofa
man affords really the best means of determining his sanity.

4%. Avoiding a Will. When it is sought to set aside a wil,
some cause legally sufficient to invalidate it must be alleged, and it
must be shown that such cause operated in the making of the will.
For instance, to avoid a will because of the insanity of its maker,
it must not only appear that the testator was insane, but that his
insanity affected the will. Now, the ordinary condition of insanity
is a partial and not a complete dethronement of the reason. The
evidence may show that the testator was insane only on one sub-
ject, or that he was insane only a part of the time. In the former
case the will would be valid if the subject on which the testator
was insane did not influence his will. In the latter it would be
valid if made during a “lucid interval” or period of sanity. Here,
as in the case of persons of weak minds, the will itself will be
important as determining whether the insanity of the testator had
any thing to do with its being made. But it is not in keeping
with our purpose to go fully into this matter of avoiding wills.

8. Form and Requisites of Wills. It is a difficult thing to
make an unobjectionable will. As a rule, good trustworthy legal
assistance should always be secured before attempting it. But if
one is called upon to make his own will, or the will of a neighbor,
under circumstances which will not admit of delay, the following

may be of service:
268 MANUAL OF THE LAW.

 

The will must rst, be written; 2nd, it must be signed, and 3rd,
it must be witnessed.

It may be written either with pencil or ink. Generally no par-
ticular form or arrangement of words is necessary. If the instru-
ment clearly indicates the testator’s desires it will be sufficient. It
will be well for the testator to state at the beginning that it is his
last will, The appended forms illustrate this.

In the body of the will the testator should express his wishes
‘just as accurately and simply as possible, and he had better dispose
of his property in as simple and plain a way as he can, and not
attempt any complications, like the creating of trusts, etc., unless
he has the services of a good lawyer in drawing his will.

There are certain words used in wills which have a peculiar
legal significance.  Bequeath” applies only to personal property;
“ devise ” applies only to real estate. If this expression is used, “I
give, bequeath, and devise my estate and property as follows: that
is to say,” (and then state plainly what shall be done with each
piece of property or sum of money) it will be safe and sufficient.
Words of inheritance should be used in any devise of land, as was
explained in the Chapter on Real Estate, page 13; that is to say
the expression “and his heirs” should follow the name of every
person to whom land is given, unless it is desired to give simply a
life estate.

If the testator has children, and does not provide for them or
make any mention of them in his will, the law presumes they were
forgotten; and it generally, in such cases, gives them the same
share they would have received if there were no will. If the
children have been provided for by “advancements” during the
lifetime of the testator, that fact should be stated in the will.

The testator should always name his executor, though the will
is good without it, as the court will appoint an “administrator
with the will annexed.”

9. Signing the Will. By signing is meant the attestation of
the instrument by the testator’s name. If the name is put any-
where on the instrument, with the intent of signing, it will bes
good signature, unless the statute requires the name to be signed
in some particular place. If the testator is unable to write he may
sign with a mark, or his hand may be guided by another. The
following attestation clause is generally and very properly used:
“In witness whereof I have hereunto signed and sealed this instru-
OF WILLS. 269

 

ment, and published and declared the same as my last will at ....
on the .... day of ...., 1885.” Then follows the signature. No
seal is required.

10. Witnessing the Will. There are three reasons why a
will should be witnessed. 1st, That the instrument may be iden-
tified. 2d, That there may be evidence on the instrument of its
proper execution, and 3d, That there may be persons designated
who can testify as to the testator’s condition, and as to his compli-
ance with requisite formalities,

The will should be witnessed in the testator’s presence, and by
presence is meant both physical and mental presence. That is it
must be when the testator can see the act done, and the testator
must have such a control of his faculties as to know what is going
on. The witnesses should be persons who are competent to tes-
tify. They should not be persons who are to receive anything
under the will. At common law a will so witnessed was void.
Under our statutes such wills are valid, but the witnesses can not
receive their legacies. They should be requested, either actually
or impliedly, by the testator to sign as witnesses. They need not
see the testator sign the will, nor need they read the will, but they
should know, either by his statements or conduct, that he has
signed it and that the instrument is his will. Care should be exer-
cised in the selection of witnesses, for if any question arises as
to the testator’s sanity, or anything of the kind, their evidence
is first to be taken and is very important. Two subscribing wit-
nesses are usually required, and in some States three are required.
It will be best in all cases to have three diginterested persons sign
the will as witnesses,

11. Form of Attestation. Over the witnesses’ names should
be written their attestation, no particular form of words is required
for this, but the following will be found a safe guide:

“On this day of ——, 188—, the above named
signed and sealed this instrument, and published and declared the same to be his
last will; and we, the undersigned, in his presence and at his request, and in the
presence of each other, have hereunto subscribed our names as witnesses,”

All the statutory requirements respecting the execution of wills
should be carefully complied with. A failure in this regard may
render the will void. (1.)

12. Codicils. A will may be changed whenever the testator

 

 

 

 

 

(1.) The Michigan reader should consult chapter 220 of Howell’s Statutes.
270 MANUAL OF THE LAW.

 

desires. It may be done by adding what is called a “codicil,” or
it may be done by revoking the will. A codicil is really a little
additional will, not revoking but only varying the former will in
some way. It must be executed with the same formalities as the
will itself. There can usually be but one will in force, and that is
the last one; but there may be any number of codicils, and all valid.
The changes made by a codicil in the will, or in former codicils,
should be very clearly and distinctly stated, and it will be well
always to state that the former will is expressly confirmed except-
ing so far as changed by the codicil. If the codicil gives a leg-
acy to one who has already received one in the will itself, the cod-
icil should state whether the second legacy is given instead of the
first, or in addition to it. Codicils are sometimes added to wills
for the purpose of stating that some legacy provided for in the
will has been given during the lifetime of the testator as an
advancement. :

13. Revocation of Wills. Wills may be revoked in several
ways, as follows: ist. By an instrument executed for that express
purpose. This instrument should be of the same nature as the will,
and must be executed in the same manner. 2d. By making a sub-
sequent will inconsistent with the former one. So far as the later
will is inconsistent with the earlier one it revokes the earlier one.
But the earlier one will stand so far as it is not inconsistent, unless
there is a clause, as there usually is in the later one, expressly
revoking the former one. It is well to make every will complete
in itself so that it will provide for an entire distribution of the tes-
tator’s property, and to insert in it a clause revoking all former
wills. 3d. By a destruction of the will. This, in order to oper-
ate as a revocation of the will, must be intended to have that
effect. Tearing off the name of the testator is said to be sufli-
cient, but it is safest to completely destroy the will, as by burning
it. Ifa mutilated will is found among the papers of the testator
the presumption is that it was mutilated with the intent of destroy-
ing and revoking it. If such a will is found elsewhere the pre-
sumption is that it is still a good will. But the matter in both
cases is to be determined by proof. 4th. By a change in the cit-
cumstances of the testator. If the will disposes of a specific piece
of property and the testator before his death sells or makes some
other disposition of that property, such fact revokes that part of
the will 5th, By operation of law. If, after making a will, the
OF WILLS. 271

 

testator marries and has a child, such fact revokes the will. The
testator must make another will after the birth of his child if he
wishes it to stand. Or if the testator wills away property which
his widow may claim as dower, or if he leaves her nothing in lieu
of dower, she may still claim her dower right, and that will in part
at least revoke the will. So likewise if the testator makes no pro-
vision for his children, or makes no mention of some one child,
such child may claim the share that he would have received had
there been no will, and thus the will may be in part revoked.

The forms of wills given in the concluding portion of the book
are of asimple nature and may be followed with safety in the
majority of cases; but where it is desired to create trust estates,
remainders, executory devises, etc., the aid of a competent lawyer
shoula always be secured.
CHAPTER XXXVI.

EXECUTORS AND ADMINISTRATORS

4. Duties of Executors. 5. Payment of Debts,

2. Duties of Administrators. 6. Commissioners on Claims,
3. Inventory of Assets, 7. Distribution of Assets,

4. Appraisers. 8. The Probate Court.

Many persons who are not lawyers are called upon to act either
as executors of wills or as administrators of the estates of deceased
persons; and in closing this portion of this book it seems well to
give some direction to those who are thus entrusted by their friends
with the settling of estates.

1. Duties of Executor. An executor is a person named in
the will of a deceased person as the one who is to execute the will
and settle his or her estate. There may be more than one execu-
tor, and any one who is competent to make a will is legally quali-
fied to be an executor. If the will does not name an executor, or
the one named will not act, or he dies or resigns, the Court
appoints one who is then called the “administrator with the will
annexed.” Usually the husband of a deceased wife or the wife of
a deceased husband, and after them the next of kin in the order of
relationship, has the right to be so appointed; but the Court has
discretion in the matter and will not make the appointment unless
it seems best.

The executor is the personal representative of the deceased, and
in him is vested, immediately upon the death of the person making
the will, the title to all the personal property of the deceased, for
the purpose of discharging his liabilities, fulfilling his contracts, if
they are of such a nature that they can be carried out, and of exe-
BXEOUTORS AND ADMINISTRATORS. 273

 

cuting the will in every particular so far as possible. He is liable
only so far as the means or assets in his hands extend, and does
not become personally liable except upon his written promise to
that effect, duly signed by him.

As soon as the will is proved and allowed, the Court issues to
the person who is named in it as executor “letters testamentary,”
if he is competent and can give the required bond. A bond is
required usually in all cases, even if the testator specially directs
in his will that no bond be given, though in this case the penalty
of the bond is made merely nominal, otherwise it is put at about
twice the amount of the property involved. The bond is con-
ditional on the faithful discharge of the duties of the office. These
duties of the executor may, in a general way, be stated as follows:

First. To see that the deceased is buried in a suitable manner.
Unreasonable expense must be avoided, and if the estate is insol-
vent, the amount to be so expended is sometimes limited by stat-
ute. (14 Serg. & R., 64.)

Second, To offer the will for probate within a reasonable time.
In proving the will, filing his bond, giving notices, making and
returning inventories, etc., the executor must conform to the laws
of his State and the rules of the Court. The Clerk of the Court
will generally give him full instructions upon all these points.

Third. To make and return to the Court within the required
time a true and perfect inventory of all the goods, chattels, rights,
credits, and estate of the deceased, which shall come to his posses-
sion or knowledge.

Fourth. To collect all the property of the estate of whatever
nature, pay the just and legal debts in their proper order (see page
275), and dispose of the remainder as the will directs.

Fifth, To render a true account to the Court within the
required time, and at any other time when so directed by the Court.
Directions will be given at the Probate Office as to the manner
and form of making the account.

If the executor dies before closing the estate his executor has no
authority over the first estate, An administrator, with the will
annexed, must be appointed. _

2. Duties of Administrator. An administrator is a person
authorized by the court to manage and distribute the estate of an
intestate or one who has died without leaving a will. He derives
all his authority from the court, but his duties are substantially the
274 MANUAL OF THE LAW.

 

same as those of an executor, except that instead of disposing of
the residue of the estate after the debts are paid as the will directs,
he must distribute it as the law requires. He has no will to guide
him unless he is an administrator with the will annexed. Ordi-
narily the same persons are appointed general administrators as
are appointed “with the will annexed,” and in the same order,
namely: ist. The husband or wife of the deceased. 2d. The
_ next of kin; and gd. The creditors of the estate, the largest cred-
_ itor taking precedence. But the court need not appoint any one
of these unless he is competent.

The. administrator must give a bond the same as an executor,
and he must prepare and return an inventory of the estate, collect
the assets, pay the debts, distribute the residue, and file an account
as required by law. In doing these things he should be guided
by the directions given at the probate office; though if the estate
is large, or important rights are involved, a good attorney should
always be employed to supervise the work.

3. Inventory of Assets, The executor or administrator must
make and return an inventory of the estate. It should contain a
full and complete description of all the real estate, goods, chattels,
rights and credits of the deceased. Real estate lying in another
State need not be inventoried, for that must be administered upon
in the State where it lies; put personal property situated in another
State should be inventoried. (38 N. Y., 397.) And the executor
or administrator should make diligent search and inquiry for all
property belonging to the estate, Produce, growing crops, fruit,
and provisions, should be inventoried. Every article of personal
property, including animals, should be described separately, except
sheep, swine, and poultry. These may be described by lots.
Household furniture may be, for convenience, grouped in sets.
In describing mortgages, notes, and judgments, give their dates,
amounts, rate of interest, names of persons against whom they are
held, dates and amounts of indorsements, etc. All the real estate
should be accurately described. ‘The descriptions can usually be
got from deeds or other papers. If the real estate is incumbered the
incumbrances should be fully described. It will be well to procure
and attach to the inventory an abstract of title to the real estate.

If the deceased was a member of a partnership the surviving
partner is entitled to the possession and management of the firm
assets for the purpose of selling them and closing the business,
EXECUTORS AND ADMINISTRATORS. 375

 

(27 Mich., 537.) But the administrator may insist that the assets
be sold and the business closed. (9 Paige, 178.)

4. Appraisers. After the inventory has been prepared there
is generally provision in the several States for having the items
composing it appraised by two or more disinterested persons
appointed by the court for that purpose. After being duly sworn
their duty is to set down opposite each item in the inventory the
just value thereof in money. For the purpose of arriving at a fair,
estimate of the value of assets, the appraisers should examine the
same if necessary. They should make their appraisal at what
they regard as a fair cash value, The inventory and appraisment,
when duly certified, should be returned to the court or to the
administrator. A separate inventory and appraisment should usu-
ally be made and returned of the household furniture and such
other property as may be allowed the widow under the local stat-
ute. Such property is not regarded as assets in the hands of the
executor or administrator.

5. Payment of Debts. The next duty of the executor or
administrator, is to pay the debts of the deceased. These are paid
out of the personal estate, including the growing crops, fruit, etc.,
and if not enough can be got from such source to liquidate the
indebtedness, a portion or the whole of the real estate may be sold
for the purpose, under the direction of the court.

The debts must be paid in a certain order; that is to say, certain
claims take precedence of others, and must be paid in full, though
there are not sufficient assets to pay all. The order of payment,
of debts is not exactly the same in all the States, but is substantially
as follows:

First, Funeral expenses.

Second, Expenses of last sickness.

Third. Debts due the United States.

Fourth. Debts due the State,

Fifth. Claims of creditors generally.

It should be remarked that if the estate has not sufficient assets
to pay all its debts, the executor or administrator should, as soon as
he finds such to be the case, report the estate as insolvent to the
Court, and thereafter he should follow the requirements of the
law of the State and the rules of the Court regarding insolvent
estates.

6. Commissioners on Claims. Where the estate is large
and there are many debts, ‘here © usually a provision for the
276 MANUAL OF THE LAW.

 

appointment, by the Court, at its discretion, of two or more dis-
interested and suitable persons as commissioners, to receive, exam-
ine, and adjust the claims of all persons against the estate. The
appointment is generally made on the application of the executor
or administrator, and it is best for him to have it done, as it relieves
him from much responsibility.

The Commissioners may receive instructions from the Court at
the time they receive their commission, They are required to
give certain notice of the time and place of holding meetings, and
they are given a certain length of time in which to hear the claims,
Claims that are not presented within the time limited become
barred. Six months is the time usually allowed to creditors to pre-
sent their claims, though the Court may extend the time if it seems
hecessary up to two years, after which no claim can be presented,

The Commissioners then make and return a report of their
doings duly verified. An appeal may be taken from the action of
the Commissioners to the Court. Commissioners are paid, out of
the estate, usually from two to five dollars per day.

7. Distribution of Assets, Etc. When the report of the
Commissioners on Claims is confirmed, and the executor or admin-
istrator has paid the claims in the order heretofore given, he then
pays the legacies, or distributes the residue, as the case may be,
under the direction of the Court. Having done this, he makes
and files a final account of his transactions. Notice of the hearing
of this account is then given. Any one interested may appear at
the hearing and object to its allowance. But if the account is
allowed, and no appeal is taken, the executor or administrator is
given his discharge, and the estate is closed.

8. The Probate Court. The tribunal having jurisdiction over
the estates of deceased persons is generally styled the Probate
Court. In some States it is called the Surrogate Court, and in
others the Orphan’s Court, but its powers are very similar all over
the country. It is a purely statutory court and derives all of its
powers from the statute. Its judge is generally a county officer
and his jurisdiction is limited to the county. It is a court of record
and has aseal. Statutes conferring power upon it are to be lib-
erally construed. (31 Barb., 544.) Where authority for its action
can be reasonably inferred from the language of the statute the
authority is regarded as granted; but where the Court assumes
powers not plainly conferred by law its acts are void. (12 Wend.,

493-)
Missing Page
Missing Page
CHAPTER I.

NOTARIES PUBLIC, THEIR DUTIES AND
LIABILITIES,

 

1. The Office of Notary Public. 14, The Certificate of Acknowledg-
2. How to get the Office. ment.
3. Qualifying. 15. Rules of Conveyancing.
4. Jurisdiction. 16, Protesting Commercial Paper,
5. Duties of a Notary. 17. Protesting Promissory Notes,
6. Liability of a Notary. 18. Days of Grace,
7. Taking Affidavits, 19. Bills of Exchange.
8. The Jurat. 20. Place of Payment,
g. Depositions. 21. Protest, Form of, ete.
to, Administering the Oath. 22. Notice of Protest.
11, Acknowledgments. 23. Shipping Protests.
12. Wife’s Acknowledgment. 24. Protests as Evidence,
13. Seals. 25. Special Duties of Notaries.

1. The Office of Notary Public is the most common one of
a legal character, as well as the most indispensable one in the com-
munity. Hardly any important business transaction can be com-
pleted without a notary’s aid. In the commercial world his most
frequent duty is that in regard to protesting commercial paper.
In business and farming communities he is called upon principally
to take acknowledgments, administer oaths, and attest written
instruments. In rural communities he is often called upon to draw
contracts and deeds, or to give legal advice, and he should be at
least well qualified to draw such instruments and to see that they
are executed accurately and legally.

2. How to Get the Office. No qualification is required as a
condition .to holding the office of notary public, except that the
candidate be of age and able to give the required bond that he will
faithfully discharge his duties. The governor of the State makes
280 : MANUAL OF THE LAW.

 

the appointment, which, like all executive appointments, must be
confirmed by the State senate, if-in session, If not in session the
appointment holds only till the close of the next session, otherwise
the appointment is for four years. Application should be made
in writing to the governor, either directly or through a member
of the legislature, which latter is the more frequent and better
method. The applicant should present his full name carefully
written out with his full address, including the county in which he
lives. It is discretionary with the governor whether he will grant
or refuse the appointment, and if he refuse, even without cause,
the applicant has no redress. But it is customary to grant commis-
sions to every competent person who may make application.
The commission when duly signed is sent to the county clerk for
the county in which the applicant resides, who gives notice of its
arrival te the appointee. Within twenty days after such notice the
applicant must “ qualify ” or he will forfeit his commission.

8. Qualifying. The process of qualifying consists in taking
the required oath of office and giving a bond conditioned on the
faithful discharge of the duties and paying the required fee, which
in Michigan is one dollar. The oath is to support the Federal and
State constitutions and faithfully discharge the duties of the office.
The bond is made to the People of the State, usually in the sum
of one thousand dollars, and must be signed by the appointee and
one or more sureties approved by the clerk.

4, Jurisdiction. A notary may act in any part of the State,
but he must continue to reside in the county for which he was
appointed. He forfeits his office by removing to another county.
Any records which a notary may have relating to his office, must,
upon his resignation or removal from office, be deposited with the
clerk of his county, and the executor of any deceased notary must
so deposit them within three- months after his appointment.

5. Duties of a Notary. We shall briefly go over the princi-
pal duties of notaries in the State of Michigan, setting them forth
in such plain language as will enable every citizen to discharge the
duties creditably and safely. By an act of Congress, notaries are
authorized, wherever the federal jurisdiction extends, to exercise
the same powers as United States Circuit Court Commissioners in
respect to taking affidavits and depositions, and the taking of testi-
mony to be used in the United States Courts. In Michigan and
many other States they are specifically empowered to administer
CONCERNING NOTARIES PUBLIO. 251

 

eaths and take affidavits in any matter or cause pending or to be
commenced or moved into any court of the State, and they are
given the powers exercised by notaries under the law of Nations,
commercial usage, or the laws of any other State or country. It
will be thus seen that the duties and powers of a notary are very
important and are by no means the trifling matter they are some-
times supposed to be.

6. Liabilities of a Notary, The notary is a ministerial offi-
cer. He has no discretionary powers. He is bound to understand
his duties and to perform them with diligence and care, and he is
liable for any injury that may result from his negligence or mis-
conduct in office. Any person who is aggrieved by any delinquency
or misconduct of a notary may prosecute him on his official bond.
For his willful misdoings he is sometimes punishable criminally.
When we reflect that the value of note or bill often depends upon
its proper protest, we see that the responsibilities of a notary may
be very large.

7. Taking Affidavits. One of the most common duties of
notaries is that of taking affidavits; this they are authorized to do
by the statutes of most of the States. The notary should write
out the affidavit in due form after learning the facts from the per-
son who is tosign it. This person is called the affiant or deponent.
The notary should use great care to express clearly the facts given
him, and while stating fully those facts, to state no more than the
deponent knows and can swear to. The affidavit should then be
read to the affiant and he should sign the same, after which the
notary should administer the oath; that is, “swear” the affiant,
and should then affix the jwra¢ or official certificate that the affi-
davit has been duly sworn to. The affidavit should be commenced
by giving the State and the name of the county wherein it is made,
followed by the letters “ss,” thus:

State or Micuicay, } ,.
County of Oakland. °

Then should be given the name of the affiant, thus: John Doe,
being duly sworn, deposes and says that [here set forth clearly the
facts.] After the signature the surat should be attached in this
form: Subscribed and sworn to before me, this twentieth day of
March, A. D. 1885. Richard Roe, Notary Public, Oakland Co.,
‘Michigan. If there are several affiants the affidavit shou: read
“being severally sworn, each for himself respectively deposes.”

abe
283 MANUAL OF THE LAW.

 

If the affidavit relates to a matter in litigation, it should be pre-
ceded by the name of the Court and the title of the cause. The
names of all the parties to the suit should be given in full, If the
affidavit is one that is required by law to be made by a certain per-
son, as by an attorney or an agent, it is not enough to simply
describe the deponent as such attorney or agent; but the fact that
he is such must be specifically set forth and sworn to, and gen-
erally any material fact must be specifically set forth and not
merely incidentally set forth by way of description. The affidavit
should always be signed by the person making it. An affidavit
should never be made before a notary who is the attorney in the
case in which it is to be used. Partnership names cannot be signed
to an affidavit. The affiants must sign and be sworn separately.

8. The Jurat. The form of jurat above given would be
sufficient in most instances, but more formal jurats are required to
some instruments like bills of complaint, petitions, etc., see forms
in Part ITIL.

9. Depositions. A deposition is the testimony of a witness
reduced to writing, in due form, under authority of some court,
and to be used in a trial. When taken by a notary he first admin-
isters an oath to the witness that in the proceedings pending in
the court (naming it) between the parties to a cause (naming it)
he will tell the truth, the whole truth, and nothing but the truth.
He then writes down the testimony, either by giving it as a con-
tinuous narrative, or by giving the questions made by the exam-
iner and the answers to them. The deposition must be read to and
signed by the witness, and the notary must attach his jurat.

10. Administering the Oath. After the affidavit or deposi-
tion has been signed by the officer and person swearing, each rais-
ing their right hands, the officer uses the following words: “ you
do solemnly swear that the contents of the affidavit subscribed by
you are true, so help you God.” To which the affiant or depon-
ent must say, “I do.” If he is a Quaker, or is conscientiously
opposed to taking an oath, the following form may be used: “ you
do solemnly affirm under the pains and penalties of perjury, etc.”

11. Acknowledgments. A common duty of notaries is that
of certifying acknowledgments. Deeds, mortgages, and other
instruments relating to real property are required to be acknowl-
edged before they can be put upon record. The certificate of
acknowledgment is placed at the end of the instrument. In ow
CONCERNING NOTARIES PUBLIO. 283

 

modern conveyancing blanks the formal parts of it will invariably
be found printed there. For forms see Part III. The notary’s
duty is to fill in the blanks and attach his signature, office, and
seal, The seal is not required in many of the States.

When a husband and wife join in the execution of a deed it was
formerly, and in some States is still, required that the notary exam-
ine the wife separate and apart from the husband, and ascertain
from her that she executed the instrument of her own free will
and without fear or compulsion from any one. In this case there
must be a separate certificate of the wife’s acknowledgment, as
shown in the forms. In all cases the notary should ask of the
person acknowledging whether he acknowledges the instrument
as his free act and deed.

An acknowledgment must never be taken by a notary who is
the grantee in the instrument, but there is nothing to prevent it
being taken by a relative of the parties to the instrument. The
acknowledgment is not a part of the instrument so far as the trans-
fer of property is concerned, and the deed or instrument will usu-
ally be valid without it. See page 45. The certificate should
show that the officer was one authorized to take acknowledg-
ments, that the grantor was personally known to him, and appeared
personally before him and acknowledged the deed to be free and
voluntary. No particular words are necessary, but it will be well
to follow the forms given, nor is it necessary that the officer
should have long known the grantor, though he should take pre-
caution to identify the person acknowledging with the grantor.

12. Wife’s Acknowledgment. When the acknowledgment
is taken of an instrument conveying lands in another State, the
form of the acknowledgment must comply with the requirements
of that State, as the law of locality governs the transfer of lands.
Many States still require that the wife’s acknowledgment shall be
taken separately and apart from her husband, and that she should
acknowledge that she executes the deed freely, and without fear
or compulsion from any one. In this respect the notary should
examine the statutes of the different States and be certain that he
complies strictly with their requirements in making his certificate
of acknowledgments. The certificate of acknowledgment should
always be so headed as to show the State and the county in which
it is made. The officer should not only sign his name in full, but
also write the title of his office at the end of the certificate, and he
284 MANUAL OF THE LAW.

 

should describe himself in his official character in the body of the
certificate.

13. Seals. Formerly notaries authenticated their certificates
by their official seals, but in many States seals are not now
required. They are not required in Michigan nor in Massachu-
setts. Though an acknowledgment taken abroad before a com-
missioner for Michigan must be authenticated by his seal. It is
well, however, for notaries to have seals and to use them whenever

«they take an acknowledgment of an instrument to be used in
another State.

14. The Certificate of Acknowledgment should be on the
same piece of paper as the deed, and should not be on a separate
piece of paper from the deed, or wafered or attached by other
means,

Certificate of Regularity. The laws of many States require
that when deeds of property within their borders are executed
in any other State, such deed will be valid if executed in accord-
ance with the requirements of that State; but in such cases there
must be attached to the certificate of acknowledgment a certi-
ficate signed by the county clerk and impressed with the seal of
the circuit court, stating that the acknowledging officer is what
he assumes to be; that he is authorized by the laws of the State to
take the acknowledgment, and that the signature attached to the
certificate is genuine. Such a certificate is required in Dakota,
Florida, Illinois, Nebraska, New York, Ohio, Oregon, Wisconsin,
Wyoming, and Canada. :

15. Rules of Conveyancing. The notary should know
enough of these rules to be able to draw a deed or mortgage
accurately. In the chapter on deeds will be found many directions
which, with the forms appended and the exercise of care, will

nable the notary to avoid many errors commonly met with.

16. Protesting Commercial Paper. A most important and
delicate duty required of notaries public is that of protesting prom-
issory notes, and bills of exchange. This consists in certifying to
the fact that the note was not paid or the draft was not accepted
on a proper demand. The value of commercial paper often
depends upon its being properly protested and every notary should
prepare himself to attena to tnts formality, fer 2 blunder in the
performance of it may result in a loss of the debt secured by the
paper, for which loss the notary may be liable.
CONCERNING NOTARIES PUBLIO. 285

 

17. Promissory Notes. When a note, duly endorsed, falls
due, demand of payment must be made to the maker of the note,
and if payment is refused the note must be protested and notice
thereof at once given to the endorser, otherwise he will not be
obliged to pay it. |

18. Days of Grace. In paying commercial paper a certain
time, called “days of grace,” is allowed by commercial law after
the time of the paper expires. Three days are usually allowed for
grace. The notary should acquaint himself with the statutes of
his State upon this subject. In Michigan three days of grace are
allowed on all bills of exchange payable at sight or at a day cer-
tain, and on all notes, orders, and drafts, payable at a future day,
unless there is an express stipulation to the contrary; but bills of
exchange, notes, or drafts, payable on demand, are not entitled to
grace. In computing the days of grace, Sundays and legal holi-
days are counted in, and the demand of payment is made on the
third day unless it falls on a Sunday or a legal holiday, in which
case the demand is made on the day preceding. The legal holi-
days in Michigan are January first, February twenty-second,
May thirtieth, July fourth, the day appeinted for Thanksgiving,
and December twenty-fifth.

19. Bills of Exchange. A bill of exchange is a written
order from one person to another, directing the person to whom it
is addressed to pay to a third person a certain sum of money therein
named. The person making the bill is called the drawer, the per-
son to whom it is addressed is called the drawee, and the person
‘to whom it is given is the payee. The drawer must pay the bill
if the drawee refuses to accept it, provided the bill is properly pre-
sented for acceptance. The drawee is not liable until he has
accepted, which is done by writing the word “ accepted” on the
face of it and signing his name beneath it. If he declines to do
this, or if after having done it he fails to pay the bill at maturity,
it must be protested for non-acceptance or non-payment, as the
case may be, in the method above laid down for promissory notes.
What has been said regarding the protest of notes, and the forms
given in the connection therewith will apply, with a slight modifi-
cation, to the protest of inland bills of exchange.

20. Place of Payment. If the place of payment is desig-
nated on the paper it may be presented at that place, if not, it
286 MANUAL OF THE LAW,

 

should be presented at the residence or place of business of the
maker, or payment may be demanded of him personally where-
ever he is found. The demand, however, should be made during
business hours. It should be actually made by presenting the note
and demanding its payment. If the maker is not found at the
place designated for payment, or if he refuses payment when
demanded, the notary at once makes protest. This is done by
« noting the protest,” that is marking upon the face of the note
the fact of the demand, the time of making it, the cost or charges,
and the name of the party on whom the demand was made, signed
by the notary’s initials. The actual protest is a formal paper set-
ting forth all the facts.

21. Protest, Form of, Ete. This is an instrument in which.
the notary certifies that on the day of its date he presented the
original note to the maker thereof and demanded payment, which
was refused, and thereupon he protests against the endorser for
damages, costs, and interest. This is the form in common use:

CERTIFICATE OF PROTEST.

StaTE oF MIcHIGAN,
County of ........, {ss

Br 1r Known, That on the ... day of .... in the year of our
Lord one thousand eight hundred and eighty-..., at the request
of ....,1 .... a Notary Public, duly admitted and sworn, dwell.
ing in .... county and State aforesaid, did present the origina
.... which is hereto attached, at the .... and demanded
thereof, which was refused.

WHEREuPON, I, the said Notary, at the request aforesaid, dié
PROTEST, and by these presents do solemnly protest, as wel}
against the Drawers, Makers and Endorsers of the said .... as
against all others whom it doth or may concern, for exchange.
re-exchange, and all costs, charges, damages and interest already
incurred and to be incurred by reason of the non-.... of the said

And I, the said Notary, do hereby certify, that on the same day
and year aforesaid, due notices that said .... had thus been pre-
sented for .... and that .... thereof had been thus demanded
and refused, and that the holders of the said .... did and would
look to the Drawers, Makers, and Endorsers thereof for payment
of the same, were put into the postoffice at .... with the full
OONCERNING NOTARIES PUBLIO. 287

 

legal postage paid thereon, and directed as follows, after diligent
inquiry being made for the residence and place of business of the
Drawers and Endorsers:

Notices for ........ directed ...c.cces
rT ee 66

And I further certify that notices were left as follows:
Notice left for ........ at ...... eee
if) rT “ iT)

Each of the above named places being the reputed place of resi-
dence or business of the person to whom the notice was directed,
or to whom it was left aforesaid.

In Witness WuHEREOF, I have hereunto subscribed my name
and affixed my seal of office.

Notary Public.

22. Notice of Protest. Immediately after “noting the pro-
test” the indorser should be notified of the demand and protest.
The notice should state, first, that the paper was not paid at matur-
ity; second, that it has been protested for non-payment, and third,
the notice should identify the paper in some way, usually by a
copy. The following is a form in common use:

Misa d sess halsailatews ees Gus Swan ROOws

Taxes Noticr, That the....... for $.... made by...... es
dated ...... » payable ....... after date at ....... , and endorsed
by you, has this day been presented ....... and demand made for

wee. thereof, which has been refused; said ....... has been
duly pRoTESTED for non-payment, and the holder now looks to

you for payment of the same.
Yours, &c.,

This notice should be served personally upon the endorser if he
resides in the same town; or, if he lives elsewhere, by the earliest
available mail. In Michigan the statute provides that if the
endorser has his residence in the city, village, or township where
the paper is payable, the notice of protest may be deposited, postage
prepaid in the postoffice at such place, properly directed. If pay-
able elsewhere, notice may be sent to him prepaid and properly
directed. Still it is better to serve the notice personally if possible.

The service will be good if the notice is left with the person in
ta
288 MANUAL OF THE LAW.

 

charge of the endorser’s place of business; or it may be left at his
residence with the person in charge thereui. If sent by mail it
will be sufficient if sent to the office where the endorser is in the
habit of receiving his letters. Where an endorser lived in the
woods, twenty miles from any postoflice, it was held that notice’
should be given to him personally or by special messenger.

23. Shipping Protests. A marine or shipping protest is
made by a vessel master or by a merchant who ships goods or
who charters a vessel, and the notary’s office is simply to authenti-
cate the instrument, just as he would attest an affidavit or take an
acknowledgment to a deed. Such a ‘protest is a declaration or
narrative of the particulars of the voyage, storms encountered, the
accidents that may have occurred, and the conduct which, in cases
of emergency, have been pursued. It is a sort of precaution taken
to perpetuate evidence in cases involving loss or damage which are
likely to become the subject of litigation. If any thing in the
course of a voyage occurs which is at all unusual or may affect
claims for marine insurance, or furnish a basis for claims against
the ship owners, the vessel owner as soon as he reaches a port
where he can do so makes a protest of the facts as above set forth.

24. Protests as Evidence. As has been stated, the making
of a protest is a precaution taken for the purpose of preserving
evidence. To be admissible as such, marine protests should be
made as soon as possible after reaching a port where there is
authority empowered to receive them. A protest has been held
inadmissible unless made within twenty-four hours after reaching
the port of destination. (g Penn. St., 390.)

26. Special Duties of Notaries, The statutes of the differ-
ent States have granted other and special powers to notaries, and
under the federal bankrupt act they were authorized to take proofs
against the estates of bankrupts. In Michigan proof of claims
against insolvents, who have made assignments for the benefit of
creditors, may be made before notaries. Notaries may also act as
circuit court commissioners in certain cases on an order from the
circuit judge of the county. Any notary who is an attorney of
the supreme court may act as a circuit court commissioner in any
particular case where it is shown that there is no such officer in
the county, or where the regular commissioner is disqualified by
being connected with the case.
CHAPTER II.

RULES OF ORDER FOR DELIBERATIVE
BODIES.

airs

Importance of the Subject. In this democratic country
some knowledge of parliamentary procedure is necessary for every
one. The workman in the guild, the capitalist in the stockholder’s
meeting, the citizen in the town meeting, the politician in the
political convention, and the law maker, in the halls of legislation,

have a common need of knowledge as to the proper conduct of a
deliberative assembly. The humblest citizen is likely to be called
upon to use this knowledge in any or all of the above capacities,
and he should prépare himself for the emergency. ,

A Ready Reference. For the sake of quick reference, the
subjects treated are here enumerated by sections, with the page
indicated upon which each may be found:

Page.

1. Sources of Parliamentary Law............- eee aeie Sceecieesesomces<c «- 290
2. ‘The Organization: of a Meeting) .o.cesecswncceenesececacvenccensstes 290
3. An Occasional or Mass Meeting... 2.0.22. see eeceennccce ssc canes 292
4. A Politiéal: Mectng ee cacide secu scnscecceceeeweus oo Sai tece 292
5. A Caucus or Primary Meeting. ...-.-~2cceeeeeeceesccencenenen- euaee 202
6. A Convention or Meeting of Delegates....... shoeessesewace cs ceiecinniice 293
4, A Town Meeting._..... Steve ceseess Sistedwseeicis siideehseneeoeeveres 204
8. A Permanent Society......2.cc2encnnce peiteaessanccecsesetesas owes s! 294)
9. Constitutions, By-Laws, Etc,........--.--. weGGesseuceseteoet cawase - 296
10. Procedure, Motions, Questions, Etc...... Seinibiswiciascmsecein giana batman 298
11. Intreduction of Business........- seausescine SiseGiniciasiow laine eee sees ve 298
12, Principal Motions. ........ aise ne eecece etic eneennne seccnveceecne. 298
13. Subsidiary Motions... ......--------2-----+-06- uwlesiesiewisiaciewcieclaceeis 298
14. Incidental Motions....... woe aciomacttien weeereses we eceesenwcers cies. 299

15. Privileged Motions. ......-.2---0-0--00------s0ece oe ee anne ne awe meee 299
29° MANUAL OF THE LAW.

 

Page.
16. Order of Precedence of Motions__......... iciewe aw ewiameiseeiwieces: concn 299
17. To Fix the Time to Which to Adjourn__..... atbeeciccwaccesoes stam 299
18. The Motion to Adjourn. _._...------- eo eee eee eee eee een ee en nee 299
19. The Rights of Members, Questions of Privilege.....-.-.---. teacenn 2-- 300
20. The Orders of the Day_..... wSMeeewemeni bos seneusessec ss eeeete“ss 300
21. Appeals, Questions of Order....2. 22-22 - wenn een nen mee nee enne 300
22. Objections to the Consideration of a Question........--..-.------- eee- 300
23. For the Reading of Papers... 2-1-1 ee enn nee eee ene we w en nnn ene 301
24, Suspension.of the: Rules... cece ene snes ecicedicmmnnstecneeec 301
25. The Motion to Lie on the Table... 022 enn nn eee ee ene eee eeee seen 301
26, ‘The: Previous Questions.<.sccascecioanwecccsiereecceocueeescseceecn's5 301
27. To Postpone to a Certain Day... 2... 2-2 ene ene nce ene ne een eee 302
28. To Refer to a Committee... owe eee eee eee wee nee ee sislatcicjera cies 302
29: The, Motion:to Ametid. ccc cnccccscecsess sch ecn concent cesstieecitis 302
30. To Postpone Indefinitely_.._. 1-22-22 22-2 eee ee eee eee nee eee 303
31.0 ‘To: Reconsider so3.24 31 ui bieicbinalates Scleruocsecssemenesoweescome tem 303
g2: Committees... a cxcueebiatitnuentqeasesceesecnccs Seb cpe se een col seers 303
33. Reports of Committees. cacsaseuescinciesmeinindiniminjeceacuetewadiownsineeeds. 304
34: Debate... cic. ccccun ce ccecsie taeweeceeetasweseteetomececceeeeeecic 305
35: Decorum in Debate... cc.i..ccesseesceawccecsecoconsstseesncssens, 305
36; Punishment:of Members... cscscescisesie'.cec eecde cots ceeewececaeen, 306
37. Voting, Methods of, Etc.._...-..-.-----------++---- pia ee oocmomeees 306
38. What isa, QUOKOM Tos obese kee hocwkccwiadsadcicemeeteeeltceasess 307
39., Ordemok Busitéss. 22222 coecs ecko wnssos cadet ect esteta cece cet’ 307
40; Trial of Memberse.occcce sucsecicclajare stessessccss pete ccetleekeeced 307

1. Sources of Parliamentary Law. As the name indicates,
parliamentary law or practice is the law or rules governing the .
Parliament of England. It is the body of rules and regulations
developed with the growth of that great deliberative assemblage.
Most of it there took origin, and its general principles were there
long ago settled. In the United States the practice of the National
House of Representatives, which is based upon the usages of the
English House of Commons, is the source of our law upon this
subject. Of course not every matter of detail can be settled by
the rules of Congress, nor does every rule of Congress apply to
the conduct of every assembly. But the great parliamentary
questions, such as what motions can be made, what can be debated,
what their effect, what their order of precedence, etc., are all set-
tled by the rule of the House of Representatives. Many minor
questions not arising in Congress have been settled by the long
practice of other assemblies, as will be seen.

2. Orgenization of a Meeting. Whenever people come
together for the purpose of deliberating upon any matter, it is
PARLIAMENTARY PRAOTIOE. 291

 

necessary that they proceed in an orderly manner, in accordance
with definite rules of procedure, otherwise there would be no prog-
ress nor accomplishment. The first thing in order is to organize
the meeting. Generally such a meeting is called by some self-
constituted committee, or by some person whose position or influ-
ence gives him a semblance of authority. Shortly after the time
appointed for the meeting, some one interested in calling it, or any
person present, rapping upon a table or otherwise attracting atten-
tion, says: “The meeting will please come to order. I move
that Mr. A. act as chairman of this meeting.” Any one else pres-
ent may say: “I second the motion.” The first speaker then
puts the question to vote by saying: “It has been moved and
seconded that Mr. A. act as chairman of this meeting, those in
favor of the motion will say aye.” When the affirmative vote has
been taken he says: “Those opposed will say no.” If it seems
that a majority of those present said aye, he says: “ The motion
is carried, Mr. A. will please take the chair.” If the motion was
lost, he announces the fact and calls for the nomination of some
one else for chairman, with which nomination he proceeds as in
the first case. This is the most approved method of getting a pre-
siding officer, though there are others less formal. In large meet-
ings the person who thus nominates the chairman may. appoint a
committee, or may act himself as a committee to conduct the chair-
man to the chair.

On assuming the chair the chairman may, if he chooses, make a
short speech, thanking the assembly for the honor conferred upon
him, and if proper, touching briefly upon the objects of the meet-
ing. He then says: “The next business in order is the election
of a secretary.” Some person present should then say: “Mr.
Chairman, I nominate Mr. B. as secretary.” The chairman then
puts the question. If several nominations are made, the chairman
should announce as he hears the names: “ Mr. B. is nominated,”
“Mr. C. is nominated,” etc. He then puts the question on the first
name mentioned, saying: “As many as are in favor of Mr. B.
acting as secretary will say aye.” After the “ayes” have voted
he says, “those opposed will say zo.” If the “ayes” have it he
announces the fact and requests the secretary to take a seat near
the chair. If the motion is lost the question should be put upon
the next name mentioned, and so on until one is elected. The sec-
retary should keep a careful record of all the proceedings.
292 MANUAL OF THE LAW.

 

When no other officers are needed, and usually in ordinary
meetings none are, the chairman here inquires: ‘ What is the
further pleasure of the meeting?” If the meeting is one called
simply to consider and pass upon some special subject, some one
interested in the matter, having previously prepared a set of reso-
lutions should at this point say: “Mr. Chairman, I move the
adoption of the following resolutions,”—-which he then reads and
hands to the chairman. The meeting having been thus organized
may proceed to debate the resolutions, and may amend, adopt, or
otherwise dispose of them in accordance with the rules hereafter
set forth.

8. An Occasional or Mass Meeting. This is a meeting the
call or invitation to which is extended to the people generally.
Any member of the community may feel at liberty to attend and
take part in its deliberations. It is organized in the manner above
set forth. Mass meetings are often called when it becomes import-
ant to know the sense or feeling of the community upon any ques-
tion that may arise. They are usually called by a self-constituted
committee.

4, A Political Meeting, A political meeting is like a mass
meeting, except that its object, instead of being to gather the views
of the community upon any given subject, is to spread the views
of some individual upon sore question of politics. Political meet-
ings are generally arranged by a local committee who select the
officers and provide a programme of exercises,—the principal fea-
ture of which is usually a speech from some prominent politician.
The officers selected are a president, secretary, and often a large
number of vice-presidents appointed merely for complimentary
purposes. The latter occupy seats on the platform beside the
president, and when he is absent or vacates the chair, the first vice-
president on the list should act in his stead. When the meeting is
not previously organized by a committee it should be organized in
the manner indicated for a mass meeting, except that when the
officers have been duly elected the chairman, instead of inquiring
«the further pleasure of the meeting,” should announce the
speaker or speakers of the occasion in their regular order.

5. A Caucus or Primary Meeting. This is a meeting of the
members of a political party held for the purpose of electing dele-
gates to a convention, It is really the only place where the
American citizen acts directly in politics. The meeting ‘« gener-
-

PARLIAMENTARY PRACTICE. 293

 

ally called by a standing committee. It is organized in the man-
ner indicated for an occasional meeting. The voting is usually by
ballot, but may be by acclamation if there is no objection. The
tellers are appointed by the chairman. The delegate receiving
the largest number of votes is elected. Where there are several
delegates to be chosen the vote is taken upon the first, then upon
the second, and so on in their regular order. The clerk of the
meeting should provide them with proper credentials.

6. A Convention or Meeting of Delegates. In a conven-
tion, or assembly composed of delegates, it is necessary to first
form a preliminary organization in order to ascertain who are
properly the members of the assembly and entitled to vote. The
temporary organization is effected in the manner described for an
occasional meeting, by the election of a temporary chairman and
secretary. The first business in order is the appointment of a com-
mittee on credentials. This committee consists of three or more
members, according to whether the convention is a small or large
one, and it is usually appointed by the chair. In large State con-
ventions the committee is generally made to consist of one mem-
ber from each county delegation, and his name is announced by
the chairman of each county delegation as the secretary calls the
roll of the counties. It is now customary to also appoint at this
time a committee on “permanent organization and order of busi-
ness,” and a committee on “ platform” or “resolutions.” These
committees in State conventions are generally appointed as above.
After the committees are appointed the convention should take a
recess for an hour or so to give the committees an opportunity to
prepare their reports. On the re-assembling of the convention the
first business in order is the report of the committee on credentials.
This report consists of a list of the names of the delegates who
are entitled to seats. After its adoption only those named in it
are entitled to vote. The next business in order is the report of
the committee on permanent organization, etc. This report should
contain the names of those nominated for permanent officers, and
also a programme of business. Its adoption has the effect of elect-
ing the permanent officers; upon which the temporary officers
withdraw, and the permanent officers assume their duties and carry
out the programme as reported. That programme should first
provide for the report of the committee on resolutions, if it does
not, that will be the first order of business any way.

21
294 MANUAL OF THE LAW.

 

%. Township Meetings. Town meetings are provided for by
the statutes of the several States. For the most part these meet-
ings are for the election of township officers, and the statutes relat-
ing thereto must be consulted and closely followed. There is,
however, usually provision for deliberation at such meetings by
the qualified electors of the township, upon many matters affecting
the general welfare, especially as to the amount of money to be
raised for various purposes by the township. At such delibera-
tions the supervisor of the township presides, and the town clerk
acts as secretary. The rules of parliamentary procedure apply to
such deliberations, and the results arrived at have the force of
binding law. Here is an example of the necessity for every citi-
zen’s possessing some knowledge of parliamentary law.

8. A Permanent Society. When it is desired to form a
permanent society, those interested in it should invite the proper
persons to meet at a certain time and place. A few minutes after
the time appointed some one should step forward and say: “The
meeting will please come to order; I move that Mr. A. act as
chairman.” Some one else should say: “I second the motion.”
The one who made the motion should put the question, as described
in section two, and as there indicated, the chairman, when elected,
should announce the first business in order, the election of a secre-
tary. After the election of a secretary the chairman should call
upon some member interested in organizing the proposed society
to state the object of the meeting. When such member addresses
the chair, and is recognized, he is then at liberty to speak upon
that subject. Exact formality is not required. The chairman may
call upon other members to give their opinion, or the names of
particular persons may be called out by members. The chairman
should observe the wishes of the members so expressed. After
there has been sufficient explanation in this informal way, some
one should offer a resolution substantially like the following:
“Resolved, that it is the sense of this meeting that a society for
(here state the name or object of the society) should be formed in
this town.” The resolution, when stated by the chairman, would
be open to debate and should be treated the same as any motion.

It is not necessary in all cases that such a resolution be adopted.
A constitution and by-laws of the proposed society may have been
previously prepared and may be submitted for adoption in the
same manner as a resolution is; or some one may move that a
PARLIAMENTARY PRACTICE. 295

 

committee of five be appointed by the chair to draft a constitu-
tion and by-laws for the proposed society. Such a motion is debat-
able, and may be amended or adopted as the meeting may desire.
Generally such a committee would not make its report until an
adjourned meeting.

After such a committee has been appointed the chairman should
inquire: “Is there any other business before the meeting?” or
« what is the further pleasure of the meeting?” Usually a motion
would then be made to adjourn to a certain time. Such a motion,
when seconded and stated by the chair, is open to debate and
amendment.

Sometimes a motion is made at an earlier stage of the meeting
to fix the time and place of the next meeting. If such a motion
has been carried, the motion at the close of the meeting would
simply be “to adjourn.” This motion cannot be amended or
debated, and if carried the chairman declares that “the meeting
stands adjourned to meet at ———,” the time and place agreed
upon.

At the second meeting the same officers serve until the perma-
nent officers are elected. At the hour of meeting the chairman
announces: ‘The meeting will please come to order. The sec-
retary will read the minutes of the last meeting.” If there are any
errors in the secretary’s minutes any member may call attention
to the fact; if there is no objection the chairman, without waiting
for a motion, directs the secretary to make the correction, and
announces: “If there is no objection the minutes will stand
approved as read (or as corrected, if corrections have been made).”
The chairman next announces: “ The hearing of the report of
the committee on constitution and by-laws is now in order.” The
chairman of that committee, after addressing the chair and being
recognized, reads the report and hands it to the chairman, or he
may hand it to the chairman without reading it, in which case the
chairman hands it to the secretary and directs him to read it. After
the reading of the report the chairman says: “ You have heard
the report of the committee, what shall be done with it?” Some
one should move “ the adoption of the constitution as reported by
the committee.” I£ such motion is seconded the chairman says:
“ The question is upon the adoption of the constitution reported
by the committee.” The constitution may be adopted as a whole
or article by article; the latter is perhaps the safer way. If that
296 MANUAL OF THE LAW.

 

course is followed, the chairman or secretary reads the first article
of the constitution. The chairman asks: “ Are there any amend-
ments proposed to this article?” If none are offered the next arti-
cle is read and the same question is asked, and so on. When the
last article has been read, the chairman says: “The whole consti-
tution having been read, it is open to amendment.” Any one can
now move amendments to any part of the constitution. Motions
to amend are debatable, and when adopted the secretary should
change the constitution accordingly. When it has been thus mod-
ified the chairman inquires: “Are you ready for the question?”
If no one speaks the chairman says: “As many as are in favor of
adopting the constitution as amended will say ‘aye,’ and (after a
pause) as many as are opposed will say ‘no.’” The chairman
then, and in all cases after a vote, announces the result.

The chairman should, if the constitution has been adopted, state
that it will now be necessary for those who wish to become mem-
bers of the society to conform to whatever conditions the new con-
stitution imposes upon membership. These conditions are usually
that the members shall sign the constitution and pay an initiation
fee. If the society is a large one it will be well to take a recess
for this purpose, and a motion to that effect should be made and
carried. The chairman, at the end of the recess, calls the meeting
to order, and says: “The next business in order is the adoption of
the by-laws.” Some one should move the adoption of the by-laws
reported by the committee, and they are then treated the same as
the constitution, On the motion to adopt the by-laws, only those
are permitted to vote who have become members. The next
business in order will probably have been determined by the by-
laws just adopted; if so, the chairman should announce it. Usually
it will be the election of permanent officers of the society. In that
case some one should move the appointment of a committee to nom-
inate such officers, or, if the by-laws provide a different method,
that should be followed. As the officers are elected they replace
the temporary ones, and when the election is completed the society
is organized.

9. Constitutions, By-Laws, Rules, Ete. It is a matter of
much importance that tle constitution and by-laws of any perma-
nent society be correctly framed. If the society is one that will be
likely to own real estate or much personal property, or will be
likely to contract debts, it should be incorporated, that is, it should
\

PARLIAMENTARY PRACTICE. 297

 

be rade a corporation under the laws of the State where it exists.
For the reason that if this is not done the society will be, so far as
its debts are concerned, in law, a partnership, and each member
will be liable for the entire indebtedness; and so far as its real
property is concerned the members will be tenants in common
ther of, and difficulties will be encountered in case a sale is desired
or ar y member should die.

Tle incorporation is usually effected by having articles of asso-
ciatiaa duly executed and acknowledged and filed with the proper
officiul. ‘The statute providing for incorporation must be carefully
folloived and the services of a lawyer would be needed in the mat-
ter. If it is desired to have the society incorporated it will be well
to instruct the officers, or a committee, to take steps to that end.
A form for articles of association or charter, will be found in
Part III.

In forming a constitution it will be well to procure copies of
those adopted by other similar societies, or to get some approved
form and follow it so far as its provisions are applicable. The
form given in Part III. is drafted to suit the needs of a literary
and debating society; but it can be modified to suit other kinds of
associations. It may be observed that constitutions should contain
only the frame-work or fundamental parts of the organization, and
for stability should be made difficult of amendment. Previous
notice of amendments should be required, and a two-thirds or
three-fourths vote be necessary for their adoption. Constitutions
generally need contain only five articles, providing for the follow-
ing subjects: 1. Name and object of the society; 2. The qualifi-
cation of members; 3. The officers, their election and duties; 4.
Meetings of the society; and 5. Amendment of the constitution.

The by-laws should be more specific in their provisions. They
should cover those points not provided for in the constitution which
it is deemed necessary to have definitely settled. Where the
character of the society is such that the common parliamentary
rules will not apply to all its proceedings, such proceedings should
be regulated by by-laws. The form of by-laws given in Part ITI.
may be found useful to those who wish to draft a set of by-laws
for any society. In addition to the constitution and by-laws, it
will be well to adopt some manual of procedure as a standard of
authority. Having done so, nearly every contingency will be
provided for. But it should be remembered that these rules of
298 MANUAL OF THE LAW.

 

procedure have not the force of positive law, and that if they are
not followed the action of the society is not thereby rendered void.

10. Motions, Questions, Ete. When a proposition is made
to adcliberative assembly, it is called a motion, when stated to the
assembly by the chairman, it is called a guestion; and when
adopted it becomes the resolution, order, or vote of the assembly,
as the case may be. Business should be brought before the assem-
bly by a motion of a member, who, having addressed the chair
and been recognized, is said to have “obtained the floor ” for that
purpose. When two or more members rise at the same time the
chairman decides who is entitled to the floor by announcing the
member’s name. Usually the one first to arise should be recog-
nized. The motion, having been seconded, is stated by the chair
and then becomes the question.

11. Introduction of Business, Business may also be brought
before the assembly by the presentation of a communication, in
which case a motion should be made to receive the communication,
or if it has been received without the formality of a motion, a
motion should be made to dispose of it in some manner. The
question having been stated by the chair, is in the possession of the
assembly for debate, and cannot be withdrawn or modified without
leave of the assembly or by moving an amendment. If several
members rise to speak upon a question the chairman should first
recognize the member upon whose motion the question was brought
before the assembly. A member who has once had the floor is
not entitled to it again while the same question is before the
assembly, if the floor is claimed by any one who has not spoken to
that question. After the floor is assigned to a member he cannot
be interrupted by calls for the question, or by motion to adjourn, or
for any other purpose except 1. A call to order; 2. An objection
to the consideration; 3. A call for the order of the day Gf such
has been made), or 4. By a motion of privilege requiring immedi-
ate action. A member arising for any of these four purposes
should state at once his reason for interrupting.

12. Principal Motions. These are motions bringing before
the assembly new matters for consideration. They can not be
made when any other question is before the assembly. They take
precedence of nothing and yield all privileged, subsidiary, and inci-.
dental motions.

13. Subsidiary Motions. These are such as are applied to
PARLIAMENTARY PRACTIOE. 299

 

other motions for the purpose of disposing of them. They take
precedence of a principal question, that is, they must be decided
kefore a principal question can be acted upon. They yield only
to privileged and incidental questions. Subsidiary motions and
their order of precedence among themselves are: 1. To lie on
the table; 2. The previous question; 3. To postpone to a certain
day; 4. To refer to a committee; 5. To amend; and 6. To post-
pone indefinitely.

14. Incidental Questions. These are such as arise out of
other questions and consequently must be decided before such
questions, They can not be amended, and yield only to privileged
questions. They are as follows: 1. To appeal; 2. Objection to
the consideration of the question; 3. For the reading of papers;
4. For leave to withdraw the motion; and 5. Suspension of the
rules,

15. Privileged Questions. These are such as because of
their importance, take precedence of all others. They are usually
undebatable and must be voted upon at once. They are: 1. To
fix the time to which to adjourn; 2. To adjourn; 3. Any question
relating to the rights of the assembly or of its members; 4. To
proceed with the order of the day.

16. Order of Precedence of Motions. A motion that may be
made while a question is before the assembly is said to take prece-
dence of that question. The following motions are arranged in
the order in which they take precedence of each other.

17%. To Fix the Time to Which to Adjourn. This takes
precedence of all others, and is in order even after a vote to adjourn
has been taken, if the the chairman has not announced the result of
that vote. It is undebatable if made when another question is
before the assembly, It can be amended only by altering the
time.

18. To Adjourn, This motion takes precedence of all except
the motion above mentioned. It can not be debated, or have any
motion applied to it, or be reconsidered. If lost it can not be
repeated unless there has been intervening business. Its effect is
to adjourn the assembly to the next regular time of meeting. And
unfinished business is the first in order at the next meeting after
the reading of the minutes, unless the next time of meeting is more
than a year from then, in which case an adjournment puts an end
to all unfinished business.
300 MANUAL OF THE LAW.

 

19. Rights of Members. ‘Questions relating to the rights of
the assembly or its members takes precedence of all excepting the
two last mentioned. When such a question is raised the chairman
must decide whether it is a privileged one or not, and from his
decision an appcal may be taken by any two members. Such
questions may be referred, or laid upon the table, or have any
other subsidiary motion applied to them. As soon as they are
disposed of the assembly resumes the consideration of the ques-
tion interrupted.

20. Orders of the Day. When any matter has been set for
consideration at any particular day or hour, it becomes “the order
of the day ” for that time, and it cannot be considered before unless
by a two-thirds vote. When the day or hour arrives the motion
calling the matter up takes precedence of all others but the three
last mentioned. It is customary for many bodies to adopt a regu-
lar order of business for the day.

21. Appeals and Questions of Order. When a point of
order is raised by a member, it takes precedence of the question
giving rise to it, and must be decided promptly by the chairman
without debate. If any member objects to the decision, he may
say: “TI appeal from the decision of the chair.” If the appeal is
seconded, the chairman at once states the question, “Shall the decis-
ion of the chair stand as the decision of the assembly?” A tie vote
sustains the chair. Any privileged motion, if made pending an
appeal, takes precedence of it. An appeal can not be amended
nor debated if it relates simply to indecorum, or to transgressions
of the rule, or if made while the previous question is pending. In
other cases it can be debated, and in all cases the chairman can
state the reason upon which he bases his decision. ‘The vote on
an appeal may be reconsidered. A member desiring to raise a
point of order should say: “ Mr. Chairman, I arise to a point of
order.” The chair requests the member to state his point of order.
Which he may then do and the chair at once pronounces his decis-
ion. If no appeal is taken the first member resumes his speech,
unless the decision was that he is out of order, without a vote of
the assembly to that effect.

22. Objection to the Consideration of a Question. When
any principal motion is put and the question upon it stated, any
member may object to its consideration, and the objection need
not be seconded, It can not be debated or amended, but the chair-

wn
PARLIAMENTARY PRAOTICE. 30!

 

man immedtately puts the question: “ Shall the question be con-
sidered?” If decided in the negative by a two-thirds vote the
whole matter is dismissed for that session, otherwise the discussion
continues as if the objection had not been made.

23. Reading Papers. Where a motion is made relating to
any papers which have been laid before the assembly, every mem-
ber has the right to hear such papers read at least once before hav-
ing to vote upon them. And the chairman should direct them to
be read when it has been asked for information, and not for delay.
If an objection is made a motion is necessary, which motion takes
precedence of the principal question and can not be debated or
amended.

24. Suspension of the Rules. Where rules of debate have
been adopted they can not be suspended, except for a definite pur-
pose, and only by a two-thirds vote. When for any purpose it is
desirable to suspend them, the motion should be made in this form:
“T move to suspend the rules which interfere with (supply the
object).” Such motion is not debatable, it can not be amended
or reconsidered.

25. To Lie on the Table. This is a subsidiary motion and
takes precedence of all others of its class, yielding only to privi-
leged and incidental questions. It is not debatable, can not be
amended, and if decided affirmatively can not be reconsidered. ‘Its
effect is to remove the subject from consideration until the assem-
bly votes to take it from the table. It carries with it everything
pertaining to it, so that if an amendment be laid upon ae table
the subject which it amends goes there with it.

26. The Previous Question. The object of this motion is to
suppress debate and bring the assembly to a vote upon the princi-
pal question. Free debate is always desirable, and is allowed upon
all motions which have the effect of adopting or finally disposing
of any original question. Yet a minority may make improper use
of this privilege and so may obstruct and delay business. It is
necessary, therefore, to have methods by which debate may be
closed. If it seems that a member or faction is talking just to
consume time, any member obtaining the floor may “call for the
previous question.” If the call is seconded, the chairman instantly
puts the question: “Shall the main question now be put?” It it
is carried by a two-thirds vote all debate must stop, unless the

_pending measure is one which nas been reported from a commit-
302 MANUAL OF THE LAW.

 

tee, in which case the committee man reporting it has, as in other
cases, a right to close the debate. The chairman then puts the
matter to vote, first on the motion to amend, if that has been
made, and then on the main question as amended. The previous

question takes precedence of every debatable question, and yields
only to privileged and incidental motions, and the motion to lie on

the table. The previous question is sometimes called the “ gag”

law. It should require a two-thirds vote to carry it, though in
the house of representatives the practice is to have it seconded by

a majority, and itis then carried by a majority vote. It is not

allowed in the U.S. senate. The previous question can be called

for on an amendment, in which case, if it carries, it leaves the

main question open for debate, Many societies have a rule limit-

ing the time allowed for debate. In such societies the object of

the previous question may be accomplished by simply insisting on

the rule. Usually a member can not proceed beyond the limit

of the rule unless he obtains unanimous consent.

2%. To Postpone to a Certain Day. The effect of this
motion is to carry the whole matter it refers to over to the time
specified, and it can not be considered before that time except by
a two-thirds vote. The motion takes precedence of the motion to
commit, or amend, or to indefinitely ‘postpone, and it yields only
to the motion to lie on the table and to privileged and incidental
questions, and the previous question.

It is not in order to postpone to a day beyond the end of the
session.

28. To Refer to a Committee. Very many assemblies have
regular standing committees appointed to consider various subjects,
and it is customary to refer most matters to one of these commit-
tees before they are considered in the assembly. Thie is done by
a motion “#0 commit,” which takes precedence of the motions to
amend or to postpone indefinitely. It may be amended by altering
the committee or by giving instructions, and it is debatable. In
societies having no committees it is sometimes desirable to create
one for the purpose of referring to it some difficult or delicate
subject that may have arisen. The motion then is “to refer to a
committee to be appointed by the chair,” or “to be elected,” as the
case may, be.

29. The Motion to Amend. This is one of the most common
motions, It takes precedence only of the question it proposes to
PARLIAMENTARY PRACTICE. 303

 

amend, yielding to all other motions. It may be made by moving
to “add to,” to “insert,” to “ strike out and insert,” to * sudsti-
tute” another motion for the one pending, or to “divide the gues-
tion.’ Any amendment is in order which has a direct bearing on
the principal question, though its effect may be to make the prin-
cipal question have an exactly opposite meaning. For example:
A motion for a vote of censure may be amended by inserting the
word “thanks” in place of the word “censure.” -All motions may
be amended except the motions to adjourn, to lie on the table, for
the order of the day, for the previous question, to postpone indefi-
nitely, to reconsider, and all incidental questions. An amendment
of an amendment cannot be amended.

30. To Postpone Indefinitely. The effect of this motion is
to remove the question from before the assembly during that ses-
sion. It takes precedence only of the question to which it relates.
It cannot be amended, but it opens to debate the entire question
which it proposes to postpone.

31. To Reconsider. When any principal question has been
acted upon by the assembly it cannot be taken up again during the
same session, except by a motion “fo reconsider.” The motion to
adjourn, and privileged and incidental motions (except a motion for
the orders of the day and for a suspension of the rules), may be
renewed after the transaction of intervening business, or the intro-
duction of any motion which changes the state of affairs; but any
main question, when once finally acted upon, is beyond the power
of the assembly except on a motion to reconsider the vote. Such
a motion may be made at any time during the day on which the
vote was taken, but can only be made by one who voted with the
prevailing side. It can be made even when another member has
the floor, but is then only “entered on the minutes,” and cannot
be considered until the pending measure is disposed of. If then
called up it takes precedence of every motion except to adjourn
and to fix the time at which to adjourn. It cannot be amended,
and is debatable or not, just as the question it calls up is or is not.
If that question is debatable it opens the entire merits of the origi-
nal matter, and if carried, places the original question in exactly
the same position that it had before the first vote upon it was
taken.

32. Committees. Most deliberative bodies have regular com-
mittees who do the preliminary work by way of preparing mat-
304 MANUAL OF THE LAW.

 

ters for formal action by the assembly. These committees are
either “Standing Committees,” which hold during the session,
“Select Committees,” appointed for a special purpose, or the
“Committee of the Whole,” consisting of the entire assembly.
Committees usually proceed informally, and allow the greatest
freedom of debate. Any member may speak as often as he
wishes, and the only way to close or limit debate, is for the assem-
bly, in case of the Committee of the Whole, to vote that debate in
committee shall cease at a certain time.

Committees are usually appointed by the chairman who should
observe this rule in his appointments. If the committee is one for
action (as a committee of arrangement) only those should be
placed upon it who are favorable to that action, and the person
moving for the appointment of the committee should generally be
made its first member. If, however, the committee is for deliber-
ation and investigation, it is important that all parties be repre-
sented upon it, so that the fullest discussion may take place and
thus the chances of unpleasant debate in assembly be diminished.

The first person named on the committee acts as its chairman,
unless the committee by vote elect another. When the assembly
resolves itself into the committee of the whole, the chairman calls
upon any member to preside, and then vacates the chair. It can
only consider the questions referred to it, and the only motions in
order are to “amend” and “adopt.” When it is through with
the consideration of the subject refered to it, or wishes to adjourn,
a motion must be made that “the committee rise and report.” If
the motion carries, the chairman resumes his seat, and the member
who presided over the committee reports the progress made by it.

33. Reports of Committees. When a committee has com-
pleted its consideration of a question it embodies the results of
its deliberations in a report. The report can only contain what is
agreed to by a majority of the committee. The minority may also
make a report, but it can only be considered by the assembly vot-
ing to substitute it for the report of the committee. A majority
report commences: “Your committee on ———— to which was
referred, etc., respectfully report, etc.” A minority report com-
mences: ‘ The undersigned, a minority of the committee to which
was referred, etc.” The chairman of the committee usually reads
the report to the assembly. This may be done after a vote to
“ receive the report,” or without that formality. When the report
PARLIAMENTARY PRACTICE. 305

 

has been read, the committee, unless it is a « standing committee,”
is thereby dissolved, though it is revived by a motion to “ recom-
mit.” When the assembly is ready to consider the report a motion
should be made to “accept,” “ adopt,” or « agree to” it. All of
these have the same effect when carried, that is to make the action
of the committee become the action of the assembly. When the
report has been thus adopted it may be debated, amended, or
treated just as though the matter had been introduced by a mem-
ber and there had been no committee.

34. Debate. When a motion has been made and seconded, it
is stated by the chair. It then becomes the “question,” and if
debatable, is open for discussion, A member desiring to speak
upon it should rise in his seat and address the chairman by his
proper title, as “Mr, Chairman,” “Mr. President,” “ Mr. Speaker,”
‘Mr. Moderator,” etc., as the case may be. Parliamentary cour-
tesy requires the presiding officer to first recognize the member
who made the motion, or if the subject before the house is the
report of a committee, the member who presented the report is
first entitled to the floor. This member is also entitled to close the
debate. Even after the previous question has been ordered, if the
matter under discussion is the report of a committee, the commit-
tee man who made the report is entitled to close the debate, and is
at once assigned the floor by the Chairman. With this exception,
no member can speak more than once to the same question, nor
longer than fifteen minutes at one time without leave of the assem-
bly, and the question of granting leave shall be decided by major-
ity vote without debate. The above limit may be changed by
rule if circumstances require.

35. Decorum in Debate. A member, in debating, should
confine himself strictly to the matter before the assembly. He
should avoid all personalities. He should not reflect upon the
motives of any member, but should confine himself to measures.
He should not refer to other members by name, but should describe
them in some other way, as “the gentlemen who have opposed
this measure,” or “the member who spoke last,” etc. He must
not use disorderly or discourteous words. When called to order
he should sit down till the question of order is decided. If decided
to be out of order he can not proceed, without leave of the assem-
bly, expressed by a vote, upon which question there can be no
debate. Disorderly words should be taken down by the clerk.
306 MANUAL OF THE LAW. .

 

While they are being considered by the assembly the person hav-
ing used them should retire from the room.

36. Punishment of Members. An assembly has the right to
enforce its own laws, and to punish its members, but the punish-
ment can only extend to the expulsion from the society. The soci-
ety may, if necessary, give notice to the public that the member has
been expelled, but it has no right to publish the charges against
him. If it does its officers may render themselves liable for libel.
The assembly also has the right to decide by vote or rule who
may be present during the sessions, and to eject any person whe
disobeys such regulation, using only such force as is necessary, and
the chairman may detail members to remove the person without
calling upon the police.

37. Methods of Voting. There are several methods of voting
in common use, as by word of mouth, or vzva voce, by holding up
the hand, by rising, by calling the “yeas” and “nays,” and by
ballot. The most common method is as follows: After the ques.
tion has been stated, or if debatable, after it has been debated, the
chairman says: “As many as are in favor of [here state the ques-
tion] will say aye,” after the affirmative vote has been expressed
he says: ‘As many as are opposed say zo.” Or if the question is
upon the adoption of some resolution or report, the chairman may
say: “ You have heard the resolution (or report) read; those in
favor of its adoption will say aye,” “those opposed will say zo.”
The chairman should always distinctly announce the result of
the vote, as “the motion is carried—the resolution (or report) is
adopted.” If he is uncertain which side has prevailed he may put
the question a second time, When he announces the vote, if any
member doubts his accuracy he may call for a “division.” The
chairman then says: “A division is called for; those in favor of
the motion will rise.” After counting these and announcing their
number, he says: “Those opposed will rise.” He then counts
these, announces their number, and declares the result, If neces-
sary he can appoint tellers to make the count. They should
be selected from both sides of the question. Any member can
change his vote before the result has been announced. The
method of taking a vote by “ yeas and nays” is for the chairman
to state both sides of the question at the same time; the clerk calls
the roll of the members, and as the name of each is called he rises
and says “aye” or “no,” according to whether he favors or opposes
PARLIAMENTARY PRACTICE, 307

 

the motion. When the roll call is completed the clerk reads the
names of those voting in the affirmative, and afterwards those
voting in the negative, that mistakes may be corrected. He then
gives the numbers to the chairman who announces the result.
This method is used in legislative bodies, but is not practical for
mass meetings, or for ordinary societies. If there is a tie vote the
question is usually decided by the casting vote of the chairman.

A majority vote is sufficient to decide all questions except the
following: 1. To Amend the Rules; 2. To Suspend the Rules;
3. To Make a Special Order; 4. To take up a Question out of its
Order; 5. To Sustain an Objection to the Consideration of the
Question; 6. To Order the Previous Question. These require a
two-thirds vote.

38. What is aQuorum? A quorum of an assembly is such
a number as is competent to transact business. Unless there is a
special rule upon the subject a majority constitutes a quorum. It
is not unusual, however, to adopt a much smaller number, some-
times as small as one-tenth or one-twentieth of the members. The
English House of Lords consists of about 500 members, but three
members constitute aquorum. ‘The House of Commons numbers
about 650 members, and 40 constitutes a quorum. The U. S.
Constitution provides that a majority shall constitute a quorum in
the Senate or House of Representatives.

39. Order of Business. When a society or an assembly has
no regular order of business, the following will be found useful as
a guide:

1. Reading minutes of previous meeting.

2. Reports of committees,

3. Unfinished business.

4. New business.

40. Trial of Members of Society. Every assembly has the
right to purify its own body, and may therefore investigate the
character of its members, and may require them to testify in a
trial for that purpose, and expel them if they refuse. Any mem-
ber who feels that the conduct of any other member has been
improper, may prefer charges against such other member, Such
charges should be referred to a committee of investigation. Some
societies have a regular standing committee whose duty is to
receive complaints and report cases for discipline. The report of
such committee need not go into details, but should contain a
308 MANUAL OF THE LAW.

 

recommendation of such action as the committee thinks proper.
If the charges are trifling, they so report them and the matter
drops. If serious, the report may recommend that the member
be expelled, and the report should in such case close with a resolu-
tion fixing the time to which to adjourn, and instructing the clerk
to cite the memher to appear before the society at the adjourned
meeting and show cause why he should not be expelled upon the
following charges, stating the charges in full.

After a member has been thus cited to appear for trial he
is theoretically under arrest, and is deprived of his rights as a
member until his case is disposed of. At the adjourned meeting
the trial takes place. If the accused does not appear, after receiv-
ing a written notice and copy of the charges from the clerk, that is
usually a sufficient cause for expulsion. The report of the com-
mittee and the charges should be read. No other evidence may
be necessary. The chairman of the committee acts as the prose-
cutor. He may introduce such other evidence as he thinks proper.
The accused may appear with counsel if he desires, may make an
explanation, may bring in witnesses, and either party may cross-
examine the others’ witnesses and introduce rebutting testimony.
When the evidence is presented the accused should retire from
the room. The assembly may then deliberate upon the matter
and take a vote upon the question of expulsion, or such other pun-
ishment as is thought best. A two-thirds vote is necessary to expel
amember. This is the rule of congress. Some assemblies, of au
ecclesiastical nature, like church tribunals, often settle important
property rights in the above manner, and their decisions are fol-
lowed and enforced by the civil courts,
CHAPTER III.

GLOSSARY OF LAW TERMS.

Abandonment. The relinquishment or surrender of rights or
property by one person to another. In insurance by “ abandon-
ment” is meant the transferring of the property of the insured, or
what is left of it, to the insurers.

Abate. A reduction made by the creditor for the prompt pay-
ment of a debt due by the payer or debtor. The removal of a
nuisance.

Abduction. Forcibly taking away a man’s wife, or his child.

Abet. To encourage or set another on to commit a crime.

Abscond. To go ina clandestine manner out of the jurisdic-
tion of the court.

Acceptance. The receipt of a thing offered by another with
an intention to retain it, indicated by some act sufficient for the
purpose. An assent and engagement to pay a bill of exchange
when due. See page 285.

Accessary. One who is not the chief actor in the perpetration
of the offence nor present at the performance, but is in some way
concerned therein, either before or after the fact committed.

Accession. The right to all which one’s own property pro-
duces, and the right to that which is united to it either naturally
or artificially.

Accommodation Paper. Promissory notes or bills of ex-
change, made, accepted, or indorsed, without any consideration
therefor.

Accord. A satisfaction agreed upon between the party injur-
ing and the party injured, which, when performed, is a bar to all
actions upon this account.
310 MANUAL OF THE LAW.

 

Accretion. The increase of real estate by the addition of por-
tions of soil by gradual deposition through the operation of nat-
ural causes to that already in possession of the owner. See Chap-
ter ITI., on page 19.

Acerue. To grow; to be added to as the interest or profit
added to the principal.

Acknowledgment. The act of one who has executed a deed
in going before some competent officer or court and declaring it
to be his act and deed. See page 282.

Act of God. An accident arising from some cause which oper-
ates without the influence or aid of man, as the winds, waves,
lightnings, etc.

Action. <A formal demand of one’s right from another person
or party made and insisted on in a court of justice.

Ad litem. For the suit. Guardian ad litem is a guardian
appointed to attend to a suit against a minor.

Administrator. A person authorized to manage and distri-
bute the estate of an intestate, or of a testator who has no exe-
cutor. See page 272, 277.

Admirality. A court having a very extensive jurisdiction of
marine causes, civil and criminal.

Adultery. The voluntary sexual intercourse of a married per-
son with a person other than the offender’s husband or wife.

Advancement. A gift by anticipation from a parent to a child
of a whole or a part of what is supposed such child would inherit
on the death of the parent. See Chapter XXXIIL., page 259.

Adverse Possession. The enjoyment of land under such cir-
cumstances as indicate that such enjoyment has been commenced
and continued under an assertion or color of right on the part of
the possessor.

Affidavit. A statement or declaration reducéd to writing and
sworn or affirmed to before some officer who has authority to
administer an oath.

Aflinity. The connection existing, in consequence of marriage,
between each of the married persons and the kindred of the other.
It is distinguished from consanguinity, which denotes relationship
by blood. See page 281.

Affirm, To make affirmation; to make a solem promise, before
an authorized magistrate or tribunal, by persons who conscien-
tiously decline taking an oath; which declaration is in law equiva-
lent to an oath,
GLOSSARY OF LAW TERMS. 311

 

A Fortiori, By the weightier reason.

Agency. A relation between two or more persons by which
one party, usually called the agent or attorney, is authorized to do
certain acts for or in relation to the rights or property of the other,
who is called the principal.

Agent. One who undertakes to transact some business or to
manage some affair for another by the authority and on account
of the latter, and to render an account of it.

Alias. A second or further writ; another name; an assumed
name.

Alibi. Presence in another place than that described. Being
in another place at the time of the commission of the crime.

Alien. A foreigner; one of foreign birth and unnaturalized.

Alimony, The allowance which a husband, by order of court,
pays to his wife living separate from him for her maintenance.

Allegiance. The tie which binds the citizen to the govern-
ment in return for the protection wich the government affords
him.

Ambiguity. Duplicity, indistinctness, or uncertainty of mean-
ing of an expression used in a written instrument.

A mensa et thoro. From bed and board; a limited divorce.

Ambassador. One sent abroad by the government to repre-
sent it at the court of another nation. A public minister. Public
ministers are of different ranks: 1. Ambassadors; 2. Ministers
Plenipotentiary, and Envoys Extraordinary; 3. Ministers resident;
4. Charges des affaires; 5. Commercial agents or consuls. We
have no ambassadors in America.

Ancestor. One who has preceded another in a direct line of
descent.

Ancillary. Auxiliary, subordinate; used of an administration
taken out in the place where assets are situated, which is subor ~
dinate to the principal administration.

Animus, The intention with which an act is done.

Annuity. A yearly sum stipulated to be paid another in fee,
or for life, or years, and chargeable only on the person of the
grantor.

Anonymous. Without name.

Ante-Nuptial. Before marriage; with a view to entering into
marriage.

A priori. From the former,
gia MANUAL OF THE LAW.

 

Appeal. The removal of a cause from a court of inferior to
one of superior jurisdiction for the purpose of obtaining a review
and retrial.

Appraisement. A just valuation of property.

Appraiser. A person appointed by competent authority to
, appraise or value goods or real estate.

Apprentice. A person bound in due form of law to a master
to learn from him his art, trade, or business, and to serve him dur-
ing the term of his apprenticeship. See page 188.

Appurtenances. Things belonging to another thing as prin-
cipal, and which pass as incident to the principal thing.

Arraign. To call a prisoner to the bar of the court to answer
the matter charged in the indictment.

Arrears. The remainder of an account, or sum of money in
the hands of an accountant. Any money due and unpaid ata
given time.

Arrest. To deprive a person of his liberty by legal authority,

Arrest of Judgment. The staying or stopping of a judg-
ment after verdict for legal cause. The motion for this purpose
is called a motion in arrest of judgment.

Arson. The malicious burning of a dwelling-house of another
person.

Articles. The distinct portions of a document in writing; as
Articles of Agreement, an account consisting of many articles,

Assault. An attempt or offer to beat another, accompanied
by a degree of violence, but without touching his person, as by lift-
ing the fist, or a cane in a violent manner, or by striking at him-
and missing him. If the blow aimed takes effect it is a battery,

Assign. To transfer or make over to another. To transfer
to, and vest in, certain persons called assignees, for the benefit of
creditors.

Assumpsit. He undertook (promised),

Attachment. A seizure, or taking by virtue of a legal pro-
cess.

Attorney. One put in the place or stead of another to manage
his affairs. Attorney in fact: A person to whom the authority
of another who is called the constituent, to transact any business
for him out of court. Attorney at-law: An officer in a court of
justice who is employed by a party in a cause to manage the same
for him.
GLOSSARY OF LAW TERMS. 313

 

A vinculo matrimonii, From the bonds of matrimony.

Award, The judgment or decision of arbitrators or referees
on a matter submitted to them. See Chapter XXXII, page 254.

Bail. To set free, on giving security for appearance at a cer-
tain day and place.

Bailment. A dclivery of something of a personal nature by
one party to another to be held according to the purpose or object
of the delivery, and to be returned or delivered over when that
purpose is accomplished. '

Bail-peace. A slip of parchment, or paper, containing a recog-
nizance of bail above, or batl to the action.

Bankrupt. A trader who breaks or fails, or becomes unable
to pay his debts in the ordinary course of trade; an insolvent
trader. In strictness no person but a trader can be a bankrupt.
Bankruptcy is applied to merchants and traders, zsolvency to
other persons.

Bankrupt Law. A law which upon a bankrupt’s surrender-
ing all his property to commissioners for the benefit of his cred-
itors, discharges him from the payment of his debts, and all liabil-
ity to arrest or suit for the same, and secures his future acquired
property from a liability to the payment of his past debts,

Bans of Matrimony. Notice of a marriage proposed, or of a
matrimonial contract, proclaimed in a church, or other place pre-
scribed by law, that any person may object, if he knows of any
kindred between the parties, of any pre-contract, or other just
cause why the marriage should not take place.

Bar. 1. The whole body of lawyers licensed in a court; the
legal profession. 2. A special plea, constituting a sufficient answer
to the plaintiff’s action. 3. The railing that incloses the place
which counsel occupy in courts of justice. Hence the phrase, at
the bar of the court, signifies in open court. 4. The place in court
where prisoners are stationed for arraignment, trial or sentence.

Barrister. A counsellor learned in the laws, qualified and
admitted to plead at the bar.

Barter. A contract by which parties exchange gocdds for
goods.

Battery. The unlawful beating of another. It includes every
angry and violent touching of another’s person or clothes, or any-
thing attached to his person or held by him. Spitting in one’s face
may be a battery. It is distinguished from an assault, inasmuch as
314 MANUAL OF THE LAW.

 

the latter does not necessarily imply a hitting ora blow. There
may be an assault without battery, but there can not be a battery
without an assault.

Bequeath. To give by will; applied to personal property.
Devised is applied to a gift by will of real estate. See Chapter on
Wills, page 268.

‘ Bigamy. The offense of contracting a second marriage during
the life of the first husband or wife.

Bill. A declaration in writing, to an equity court, expressing
some wrong the complainant has suffered from the defendant.

Bill of Costs. A statement of the items which form the total
amount of the costs of a party to a suit or action.

Bill of Credit. Among merchants it is a letter sent by an
agent or other person to a merchant desiring him to give credit to
the bearer for goods or money.

Bill of Entry. A written account of goods entered at the
Custom House, whether imported or intended for exportation.

Bill of Exchange. A written order or request from one per-
son to another, desiring the latter to pay to some person designated
a certain sum of money therein named.

Bill of Lading. A written account of goods shipped by any
person on board of a vessel, signed by the master, who acknowl-
edges the receipt of the goods, and promises to deliver them safe
at the place directed, damages of the sea excepted. A similar
instrument made by a carrier by land.

Bill of Sale. A formal instrument for the conveyance or
transfer of goods and chattels.

Blasphemy. In law, any false statement or language intended
as a reviling of God.

Blockade. In International law, the right to blockade the ports
of an enemy in war, and to exclude neutral vessels. To stop all
vessels from entering or leaving a port.

Bona Fide. In good faith, honest.

Bond. A writing under seal by which a person binds himself,
his heirs, executors, and administrators, to pay a certain sum, or
perform some act.

Bonus. A premium paid to a grantor or seller.

Bottomry. A contract by which the owner of a ship, or the
master as his agent, binds the ship as security for the payment of
money advanced for the use of the ship. *
GLOSSARY OF LAW TERMS. 315

 

Bounty. A premium offered to induce men to enlist into the
public service.

Breach, A breaking, or infraction, as of a law, or any obliga-
tion; non-fulfilment of a contract; a breach of promise of marriage.

Burglary. The breaking and entering the dwelling-house of
another in the night-time, with intent to commit a felony therein,
whether the felonious purpose be accomplished or not. In Ameri-
can law the crime includes offenses committed by day as well as
by night, and in other buildings than dwelling-houses; there are
various degrees of the crime in several of the States.
By-Law. A private law made by a corporation for its own
government; a law aside from the general or public law.
Capias, ‘“ You may take;” a writ of process commanding the
officer to take the body of the person named in it; also called
Writ of Capias.
Causa Mortis. On account of death.
Caveat, Let him beware. A notice given to an officer not to

do a certain act until the party is heard in opposition. In patent
laws, a description of some invention, designed to be patented,
lodged in the office before the patent right is taken out, operating
as a bar respecting the same invention from any other quarter.

Certiorari. A writ directing the proceedings or record of a
cause to be brought before a superior court.

Chancellor. A judicial officer; the president, or chief judge
of a court of chancery.

Chattel. Every kind of property except the freehold, or the
things which are a parcel of it; it is a more extensive term than
good or effects. Chattels are personal or real.

Check. An order for money, drawn on a banker or bank
payable on sight. :

Chose in action. A personal right to a thing not reduced to
possession, but recoverable by suit at law.

Chose in Possession. A thing in possession, as distinguished
from a thing in action.

Civil Death. In law, that which cuts off a man from civil soci-
ety, or its rights and benefits, as banishments, outlawry, etc.

Civil Law. In a general sense, the law of a State, city or
country.

Clearance. A certificate that a vessel has been cleared at the
Custom House; permission to sail.

?
316 MANUAL OF THE LAW.

 

Code. An orderly collection or digest of laws.

Codicil. A supplement to a will which in some way modi-
fies the will without repealing it. See Chapter on Wills, page
269.

Collusion. An agreement between two or more persons to
defraud a person of his rights by the forms of law.

Common Carrier. One who undertakes for hire to transport
goods from one place to another. See chapter on carriers, page

4226,

Common Law. The unwritten law, the law which receives
its binding force from immemorial usage and universal reception.
See page 3.

Competency. Legal capacity or qualifications; fitness; as the
competence of a witness.

Compos Mentis, “Of sound mind.”

Compounding a Felony. To accept a consideration for for-
bearing to prosecute.

Condonation. Forgiveness, either expressed or implied, by a
husband or wife, for a breach of marital duty, with an implied
condition that the offense shall not be repeated.

Confidential Communication. One made by a client to his
counsel, solicitor, or attorney, or vice versa, in professional confi-
dence, and which he is not permitted to divulge, and cannot be
required to divulge.

Confiscate. To appropriate property as a penalty to the public
use.

Consanguinity. Kindred by blood and birth between persons
descended from the same stock or common ancestry.

Consideration. The material cause of a bargain without which
it is not binding on either party. See page 7.

Consignee. The person to whom goods or other things are
shipped.

Consignment. The sending or delivering over of goods to
another person for sale.

Contempt. In law, disobedience of the rules, orders, or process
of a court of justice, or of the rules of a legislative body.

Contingent, Dependent for effect on something that may or
may not occur; as, a contingent estate; contingent use.

Continuance. The postponement of the proceedings in a cause
from one stated term of a court to another.
GLOSSARY OF LAW TERMS. 317

 

Contract. See page 5.

Contribution, Two or more persons being jointly liable for a
debt, and one should pay more than his share, he may demand that
the others contribute their shares respectively.

Conveyance, An instrument in writing by which property, or
the title to property, is conveyed or transmitted from one person
to another.

Conyeyancer, One whose business it is to draw and prepare
the necessary paper for conveying property.

Convict. A Ben found guilty, after trial, of a crime alleged
against him.

Coparcenary, Partnership in inheritance; joint heirship; joint
right of succession to an estate of inheritance.

Copyright, The legal right which an author has in his own
original production; the exclusive right to print, publish, and sell
his own literary, scientific, or artistic productions, for his own
benefit, during a certain period.

Counsel, One who gives advice in legal matters; also, collect-
ively the legal advocates united in the management of a case.

Court, 1. The hall, chamber, or place where justice is admin-
istered. 2. The persons officially assembled under authority of
law for the administration of justice. 3. A judge or judges sitting
for the hearing or trial of causes.

Covenant. A mutual agreement of two or more persons or
parties, in writing and under seal, to do or to refrain from some
act or thing; a contract.

Covert. Married.

Crime. Any violation of law punishable in the name of the
people, or which the State or Government will take notice of and
punish.

Crim. Con. Criminal conversation; illicit connection.

Custom. Such a usage as by common consent and uniform’
practice has become the law of the place.

Damages. The indemnity recoverable by a person who has
sustained injury, either in person, property, or rights, through the
act or default of another.

Days of Grace. Certain days allowed to the acceptor of a bill
or the maker of a note in which to make payment, in addition to
the time contracted for by the bill or note itself. See page 285.

Declaration. The paper, filed in an action at law, which
318 MANUAL OF THE LAW.

 

states the facts and circumstances upon which the plantiff bases his
claim.

Dedication. Giving land to the public for some public use.

De Facto. Actually; in fact.

Decree. The judgment or sentence of a court of equity.

Deed. A written instrument under seal containing a contract
or agreement, which has been delivered by the party to be bound
and accepted by the obligee. See Chapter on Deeds, page 37.

Default. The non-performance of a duty.

Defeasance. An instrument which defeats the force or opera-
tion of some other deed or estate.

Defense. A forcible resistance of an attack by force. The
denial of the truth or validity of a complaint.

Defendant. A party sued in a personal action.

De jure. From the law; by the law.

Demise. A conveyance, either in fee, for life, or for years.

Demurrer. An allegation that, admitting the facts of the pre-
ceding pleading to be true as stated by the party making it, he has
yet shown no cause why the party demurring should be compelled
by the court to proceed further.

De novo. Anew; afresh.

Deponent. One who makes a deposition under oath 3 who
gives written testimony to be used as evidence in a court of justice;
affiant.

Deposition. Testimony taken down in writing before some
competent authority, and in reply to interrogatories and cross-
interrogatories. See page 282.

Derelict. A thing voluntarily abandoned or utterly forsaken
by its proper owner. A tract of land left dry by the sea, and fit
for cultivation. A ship deserted by its crew.

Dernier resort. The last resort.

Descent. Hereditary succession to an estate. The ordinary
succession from parents. See Chapter XX XIII, page 256.

Detainer. Keeping possession of that which belongs to another.

Deviation. The voluntary departure of a ship, without neces-
sity, from the regular course of the voyage insured, thus releas-
ing the insurers from their responsibilities,

Disable. To deprive of legal right or qualification; to render
legally incapable.

Disbar. To expel from the bar,
GLOSSARY OF LAW TERMS. 319

 

Dispossession. Deprivation of possession of property, by some
process of law, and an order from the court.

Disseizee. A person disseized, or put out of possession of an
estate unlawfully.

Dissolve. To annul; to rescind; as to dissolve an injunction,

Distress. The act of distraining; taking possession of per-
sonal chattels, without process of law, from one who does not pay
rent; that which is taken by distraining to procure satisfaction,
See page 248.

Divorce. A dissolution of the marriage contract by a court or
other body having competent authority. This is properly a divorce,
and called technically, divorce @ vinculo matrimonii—from the
bans of matrimony. The separation of a married woman from
the bed and board of her husband—e mensa et thoro—from bed
and board.

Domain. 1. Ownership of land; 2. Absolute proprietorship;
3. An estate or patrimony which one has in his own right; 4.
Public Domain, the territory belonging to a State or to the gen-
eral government; public lands. 5. Aight of Eminent Domain.
Right which the State has to take private property for the public
use. .

Domicile. A permanent home and principal establishment
where one always returns after absence.

Dominant Estate. The tenement or estate to which a servi-
tude or easement is due from another estate, the estate over which
the servitude extends being called the servient estate. See page 88,

Dormant Partmer. <A partner who takes no share in the
active business of a company or partnership, but is entitled to a
share of the profits, and subject to a share in losses;—called also
silent partner.

Dower. 1. The property with which a woman is endowed;
especially that which a woman brings to a husband in marriage.
2. That portion of the real estate of a man which his widow
enjoys during her life, or to which a woman is entitled after the
death of her husband. See page 258.

Due-bill. A brief written acknowledgment of a debt.

Duress. The state of compulsion in which a person is induced
by the unlawful restraint of his liberty, or threatened violence, to
make a deed or contract, or to discharge one, or to commit an

offense.
320 MANUAL OF THE LAW.

 

Earnest. Money advanced as a pledge to bind the parties to
the performance of a bargain.

Easement. A liberty, privilege, or advantage without profit,
which one proprietor has in the estate of another proprietor, dis-
tinct from the ownership of the soil, as, a way through his lands,
water-course, etc. See Chapter XI.

Embezzlement. The fraudulent appropriation of anything
that has been entrusted to one’s care and management. :

Emblement. The right to the produce or fruits of land sown
or planted. See page 15.

Eminent Domain. (See Domain.)

Enceinte. Pregnant, with child.

Eneumbrance., Every right to, or interest in, an estate to the
diminution of its value, as a mortgage, a lien for taxes, a judg-
ment, etc.

Entail. An estate entailed, or limited in descent to a particular
heir or heirs.

Enter. To go into or upon lands, and take actual possession
of them.

Equity. A system of jurisprudence administered in Courts of
Equity, supplemental to law, the object of which is to supply the
deficiencies of the courts of law, and render the administration of
justice more complete.

Equity of Redemption. The advantage allowed to a mort-
gagor of a certain time to redeem lands mortgaged, after they have
been forfeited at law by the non-payment of the sum of money
due to the mortgagee at the appointed time. See Chapter VI.

Error. A mistake in the proceedings of a court of record in
matters of law or of fact.

Escheat. The falling or reverting of real property to the
State.

Escrow. A deed or bond delivered to a third person, to hold
till some act is done or some condition is performed, and which is
mot to take effect until then,

Estate. The interest which any one has in lands, tenements,
or other effects; as an estate for life, for years, at will, etc. See
page 12.

Estoppel. The stopping one’s setting up a fact or denying
one, where his previous conduct has implied the contrary. See
page 20.
GLOSSARY OF LAW TERMS. 321

 

Eviction. Dispossessing a person of lands or tenements by
due process of law.

Evidence. That which is legally submitted to a competent
tribunal, as a means of ascertaining the truth of any alleged mat-
ter of fact under investigation before it.

Exception. An objection taken in the course of a trial, or as
to the decision of a judge in the course of a trial, or in his charge
to a jury.

Excise. The taxes or duties levied on commodities consumed
at home; distinct from customs, which are duties levied on imports
and exports.

Execution. A judicial process for obtaining possession of
anything recovered by judgment of law; execution of a will or
deed.

Executor, Executrix. One appointed by a person’s last will
to manage his estate and execute his will, See chapter on wills,
page 264.

Exemption. Free from that which binds others in respect to
duty, taxes; exempt from service on jury, military service, etc.

Ex officio. Officially; by virtue of the office.

Ex parte, A statement is called Ax parte where only one of
the parties gives an account of a transaction in which two or more
are concerned,

Ex post facto. Something done after another thing com-
mitted before, or where a law is made to meet a particular offense
committed previously. Ex post facto i.ws are prohibited by the
U. S. constitution.

Extempore. Off-hand; without delay or premeditation.

Extortion. The unlawful taking, by a public officer, under
pretense of his office, of any money or other gift, when none is
legally due.

Extradition. An international law, the delivering up of a
party charged with crime, a fugitive from justice, to the foreign
government to which he belongs.

Faec-simile, Do the same; a close imitation.

False Imprisonment. The deprivation of a man’s liberty in
an unlawful manner.

Fee. An estate of inheritance.

Fee-simple, When the estate is free and unconditional. An
322 MANUAL OF THE LAW.

 

estate of inheritance. This is the completest ownership which a
man can have in lands.

Fee-tail. When the estate is limited to certain heirs according
to the will of the first donor.

Felo de se. <A self-murderer; a suicide.

Felony. <A heinous crime; including generally, all crimes for
which the punishment is hanging or imprisonment in the State
prison.

Feme Covert. A married woman, under covert or protection
of her husband and not liable to action, :

Feme Sole. A single or unmarried woman.

Fiat. Zet zt de done. A short order or warrant of some judge
for making out and allowing certain processes.

Fiction. In law, a supposition that a thing is true, so that it
may have the effect of truth as far as is consistent with equity.

Fiduciary. One who holds property or other goods in trust
for another; a trustee.

Fieri Facias. That you cause to be made; a writ of execution.

Finding. The result of a judicial examination or inquiry,
especially into some matter of fact; that which is found by a jury;
a verdict.

Fine. A penalty for an offense committed.

Fixture. Personal chattels attached or affixed to real property.
See Chapter VIII.

Flaw. Any error or omission in indictments, or declarations,
which invalidates the proceedings.

Forcible Entry and Detainer. The entering upon and tak-
ing and withholding of land and tenements by actual force and
violence, and with a strong hand, to the hindrance of the person
having the right to enter.

Foreclosure. The act or process of foreclosing, or depriving
a mortgagor of the right of redeeming a mortgaged estate, or, as
it is said, cutting him off from his equity of redemption. See
Chapter VI, Sec. 16.

Foreign Bill. A bill drawn in one country or State, and pay-
_able in another.

Forfeiture. The losing of some right or property as a pen-
alty for some misdeed or negligence.

Forgery. The fraudulent making or alteration of any record,
deed, or writing, to the prejudice of another man’s right, particu-
GLOSSARY OF LAW TERMS. 323

 

larly counterfeiting the signature of another with intent to defraud;
the making of a thing in imitation of another thing.

Forum. A court; a place of justice.

Franchise. A particular privilege conferred by grant from a
sovereign or a government, and vested in individuals,

Fraud. An act or instrumentality by which unfair or unlaw-
ful advantage is sought to be gained deceitfully. Using fraud in
making contracts; a fraudulent bargain. Fraud vitiates every-
thing.

Freehold. Land and tenements held in fee-simple, fee-tail, or
for life.

Fugitive. One who has fled or deserted, and taken refuge
under another power, or one who has fled from punishment.

Fugitive from Justice. One who, having committed a crime
in one jurisdiction, flees or escapes into another to avoid punish-
ment,

Garnishee. One in whose hands the property of another has
been attached, in a suit against the latter by a third person; and
who is garnisheed or warned of the proceedings, and has notice of
what is required of him in reference to it.

Garnishment. Warning, or legal notice to one to appear and
give information to the court on any matter.

Gift. A voluntary transfer of real or personal property, from
one to another, without any consideration. It can be perfected
only by deed in case of real property, or by an actual delivery of
possession in case of personal property.

Good-will. The custom of any trade or business; the tendency
or inclination of persons, old customers, and others to resort to an
old established place of business; the advantage accruing from
such tendency or inclination.

Grant. A transfer of property by deed or writing; especially
an appropriation or conveyance made by the government; as a
grant of land.

Gratis. Without reward or consideration.

Guardian. One who lawfully has the care and custody of the
person, or estate, of another.

Guardian ad litem. A guardian appointed simply to attend
to a suit for a minor or other person.

Guaranty. 1. To undertake or engage that another person
shall perform what he has stipulated; 2. To undertake to be
324 MANUAL OF THE LAW.

 

answerable for the debt or default of another; 3. To engage to
answer for the performance of some promise or duty by another
in case of a failure by the latter to perform.

Habeas Corpus. You may have the body. A writ having for
its object to bring a party before a court or judge; especially, one
to inquire into the cause of a person’s imprisonment or detention
by another, with the view to protect the right of personal liberty.

Habendum, Zo have. One of the principal parts of a deed,
so called because it begins with this word, signifying Zo have. See
chapter on deeds, page 38.

Habitual Drunkard. One so given to the use of intoxicating
drink that he has lost the power of controlling his appetite for it.
(18 Pa. St., 172.)

Half-blood. The relationship existing between persons who
have but one common parent. A man’s two sons by different
wives are brothers of the half blood. At common law they never
inherit from each other. By the statutes of many of the States
they do.

Hearsay Evidence. The testimony that a witness may give
upon what he may have heard, but of which he has no personal
knowledge.

Heir. One who receives, inherits, or succeeds to the owner-
ship of any real property after the death of its owner.

Heir Apparent. One whose right to an estate is indefeasible
if he survives the ancestor, in distinction from Presumptive Heir.

Heir at Law. One who after his ancestor’s death has a right
to inherit his estate.

Heir by Devise. One who has no other right or interest in
the lands devised to him by will than the will of the testator gives
him.

Heir Presumptive. One who, if the ancestor should die
immediately, would be his heir, but whose right to the inheritance
may be defeated by the birth of a nearer relative, or by some other
contingency.

Heiress. The female heir to a man having an estate of inher-
itance in lands; and where there are several joint heirs they are
called Co-Hetrs or Co-Heiresses.

Heirloom. A chattel which, contrary to the general rule
regarding chattels, descends to the heir instead of going to the
administrator. See page 10.
“GLOSSARY OF LAW TERMS. 325

 

Hereditament, All the property that may be inherited or
come to the heir; lands, tenements, all movable things, whether
corporeal or incorporeal, which go to the heir,

Highway. A public or free street, road, or way by land or
water, open to all.

Homicide. The killing of any human being by the act of
man, of which there are three kinds: Szstifiadle, if caused by
unavoidable necessity; excusaé/e, if it happened by misadventure;
and felonious, if done without excuse.

Homestead. A person’s dwelling-place, with that part of his
landed property which is about and contiguous to it.

Hush Money. A bribe to secure silence; money paid to a per-
son not to reveal information or disclose facts.

Householder. The head of a family living with him in the
same house.

Housekeeper. One who occupies a house. He must occupy
the whole of it.- If he has simply a suite of rooms he is nota
housekeeper.

Hue and Cry. A pursuit of one who has committed felony.

Husband. A man who has a wife.

Hypothecate. To confer on a creditor a right in or to a thing,
by which the creditor obtains the power to cause that thing to be
sold for the discharge of a debt or engagement out of the pro-
ceeds; to subject, as property, to liability for a debt or engage.
ment without delivery of possession; to mortgage, as ships or other
personal property.

Idiet. One who has no understanding or intelligence from
his birth, and therefore is presumed by law never likely to attain
any. The law declares that a man is not an idiot if he has any
glimmer of reason, so that he can tell his parents, his age, or such
common matters; but a man who is born deaf, dumb, and blind is
looked upon by the law in the same light as an idiot.

Ignoramus. “We are ignorant”—written on a bill of indict-
ment by a grand jury, when the evidence is not sufficient to put
the person on trial.

Illicit. Not allowed or permitted by law; as an illicit trade;
an unlawful and mischievous transaction.

Illegitimate. Contrary to law. Usually applied to children
born out of wedlock, See page 259.

Tilusion. A species of insanity.
28
326 MANUAL OF THE LAW.

 

Imbecility. A species of insanity, usually congenital or exist-
ing from birth,

Immemorial. “Time whereof the memory of men runneth
not to the contrary.” Applied to the possession of land, etc.

Impanel. The writing down of the names of a jury; to com-
plete, or enroll, as a list of jurors in a court.

Impeach. To charge with a crime or misdemeanor; to accuse;
especially to charge an officer with misbehavior in office; to cite
before a tribunal for judgment of official misconduct; to impeach
a judge, etc.

Impeachment. The act of impeaching. The accusation of a
person for crimes and misdemeanors, and impropriety of official
conduct. A written accusation by the House of Representatives
to the Senate of the United States.

Impose. To lay as a charge; obligation, tax, duty; to enjoin;
to impose, as a tribute.

Imports. Duties or taxes laid, on goods imported into a country,
by the government.

Imprisonment. The act of imprisoning; confinement in a
prison; deprived of liberty. alse imprisonment is confinement
of the person, or restraint of liberty, without legal or sufficient
authority.

Improvement. In Patent laws, the term applied when an
addition of some useful thing to a machine, manufacture, or com-
position of matter is made.

Incapable. Unqualified in a legal sense; not having the con-
stitutional qualifications.

Incendiary. Any person who sets fire to a building.

Incident. Something appertaining to, and depending on an-
other, called the grizcipai.

Incompetency. Want of legal fitness to be heard or admitted
as a witness, or to act as a juror, in the trial of a cause.

Incorporeal. Existing only in contemplation of law; not
capable of actual visible possession. Jxcorporeal Hereditament,
a uight issuing out of a thing corporeal. Something that is inher-
itable, but is not visible, like a right of way or other easement.

Incumbrance. A burden or charge upon property; a legal
claim or lien upon an estate.

Indemnity, Exemption from damages or loss; security to save
harmless. Act of /ndemmnity, a law passed in order to relieve per-
GLOSSARY OF LAW TERMS. 327

 

sons from some penalty to which they are liable in consequence of
acting illegally, or in consequence of exceeding the limits of their
strict constitutional powers.

Indenture. An agreement or contract made between two or
more persons; so called because originally the papers or parch-
ments were indented or cut scallopwise, so as to correspond with
another writing containing the same words.

Indicia. Discriminating signs; marks; badges; tokens; indi-
cations. i

Indictment. A written accusation and formal charge of a
crime preferred to a court by a grand jury.

Indorse. To write one’s name upon the back of a paper, for
the purpose of transferring it, or to secure the payment of a sum
of money; to guarantee the fulfilment or performance of an obli-
gation.

Inducement. Any matter stated by way of explanation, pre-
amble, or introduction to the main allegations of a pleading.

In esse. 1n being.

In extremis. In the last moments; near death.

Infamy. The loss of character, or public disgrace, which a
convict incurs, and by which a person is at common law rendered
incompetent as a witness.

Infancy. The state or condition of one under age; or under
the age of twenty-one years; nonage; minority.

Infringement. In Patent law, the act of violating the right
of another; the unlawful interference with a patent or copyright.

Inherit. To take as heir at the death of the ancestor.

Inheritance. A perpetual right to an estate in a man and his
heirs; an estate which a man has by descent as heir to another;
an estate derived in due course of law.

Injunction. A writ granted by a court of equity, and, in some
cases, under statutes, by a court of law, whereby a party is required
to refrain from certain acts.

In propria persona. In his own person.

Inquest. An examination under authority of a court; an
inquiry into any matter, civil or criminal, by a jury. The grand
jury is often called the grand inquest.

Inquiry. Seeking for information; examining into facts.
Writ of Inquiry is an instrument in writing issued in certain
328 MANUAL OF THE LAW.

 

*

actions at law, where the defendant has suffered judgment to pass
against him by default.

Insanity. This is very hard to define. It is a dethronement
of the reason. A departure from the states of feeling and modes
of thinking usual to persons in health. See Chapter on Wills.

Insolvent. One who can not pay his debts; a condition of
bankruptcy.

Insolvent Law. A law affording relief to insolvent debtors.

Insurance or Assurance. A contract between parties, for
a stipulated premium, to make good any loss which another may
sustain by fire, shipwreck, or other cause specified in the policy of
insurance,

Interdict. An order of a court prohibiting some act, having
the like purpose and effect with a Writ of Injunction.

Interlocutory Order. An order which does not decide the
cause itself, only some intervening matter relating to it.

International Law. The law that pertains to the friendly
relations between nations. It is founded upon moral right. Civy-
ilized nations acknowledge it to be binding upon them,

Inter nos. Between ourselves.

Interregnum. A space between two reigns,

In terrorem. By way of warning.

In transitu. On the passage.

Interest. The right which a man has inathing. The price
which is paid for the use of money. For lawful rates of interest
the different States see pages 60-61.

Intervention. The act by which a third person, to protect
his own interest, interposes and becomes a party to a suit pending
between other parties,

Intestate. A person who dies without making a valid will.
Not devised or bequeathed.

Inventory. A schedule of all the goods and chattels, and
sometimes the real estate of a deceased person.

Investiture. The action of investing; giving possession. The
grant of land or a feud was perfected by tne ceremony or corpo-
real investiture, or open delivery of possession.

Invoice. In commercial law, a written account of goods sent
by a merchant to a purchaser, with the value and charges appended.

Ipso Jure. By the law itself,

Issue. The children begotten between a man and his wife.
GLOSSARY OF LAW TERMS. 329

 

In pleading, an issue is a material point affirmed by one party and
denied by the other.

Jeopardy. Peril or danger.

Jettison or Jetsam. The throwing out of a vessel, from
necessity, of a part of the cargo. The thing thrown out.

Jointure. A settlement of lands and tenements made over by
the husband to the wife, to be enjoyed after his decease.

Judgment. The decision of the court pronounced by the judge
as the final result of proceedings before him. An interlocutory
judgment is one given in the middle of the cause, as distinguished
from a final judgment or one that puts an end to the action.

Judicature. The power of distributing justice by legal trial
and determination. A court of justice. Extent of jurisdiction of
a judge or court.

Judiciary. That branch of government in which judicial
power is vested.

Jurisdiction. The legal power or authority invested in any
individual or court, of doing justice in the causes brought before
them. The territory within which the court acts.

Jurisprudence. The science of law; a knowledge of the
laws, or skill in iuterpreting and applying them; also the laws
themselves.

Jury. <A body of men, selected according to law, and sworn
to inquire into and try any matter of fact, and to declare the truth
of it on the evidence presented.

Jury of Inquest. Commonly called a Coroner’s Jury. Sum-
moned in cases of sudden or violent death, to try into the cause.

Jure gentium. By the law of nations.

Justifiable Homicide. The intentional killing of a human
being, but under such circumstances as the law holds sufficient to
excuse the person who commits it.

Justification. The showing of a sufficiently good reason in a
court why one has done the thing for which he is called to answer.

Kidnapping. The forcible abduction of a person from his own
country. It is not now essential that he be carried out of the
eountry. (8 N. H., 550.)

Kindred. Blood relations.

Laches. Neglect to do a thing at the proper time. Negli-
gence from which damages may arise.

:
339° MANUAL OF THE LAW.

 

Landing Charges. Fees paid on goods unloaded from a ves-
sel,

Landlord and Tenant. See Chapter XXX., page 244.

Land. Ground, soil, earth. See page 9g, Sec. 2.

Lapsed Devise, or Legacy. A devise or legacy which fails
or takes no effect, in consequence of the death of the devisee
before that of the testator, or for other cause.

Larceny. The felonious and fraudulent taking away the per-
sonal goods of another. Grand and Petit Larceny are distinctions
depending on the nature and value of the property taken.

Law Merchant. The body of rules and usages in force in
matters of commerce.

Law of Nations. Same as international law.

Lease. A letting of lands or tenements to another for a term
of years, or at will, for a rent or other compensation. See Chap-
ter XXX.

Leasehold. Lands or tenements held by virtue of a lease, or
conveyance, from the party having a right so to dispose of them.

Legacy. A bequest or gift by will of any personal effects; the
person bequeathing is called the testator, and the person to whom
it is bequeathed the legatee.

Legal Tender. Money which the law makes legal.

Legitimate. Lawfully begotton or born; born in wedlock;
as, legitimate heirs or children. In accordance with established
law.

Letter of Advice. A letter written by a merchant to his cor-
respondent advising or giving him notice of what bills he has
drawn upon him.

Letter of Attorney. A writing whereby a person constitutes
another to do a lawful act in his stead, as to receive debts, etc.

Letters of License. An instrument or writing granted by a
person’s creditors, allowing him a certain time for the payment of
his debts, by which means he is enabled to prosecute his business
without legal molestation.

Letter of Credit. A letter from one merchant or banker to
another, in another country, directing the latter to give credit to
the bearer, for which the former becomes responsible.

Letters of Marque and Reprisal. A commission granted by
a government to an individual to take the property of a foreign
GLOSSARY OF LAW TERMS. 33!

 

State, or of its subjects, as a reparation for some injury committed
by such State.

Letters Testamentary. An instrument granted by the Judge
of Probate to an executor after probate of a will, authorizing him
to act as executor.

Levari Facias. That you cause to be levied; a writ of exe-
cution,

Levy. The taking or seizure of property on executions to
satisfy judgments, or on warrants for the collection of taxes,

Lex Loci. The law of the place.

Lex Talionis. The law of retaliation in kind.

Libel. A written and published false statement calculated to
injure another by bringing him into ridicule or contempt.

Lien, A legal claim; a charge upon real or personal property
for the satisfaction of some debt or duty; the right which a credi-
tor has to retain the property of his debtor, until the debt has been
paid. :

Life Estates. Estates not of inheritance, but simply during
the life of the possessor.

Limitation. A certain period limited by statute after which
the claimant shall not enforce his claims by suit. It is generally
six years for personal actions and 20 years for real actions,

Loan. A bailment without reward.

Loco Parentis. In the place of the parent.

L. 8., Locus Sigilli. The place of the seal.

Lode. A metallic vein, or any regular vein or course,

Lynch Law. The practice of punishing men for crimes by
private, unauthorized persons, without a legal trial. This term is
derived from a Virginia farmer, named Lyzch, who thus took the
law of punishing offenders into his own hands.

Maihem, or Mayhem. A.corporal wound or hurt, by which
a man loses the use of a limb or member of the body; deprivation
of something essential.

Mainprise. The surrendering a person into friendly custody,
upon giving security that he shall be forthcoming at the time and
place required.

Maintenance. In Criminal law, an officious intermeddling
between others, by assisting either party with money or means to
prosecute or defend.

Majority. Being of age, ¢. e., twenty-one years or more.
332 MANUAL OF THE LAW.

 

Malfeasance. The doing of some act which a person ought
not to do.

Malicious. With wicked or mischievous intentions or motives,

Malum in se. Bad in itself; an evil in its own nature.

Mandamus. “We command.” A writ issued by a superior
court and directed to some inferior tribunal, or to some corporation
or person exercising public authority, commanding the perform-
ance of some specified duty.

Mania. A kind of insanity.

Manifest. A list or invoice of a ship’s cargo, containing a
description by marks, numbers, etc., of each package of goods, to
be exhibited at the Custom House.

Manslaughter, The unlawful killing of a man without malice,
express or implied.

Manumission. Making a slave free.

Mayor. The chief executive magistrate of a city.

Maxim. A principle of law universally admitted.

Mesne Process. An intermediate process, issuing pending the
suit, upon some collateral matter; also, all such processes as inter-
vene between the beginning and end of a suit.

Messuage. A dwelling-house with its adjoining land, appro-
priated to the use of a household.

Misdemeanor. An offense less than a felony. Crimes and
Misdemeanors are synonymous terms, though, in common usage,
the word crime is made to denote such offenses as are of a more
atrocious kind; while smaller faults and omissions of less conse-
quence are comprised under the name of Misdemeanors.

Misfeasance. The improper doing of an act which a person
might lawfully do.

Mitigation of Punishment. Remitting the severity of sen-
tence.

Moiety. One-half, or one of two equal parts; as a Moiety of
an estate, of goods, or of profits.

Mortgage. A conveyance of property, upon condition, as
security for the payment of a debt or the performance of a duty,
and to become void upon payment or performance. See Chapter
VI.

Motion. In law, an application in court either by the parties
themselves or their counsel, in order to obtain some order or rule
of court.
GLOSSARY OF LAW TERMS. 333

 

Movables. Property not fixed or real; personal chattels; goods
that may be moved from place to place.

Municipal. Pertaining to city.

Municipal Law. The law of a nation or State as distinguished
from international law. See page 1.

Murder. The act of willfully and feloniously killing a human
being with malice prepense.

Mutatis Mutandis. Changing what ought to be changed.

Mutiny. <A revolting from lawful authority, particularly
among sailors and soldiers; to rise against one’s superior officer.

Navigable. Capable of being navigated. See page 82.

Naturalization. The act by which an alien is made a citizen
of the United States.

Next of Kin. This term is used to signify the relations of a
person who dies without a will.

Nisi Prius. Uviess before. Applied to terms of court; held
generally by a single judge, with a jury, for the trial of jury
causes.

Nolle Prosequi. An entry made on the record by the plain-
tiff, or prosecuting attorney, that he will not further prosecute the
suit.

Nole Contendre. A plea,- by the defendant, in a criminal
prosecution, equivalent to that of guilty, for all the purposes of
that prosecution.

Non-age. An age less than twenty-one.

Non Compos Mentis. Not of sound mind, memory, or under-
standing.

Non est factum. The general issue in an action of debt on
bond.

Non est inventus. The return of a sheriff on @ writ, when
the defendant is not found in his county.

Nonfeasance. An omission of what ought to be done.

Non pros. A judgment entered against the plaintiff in a suit
where he does not appear to prosecute; a discontinuance of further
proceedings in criminal cases.

Non-suit. The name of a judgment given against the plaintiff
when he is unable to prove his case, or when he refuses or neglects
to proceed to the trial of a cause after it has been put at issue.

Non-user. Neglect to make use of a thing.

Notary Public. A public officer who attests, or certifies,
334 MANUAL OF THE LAW.

 

deeds, and other writings, usually under his official seal, and to
make them authentic in another country. His duties chiefly relate
to instruments used in commercial transactions. See Chapter on
Notaries, page 278.

Note of Hand. A popular name for a promissory note.

Nundum paectum. A contract not binding in law from want
of consideration.

Nuncupative Will. An oral or verbal will made in expecta-
tion of death, before witnesses, and afterwards reduced to writing.

Nuisance. Any annoyance which tends to the hurt or incon-
venience of another. See Chapter XX., on Nuisances, page 170.

Nulla Bona, The return made to a writ of execution by the
sheriff when he can find no goods upon which to levy.

Nune pro tune. This means that a thing is done at one time
which ought to have been done at another. Orders and judg-
ments are sometimes entered unc pro tunc.

Oath. A pledge given by the person taking it that his attesta-
tion or statement is made under an immediate sense of his respon-
sibility to God. A solemn invocation to Deity.

Oath of Allegiance. The oath which the person takes when
about to become a citizen of the United States. ?

Obligation. A bond containing a penalty on condition of not
performing certain covenants annexed.

Onus Probandi. The burden of proof.

Ordeal. An ancient form of trial to determine guilt or inno-
cence practiced by the rude nations of Europe, and still practiced
in many parts of the East.

Ordinance. A statute or law; a rule established by authority
Usually applied to the laws of a city.

Ordinary. An officer who has original authority and powers
in his own jurisdiction. A judicial officer having powers such as
a surrogate or judge of probate.

Original Writ. The beginning or foundation of a suit; and
is a mandatory order from the court or judge.

Overt Act. An open act, capable of being sustained by legai
proof.

Oyer and Terminer. A commission directed to the judges
and other gentlemen of the courts to which it i§ issued, by virtue
whereof they have power to hear and determine treasons, felonies,
etc,
GLOSSARY OF LAW TERMS. 335

 

Oyez. Hear ye. An expression with which crier opens court.

Pains and Penalties. In English law, an act of Parliament
to inflict pains and penalties beyond or contrary to the common
law, in the particular cases of great public offenders.

Pandeets. An abridgment of Roman Law made by order of
the Emperor Justinian in A. D. 533.

Par. Equal. “Worth roo cents on the dollar.” Stocks are
at par when they sell for their nominal value.

Parcenary. Holding lands and tenements in copartnership by
two or more persons. <A joint tenancy or tenancy in common.

Pardon. An act of Grace. Freeing a prisoner from penalty.

Parliament. The legislative branch of the Government of
Great Britain. It is composed of the House of Lords and House
of Commons.

Parol. By word of mouth; an oral declaration; as Parol evi-
dence.

Parol Contract. Any contract not of record or under seal,
whether oral or written.

Parricide. One who murders his parent.

Particeps Criminis. A partaker in the guilt of another, not
as a principal, but an accessory.

Parties. Persons. Those who take part in the performance
of an act, parties to a contract, parties to a suit.

Partition. The division of lands, tenements, etc, among
co-heirs or parceners.

Partnership. An association of two or more persons to carry
en some branch of business in common; a firm or house. Szlent
partnership, one in which capital only is furnished by one or more
partners, having no action, direction, or‘ co-operation in the busi-
ness.

Passport. A license or letter from one government to another
granting liberty to a person to pass through a foreign country.

Patent. A privilege from the government granted by Lzet-
TERS PATENT, conveying to the individual or individuals therein
specified, the sole right to make, use, or dispose of some new
invention or discovery, for a certain specified time.

Patentee. One to whom a patent is granted.

Paternity. The state or condition of a father.

Patricide. One who kills his father.

Patroon. InN. Y. the lord of a manor,
336 MANUAL OF THE LAW.

 

Pauper. One so poor that he must be supported at public
expense.

Payment. The fulfillment of a promise. The performance of
an agreement.

Penal Code. A code of laws concerning the punishment of
crimes.

Penalty. A fine or forfeiture by way of punishment. The
law inflicts Penalties, sometimes pecuniary and sometimes per-
sonal. The non-fulfillment of a bond or other agreement sub-
jects the party to the penalties therein expressed.

Per capita. By the head. A division equally among indi-
viduals.

Peremtory Challenge. A challenge or right of challenging
jurors, without showing cause.

Perjury. The act of knowingly and willfully taking a false
oath in a court of justice, by a witness lawfully required to depose
the truth in a matter of some consequence to the point in question.
A false oath, therefore, taken before no court, or before a court
incompetent to try the issue in question, does not constitute the
offense of perjury.

Per se. By itself.

Piracy. The act or crime of robbing on the high-seas; the
taking of property from others by open violence, with intent to
steal, and without lawful authority, on the sea.

Placer. A gravelly place where gold is found.

Plaintiff. The person who commences an action or suit at
law.

Plea. That which is alleged by a party in support of his cause;
the defendant’s answer to the plaintiff's declaration,

Pleadings. The mutual altercations between the plaintiff and
defendant, or written statements of the parties in support of their
claims.

Pledge. Personal property delivered to, or deposited with,
another as security for a debt or engagement. Dead Pledge, a
mortgage. Living Pledge, the conveyance of an estate to another
for money borrowed, to be held by him until payment out of the
rents and profits.

Pluries. Very often a third writ after two have issued against
a defendant.

Police. That branch of administrative justice which extends
GLOSSARY OF LAW TERMS. 337

 

to the prevention of crimes, by watching over public order, pre-
venting breaches of the peace, removing nuisances, etc., of a city
or incorporated town.

Policy of Insurance. The instrument by which a contract of
indemnity is effected between the insurer and the insured; the
writing containing the terms or conditions of a contract of insur-
ance against loss by fire, at sea, or on life.

Poll. An old word signifying head. Thus a poll tax is a tax
on each person.

Posse Comitatus. The armed power of the country, or the
attendance of all persons charged by sheriff to assist him in the
suppression of riots, etc.

Postea. Afterward; the endorsement of the verdict upon the
record.

Post-Mortem. After the death.

Pound. A place where stray animals may be placed until
reclaimed according to law.

Practice. The form, manner, and order of conducting and
carrying on suits and prosecutions through their various stages,
according to the principles of law, and the rules laid down by the
courts,

Precedent. A judicial decision which serves as a rule for
future determination in similar or analogous cases; an authority to
be followed in courts of justice.

Precept. A command in writing, sent out by a magistrate for
bringing a person or a record before him.

Pre-emption. The right given to settlers upon the public lands
of the United States to purchase them at a limited price in pref-
erence to others. See page 23.

Premium. The consideration for a contract of insurance.

Prescription. The mode of acquiring property by long con.’
tinued use. See page 19.

Presentment. A declaration or report made by a grand jury
or others, of any offense to be inquired of in the courts to which it
is presented.

Presumption. An inference made by law of certain facts
from certain other facts.

Presumptive Evidence. That which is derived from circum-
stances which necessarily or usually attend a fact, as distinct from
direct evidence or positive proof.
338 MANUAL OF THE LAW.

 

Presumptive Heir. One who would inherit an estate if the
ancestor should die with things in their present state, but whose
right of inheritance may be defeated by the birth of a nearer heir
before the death of the ancestor.

Prima Facie. On its face. At first appearance.

Prima Facie Evidence. That evidence which is sufficient to
establish the fact, unless rebutted or contradicted.

Primogeniture. <A right by which the estate goes to the
eldest son or male heir, in preference to the other children or heirs.
It does not exist in the United States. See page 256.

Probate. Official proof before a competent officer that the
instrument offered, purporting to be the last will and testament of
a person deceased, is indeed his lawful act.

Probate Court. A court for the probate of wills. See page
276.

Process. The whole course of proceedings in a cause, real or
personal, civil or criminal, from the original writ to the end of the
suit. Original Process is the legal method of compelling the
defendant to appear in court. desne Process is that which issues,
pending the suit, upon some collateral or interlocutory matter,
final Process, a writ of execution in an action of law.

Proctor. An officer employed in Admiralty causes, answering
to an Attorney at common law, and to a solicitor in equity.

Pro Rata. According to a proportion.

Prosecution. The institution and carrying on of a suit in a
court of law or equity, to obtain some right, or to redress or pun-
ish some wrong; the process of exhibiting formal charges against
an offender before a legal tribunal, and pursuing him to final judg-
ment on behalf of the State or government, as by indictment.

Pro Tanto. For so much.

Protest. In Maritime law, a declaration made by the master
of a vessel, before a notary, consul, or other authorized officer,
upon his arrival in port after a disaster, stating the particulars of
it, and showing that any damage or loss sustained was not owing
to the fault of the vessel, her officers, or crew, but to the perils of
the sea, etc. The act of a notary public on behalf of the holder of
a bill or note, protesting against all parties liable for any loss or
damage by the non-payment of the bill or note. See Chapter on
Notaries Public.

Proxy. One who acts or stands for another in his absence.
GLOSSARY OF LAW TERMS. 339

 

Puberty. The age in boy of 14 and in girls of 12 years.

Putative. Reputed, supposed. The word is applied to the
father of an illigitimate child. See page 259.

Quare clausum fregit. “Why he broke the close.” An
action for damages to real estate.

Quarantine. The period of forty days, or less, during which
time the crew and ship infected with contagious disease are obliged
to remain in some appointed place, without holding intercourse
with the shore. The time of quarantine varies in different coun-
tries.

Quash. To abate, to annul, or to make void; as to quash an
indictment.

Quasi. A Latin word meaning, almost, similar to.

Quit Claim. <A form of deed, explained on page 41.

Quid pro quo. A mutual consideration.

Quo animo. With what intent.

Quo Warranto. A writ to inquire by what authority, right,
or title, any person or corporation holds a franchise, exercises an
office, and the like.

Quorum. The number of persons needed to legally transact
business in an assembly. See page 307.

Ratification. The confirmation of an act, or decision. Giving
force to a contract. Confirmation of a treaty.

Real Property. Land and the things fixed thereto, perma-
nent, or immovable, real estate as opposed to personal or movable
property.

Realty. Same as real property.

Real Action. An action for the recovery of real property.

Receiver. A person appointed to take charge of the estate
and effects of a corporation, and to do other acts necessary to the
winding up of its affairs.

Recognizance. A bond or obligation acknowledged in a court
before a judge, with a condition which requires the one making it
to do some specified act.

Recoupment. Reduction of the plaintiff’s damages in an action
because of some claim which the defendant has against the plain-
tiff.

Reference. The act of submitting a matter in dispute to the
judgment of one or more persons for decision. The process of
34° MANUAL OF THE LAW.

 

sending any matter for inquiry to an officer in order that he may
ascertain facts and report to the court. See Chapter XXXII.

Remainder. An estate in lands, tenements, etc., to be enjoyed
after the expiration of another estate.

Rent. Price paid for use of land, etc. See page 248.

Replevin. An action to recover possession of goods and chat-
tels which have been wrongfully taken or detained.

Replication. The plaintiff’s answer to the defendant’s plea.

Reprieve. A warrant for suspending the execution of sentence
upon a criminal. :

Rescission. The act of annulling a decree, judgment, or con-
tract.

Rescue. The violent taking away or causing to escape one
that is taken by lawful authority. ;

Residuary Clause. That part of the testator’s will in which
the residue of his estate is disposed of.

Residuary Devisee. The person to whom theresidue of real
estate is devised by a will.

Residuum, The remainder.

Res integra. An entire matter.

Res Judicata, That which has been already decided by the
Court.

Respondent. The party who makes an answer to a bill or
other proceeding in chancery.

Retainer. The act of a client by which he engages an attor-
ney or counselor to manage a cause, either by prosecuting it when
he is plaintiff or defending it when he is defendant. The retaining
fee.

Riot. A tumultuous disturbance of the peace by three persons
or more, assembling of their own authority, with an intent mutually
to assist each other against any one who shall oppose them in the
execution of some enterprise of a private nature, and afterward
actually executing the same in a violent and turbulent manner to
the terror of the people, whether the act intended were itself law-
ful or unlawful.

Riparian. Relating to rights in natural watercourses. See

Posuses IO5-III.
Robbery. The felonious and forcible taking from the person

of another goods or money to any value by violence or putting
him in fear,
GLOSSARY OF LAW TERMS. 341

 

Sale. An agreement by which one of two contracting parties,
called the seller, gives a thing and passes the title to it in exchange
for a certain price in current money to the other party, who is
called the buyer or purchaser, who on his part agrees to pay such
price. See Chapter XXV, page 209.

Salvage. A compensation given by the maritime law for ser-
vices rendered in saving property or rescuing it from impending
peril on the sea, or wrecked on the coast of the sea, or in the
Unitd States on a navigable river or lake where interstate or for-
eign commerce is carried on.

Scintilla. A spark; a very small quantity.

Scienter. An allegation of knowledge on the part of the:
defendant which is necessary to render him liable. See page 161.

Scroll. A mark, intended to supply the place of a seal, made
with a pen or other instrument of writing.

Seal. An impression upon wax, wafer, or some other tenacious
substance capable of being impressed.

Search Warrant. A warrant requiring the officer to whom
it is addressed to search a house or other place therein specified for
property therein, alleged to have been stolen, and, if the same shall
be found upon such search, to bring the goods so found, together
with the body of the person occupying the same, before the justice
or other officer granting the warrant, or some other justice of the
peace or other lawfully authorized officer.

Sedition. The raising commotions or disturbances in the State.

Seisin. Possession with an intent on the part of him whe
holds it to claim a freehold interest.

Servient. The term applied to the estate upon which an ease-
ment exist. The estate to which the easement belongs is called
the dominant estate. See Chapter on Easements, page 88.

Separation. A cessation of cohabitation of husband and wife
by mutual agreement.

Set-off. A demand which a defendant makes against the
plaintiff in the suit, for the purpose of liquidating the whole or a
part of his claim.

Sine die. “Without day.” Applied to an adjournment.

Slander. Words spoken which are injurious to the character
of another.

Solicitor. A person whose business is to be employed in the
care and management ef suits in courts of chancery.

24
342 MANUAL OF THE LAW.

 

Specialty. A written agreement sealed and delivered.
Specification. A particular and detailed account of a thing.
SS. Scilicet: that is to say. See page 281.

Statute. A law established by the act of the legislative power.

Stoppage in Transitu. A resumption by the seller of the
possession of goods not paid for, while on their way to the vender,
and before he has acquired actual possession of them. See Chap-
ter on Sales. Page 209.

Sub-Lease. A lease by a tenant to another person of a part of
the premises held by him.

Subpoena. A process to cause a witness to appear and give
testimony, commanding him to lay aside all pretences and excuses
and appear before a court, or magistrate therein named, at a time
therein mentioned, to testify for the party named, under a penalty
therein mentioned.

Suffrage. Vote; the act of voting.

Suicide. Self-destruction. °

Suit. An action.

Summon. To notify the defendant that an action has been
instituted against him, and that he is required to answer to it at a
time and place named.

Surety. A person who binds himself for the payment of a
sum of money, or for the performance of something for another
who is already bound for the same.

Surrogate. Same as Probate. See Chapter XXXVI.

Tenant. One who holds lands by any right, particularly one
who occupies lands or tenements at a yearly rent, for life, a term
of years, or at will. See Chapter XXX.

Tenure. The condition on which lands and tenements are
held.

Testament. The solemn act whereby a man declares his last
will as to the disposal of his estate after his death. Another name
for a will.

Title. A right which a person has to the possession of prop-
erty. See page 11.

Tort. Any private wrong or injury; a wrongful act for which
an action will lie. It is not the breach of a contract.

Trade-Mark. A symbol, emblem, or mark used by a manu-
facturer on his goods, the legal right in which is recognized }«
law.
GLOSSARY OF LAW TERMB. 343

 

Trespass. Any wrong done by one man to another, either to
his person or his property. See Chapter XIV for trespass upon
real property.

Trust. A right of property, real or personal, held by one
party for the benefit of another.

Trustee. One who has an estate or money put into his hands
for the use of another.

Turnpike. A highway over which the public have a right to
travel upon payment of toll, and on which the parties entitled to
the toll have the right to erect gates to insure its payment. (16
Pick., 175.)

Usury. The taking more interest for the loan of money than
is allowed by law.

Vagrants. Beggars, strolling and idle persons, who wander
from place to place, without any regular settlement.

Venue. The county in which the cause is tried. The place
from which the jury come.

Verdict. The determination of a jury upon any cause, civil or
criminal.

Vice versa. On the contrary; on opposite sides.

Viet armis. By force and arms; by unlawful means.

Viva voce. Verbally.

Vinculo Matrimonii. From the bonds of matrimony. A
complete divorce.

Voir dire. A term applied to the examination of a witness
previous to his examination in chief, to ascertain whether he is in
any way incompetent to give evidence in relation to the matter on
trial.

Waiver. A relinquishment of, or a refusal to accept a right.

Ward. A person placed under the care of a guardian,

Warrant. A writ issued by a justice of the peace or other
authorized officer, directed to a constable or other proper person,
requiring him to arrest a person therein named, charged with
committing some offense, and to bring him before that or so
other justice of the peace.

Warranty. See Chapter on Sales.

Waste. Injury done to land by the tenant. See Chapter XV.

Will. The disposition of one’s property, to take effect after

death,
344 MANUAL OF THE LAW.

 

Witness, One who testifies under oath to what he knows.

Writ. A mandatory precept issued by the authority and in the
name of the Sovereign or the State, for the purpose of compelling
the defendant to do something therein mentioned,
Missing Page
Missing Page
FORMS IN COMMON USE.

Importance of Having Correct Forms. The importance
vt having proper forms to follow in the drafting of legal instru-
ments can hardly be over estimated. The validity of a contract
may often depend upon the words with which it is expressed.
Valuable property rights may be lost by carelessness or inaccuracy
in drawing a document. Uncertainty wi always prevail where
new and untried forms are made use of. It will be best, therefore,
always to follow the old and well-tried precedents even though
they may sound a little queer.

Abstracts of Title. An abstract of title is a document pre-
senting in connected form the substance of the various instruments
en record affecting the ownership of a given piece u1 rea estate,
It is a brief history of the title which the seller proposes to convey.
It should commence, if possible, with the patent from the United
States, though it may be sufficient if it dates back to the title in
some person known to have held the land for a long series of
years or whose title has been pronounced goad in the courts. It
should, from that time down, state every matter of record affecting
the land. Of course there may be many facts affecting the title to
lands which are not evidenced by the records. The abstract may
exhibit a good title and yet there may be serious defects. Mar-|
riage may have created an undisclosed right of dower or a seller
may have been kept out of possession by an adverse claimant whe
may have gained title, hence absolute dependence cannot be placed
upon an abstract, though it will greatly aid in determining the
question of title. See Chapter on Examining Title, page 46.
There are numerous styles of drawing these instruments differing
in order of arrangement, but the following form will be found,
perhaps, as useful as any:
348 MANUAL OF THE LAW.

 

ABSTRACT OF TITLE

to Lots 1, 2, and 3, in Block 35, of the Labrosse Farm, in the City
of Detroit, State of Michigan.

Patent. Dated April 1, 1819. Conveys
: land described by metes and bounds,
The United States known as Private Claim 46, Wayne

to County, Michigan. Recorded in the
office of the Register of Deeds for
said County April 14, 1819, in Book
5 of Deeds, page 74.

Peter Labrosse.

Peter Labrosse Warranty Deed. Dated Dec. 17, 1829.
and Jennette, his wife, $3,500. Conveys Private Claim 46,
to known as the Labrosse Farm. Re-

Lucius Abbott and corded Dec. 18, 1829, in Book 12 of

Charles C. Trowbridge. Deeds, page 786.

Plat of the Subdivision of the Labrosse Farm, showing the sub-
division of the same into City Lots. Acknowledged by Lucius
Abbott and Charles C. Trowbridge.

Recorded Dec. 12, 1835, in Book 13 of
Deeds, on page 85.

oe 5 ‘) Deed of Bargain and Sale with cove-
Charles C. Trowbridge nant against grantors’ own acts. Da-
ted Dec. 17, 1835. $1,850. Conveys
Lots 1, 2, and 3, in Block 35, of the

and wife,
Lucius Abbott and wife, q

 

to Labrosse Farm and other property.
ina Hagieesin Recorded in Book 25 of Deeds, page
+ 3
Elon Farnsworth ) Warranty Deed. Dated May 30, 1836.
and wife, $2,000. Conveys Lots 1, 2, and 3, in
to | Block 35, as above described. Re-
Themss G. Mower oo in Book 29 of Deeds, on page
J :
Thomas G. Mower Mortgage. Dated Oct. 3, 1837. $1,000.
and wife, On lots 1, 2, and 3, as above des-
to cribed. Recorded Oct. 4, 1837, in
William T. Jacobs. Liber 21 of mortgages, page 376.

William C. Jacobs Power of Attorney Dated Oct. 3, 1837.
to Recorded same date in Liber 15 of
William L. Carpenter. Deeds, page 94.

The instrument represents that Jacobs lives in Bridgeport, Conn.,
and it empowers Carpenter to do all acts necessary to discharge
any and all mortgages that may be held by Jacobs on property in
Michigan.
FORMS IN COMMON USE. 349

 

William T. Jacobs,
by William L. Carpenter, | Discharge of Mortgage Executed Oct.
his Att’y in fact, + 3, 1837. Recorded in Liber 6 of

to Discharges, page 78.
Thomas C. Mower,

a

Sarah C. Mower, widow, ) Warranty Deed. Dated July 6, 1848.
Anna J. Mower, $3,000. Conveys Lots 1, 2, and 3,
Frederick F. Mower, and bl?’k 35, above described. Recorded
Thomas Mower, only July 10, 1848, in Liber 91 of Deeds,
surviving children and} _ page 3.

heirs-at-law of The records of the Probate Court show
Thomas G. Mower no administration of Thomas G.
to Mower’s estate.

Sands F. Moore. }
en Tax Deed. Dated February 6, 1840.
State or Michigan i Conveys Lots 1, 2, and 3, BI’k 35,
to .. as above described, and other lands.
Recorded Feb’y 10, 1840, in Liber

Thomas Farrell, 58 of Deeds, page 765. 2

Quit-claim Deed. Dated June 4, 1841.
Thomas Farrell ) $50. Conveys Lots 1, 2, and 3,
to - bl’k 35, as above described. Re-

corded June 4, 1841, in Liber 59 of
Sands F. Moore. J Deeds, on page 349.

 

 

I find nothing else of record in the Register’s Office for the
County of Wayne, affecting the title to the land described in the
caption.

DAVID ANSON.

Detroit, January 2, 1850.

[The above form shows a very simple title, much simpler than
most abstracts will show. It is not infrequent that a knowledge
of facts which do not appear of record is necessary to show good
title. When such is the case such facts may be shown by affidavit
attached to the abstract. For instance, in the above form there
appears to be nothing of record showing that Anna J. Mower,
Frederick F. Mower, and Thomas Mower are the only surviving
children and heirs-at-law of Thomas G. Mower, deceased. It will
be well, therefore, to have the facts of the matter set forth in an
affidavit, and attach the affidavit to the abstract.]
35° MANUAL OF THE LAW.

 

Abstract Tax Statement. It is desirable always to know
that the taxes upon property which one is about buying have
always been paid. Even though no tax deed appears of record, or
has never issued, there may still be valid tax claims which should
be known of. This knowledge is afforded by a statement from
the records of the offices charged with the collection of taxes,
usually the State, county, and city treasurers’ offices. The follow-
ing is a form of Tax Statement from the Wayne county Treas-
urer’s office:

Wayne County TREASURER’S OFFICE,
Detroit, fanuary 28, 1884.

Tax Statement of Lots 11 and 12, Bl’k 1, Jos. Bushey’s sub. of
pt. of P. C. 171 N, of Chicago Road, Springwells.

This is to Certify that the above described property has not been
sold (if sold has been redeemed) for State and County Taxes since
the year 1846, up to and including the year 1880, as appears from
the records of this office.

1881. Paid.

1882, Due $2.05, charges to be added.

Wm. D. FOX.

A similar statement respecting city taxes can be had from the
city treasurer’s office, and a statement as to State taxes is usually
furnished for a small fee by the State Treasurer or Auditor Gen-
eral, The latter statement is generally called a Zax History.

 

Acknowledgments. Many instruments must be acknowl-
edged by the person executing them in order to make them bind-
ing against such person, and in order to admit them to public
record. This is done by the person executing them coming before
the proper officer and admitting to him that they are genuine and
voluntarily made, and by the officer affixing his certificate, in proper
form, upon the instrument. All instruments affecting the title to
real estate must usually be acknowledged. In general, the func-
tion of acknowledgment is to admit the instrument to record, but
is not essential to its validity. In Md., New Mex.,N. C., and Va,
the acknowledgment is absolutely necessary and should always be
insisted upon in all of the States. Deeds of married women are
in many of the States required to be acknowledged separate and
apart from her husband, but are not, however, in Ala., Ind., Kan.,
FORMS IN COMMON USE. 35!

 

Me., Md., Mass., Mich., Vt., Wis., and in some other States. The
tendency of modern legislation is to dispense with this requirement.

In Michigan acknowledgments may be taken by notaries pub-
lic, justices of the peace, and judges of all courts of record. No
seal is required in Michigan of the acknowledging officer. If the
deed is to be recorded outside of the State the acknowledgment
had better be under seal, although it is not required in all States.
The notarial seal is every where recognized, and a scroll or scraw]
can not be substituted for it.

All acknowledgments should commence with the statement of
the locality where they are taken, called the vezue, as follows:

STaTE oF MIicuHIGAN,

County of Wayne. hes,

“ss.” means “to-wit.” In Canada the words “to-wit” should

be used instead of “ss,”

FORM OF ACKNOWLEDGMENT OF DEEDS IN USE IN MICHIGAN.

STATE oF MICHIGAN,
County of Wayne. hs

On this tenth day of March, in the year one thousand eight

hundred and eighty-five, before me, a notary public in and for said

county, personally appeared John Jones, to me known to be the

same person described in and who executed the within instrument,
who acknowledged the same to be his free act and devd.

GEORGE A. CHASE,
Notary Public, Wayne Co., Michigan,

FORM OF ACKNOWLEDGMENT WHERE WIFE IS TO BE EXAMINED
SEPARATELY.

STATE oF MicHIGAN,

County of Charlevoix. ;

On this twenty-eighth day of August, in the year one thousand
eight hundred and eighty-five, before me, the subscriber, a Justice
of the Peace in and for said county, personally appeared John
Jones and Mary Jones, his wife, to me known to be the same per-
sons described in and who executed the within instrument, who
severally acknowledged the same to be their free act and deed;
and the said Mary Jones, wife of the said John Jones, on a private
examination by me, separate and apart from her said husband,
acknowledged that she executed the same freely, and without any
fear of or compulsion from any one.

W. G. HUNT,

SFustice of the Peace, Charlevoix Co., Michigan.
352 MANUAL OF THE LAW.

 

FORM OF ACKNOWLEDGMENT BY WIFE IN USE IN PENNSYLVANIA.

CoMMONWEALTH OF PENNSYLVANIA, 88

Before me, the subscriber, one of the judges of the Court of
Common Pleas of Susquehanna County (or the required officer),
in the Commonwealth aforesaid, personally appeared the above-
named Esther C. Cummings, and acknowledged the foregoing
written instrument of consent, signed by her, to be her act and
deed, and that the same was done without any coercion of her hus-
band, Gamaliel Cummings, and desired that the same might be
recorded as such: and I certify that the same was done and exe-
cuted before me, previously to the signing and execution of the
within indenture or deed of conveyance.

In testimony whereof, I have hereunto set my hand and seal
this twentieth day of August, A. D. one thousand eight hundred
and

 

DAVID R. STOKES,
President Fudge of Court of Common Pleas of Sus. Co.

ACKNOWLEDGMENT OF POWER OF ATTORNEY.

-GaLLaTIN CounrTY, ss.

Before me, the subscriber, one of the Justices of the Peace within
and for said county, personally came the above-named Thomas
Smith, and in his own name, and in the name of his constituent,
the above-named Richard Ray (according to the power of attor-
ney), in due form of law acknowledged the above-written inden-
ture to be his own act and deed, and the act and deed of his con-
stituent, the said Richard Ray, by him, the said Thomas Smith
done and executed, by virtue of a power of attorney to him for
that purpose granted [to the end that the same might, as such, be
recorded ]. ,

In testimony whereof, etc.

BY A DEPUTY SHERIFF, OF A DEED EXECUTED BY HIM IN THE
NAME OF THE SHERIFF,

Knox County, ss.

On the thirteenth day of October, A. D, 18—, Owen Spencer
came before me, and personally acknowledged that he, as a general
deputy of Abner Wise, Esq., the Sheriff of the County of Knox,
had executed the within conveyance, in the name, and as the act
and deed of the said Sheriff: and I certify that I know the said
Owen Spencer, who made the said acknowledgment, to be the
individual described in, and who executed the said conveyance.

LEWIS MASON,
Commissioner of Deeds of Knox County,
FORMS IN COMMON USE. 353

 

ACKNOWLEDGMENT OF DEEDS BY A CORPORATIGN,

 

 

 

 

STATE OF iti
County of . =
On this day of , A. D. 188—, before me [here state

official title], personally appeared A. B., known to me to be the
president of the Company; and C. D., known to
me to be the Secretary of said company, and they severally
acknowledged the execution of the foregoing instrument of writine
to be their free act and deed and the free act and deed of the sai
Company.

(Signature and official title of acknowledging officer.)

 

 

 

GENERAL FORM OF ACKNOWLEDGMENT IN USE IN NEW ENGLAND.

ComMMONWEALTH OF MASSACHUSETTS.
Suffolk, ss. [ Date. ]

Then personally appeared the above named (A. B. and C. D.)
and (severally) acknowledged the foregoing instrument to be his
(their) free act and deed, before me,

(Signature and title.)

ACKNOWLEDGMENT OF HUSBAND AND WIFE,

CoMMONWEALTH OF MASSACHUSETTS,
County of ————_——-.

Then personally appeared the above named A. B. and C. B., his
wife, and acknowledged the foregoing instrument to be their free
act and deed, before me this day of » 18—.

(Signature and title.)

SS.

 

 

CERTIFICATE OF ACKNOWLEDGMENT BY HUSBAND AND WIFE
FOR USE IN MINNESOTA.

STATE OF MINNESOTA, hss
County of .

Be it known, that on this day of , A. D. 18—, before
me personally appeared A. B. and C. B., his wife, to me known
to be the individual persons described in and who executed the
foregoing instrument, and they acknowledged that they executed
the same freely and voluntarily for the uses and purposes therein
expressed.

Witness my hand and official seal the day and year before writ-
ten. (Signature and title.)

 

 

 
354 MANUAL OF THE LAW.

 

GENERAL FORM OF ACKNOWLEDGMENT FOR USE IN MISSOURI.

.

STATE oF Missour},
County of } a

On this day of ——, 18—, personally appeared before me,
A. B., to me known to be the person described in, and who exe-
cuted the foregoing instrument, and acknowledged that he executed
the same as his free act and deed.

In witness whereof I have hereunto set my hand and affixed my
official seal the day and year aforesaid.

[Seal.] (Signature and title.)

 

 

The above form will answer for the acknowledgment of hus-
band and wife, except that she must be described as his wife.

ACKNOWLEDGMENT BY GRANTOR FOR USE IN NEW YORK.

STaTE oF New York, a
County of .

On this day of ,» A. D. 18—, before me personally
came A. B., to me personally known, and to me known to be the
individual described in and who executed the within (or above, or
annexed) conveyance (or instrument), and acknowledged that he
executed the same. (Signature and title.)

 

 

 

Wife acknowledges the same as if she were unmarried.

FORM OF ACKNOWLEDGMENT BY HUSBAND AND WIFE FOR USE
IN OHIO.

 

STATE oF OHI,

County of . ; ae

Be it remembered, that on this day of ——, A. D. 18—,
before me, the subscriber, a (here insert title of officer) in and for
said county, personally came A. B. and C. B., his wife, and
acknowledged the signing and sealing of the foregoing instrument
to be their act and deed for the uses and purposes therein expressed.
And the said C. B., wife of the said A. B., being examined by me
separate and apart from her said husband, and the contents of said
instrument made known and explained to her by me, did declare
that she did voluntarily sign, seal, and acknowledge the same, and
that she was still satisfied therewith as her act and deed.

In witness whereof I have hereunto set my hand and affixed my
official seal on the day and year last above written.

[Seal.] (Signature and title.)

 

The above form will answer for a general form by omitting
what is said in reference to the wife.
FORMS IN COMMON USE. 355

 

RTIFICATE OF ACKNOWLEDGMENT BY HUSBAND AND WIFE
FOR USE IN INDIANA.

 

STATE oF INDIANA,
County of pe

Be it remembered, that on this day of , A.D. 18—,
before me (here insert name and title in full of the official taking
the soar aerate duly commissioned and qualified, personally
appeared A. B. and C. B., his wife, the grantors in the foregoing
deed, and severally acknowledged the execution of the same.

In witness whereof I have hereunto set my hand and affixed my
official seal the day and year aforesaid.

[Seal.] (Signature and title.)

 

 

CERTIFICATE OF ACKNOWLEDGMENT BY HUSBAND AND WIFE
FOR USE IN ILLINOIS,

STATE oF ILLINOIS, Se
County of- : :

I (name and title of officer), do hereby certify that A. B. and
C. B., his wife, personally known to me to be the same persons
whose names are subscribed to the foregoing instrument as having
executed the same, appeared before me this day in person, and
acknowledged that they signed, sealed, and delivered the said
instrument as their free and voluntary act, for the uses and purposes
therein set forth, including the release’and waiver of the right of
homestead.

Given under my hand and official seal, this
A. D. 188.

 

 

day of

 

(Signature and title.)

Notaries public and other acknowledging officers should acquaint
themselves with the provisions concerning the matter of acknowl-
edgments in their respective States. (See Chapter on Notaries,
page 278.)

Acknowledgments of mortgages, land contracts, leases, and
other instruments that may require acknowledgment, are practi-
cally the same in form as those for deeds above given.

Affidavits. An affidavit is a written statement of facts sworn
to by the person making it before an officer authorized to admin-
ister an oath. If the affidavit is for use in a suit or proceeding at

25
356 MANUAL OF THE LAW.

 

law, it should be accurately and properly entitled in the cause.
The venue or place where it is taken must be stated. The person
making it must sign it at the end, and the jurat must be signed by
the officer taking the affidavit with the addition of his official title.
The affidavit must describe the deponent with certainty, and this
should be done not by way of mere description, but as a direct
allegation in the body of the affidavit.

In the Chapter on Notaries Public, page 278, will be found
some useful hints.

The following forms are adapted.for general use:

COMMON FORM.
STATE oF

>} ss.
County 9 . '
A. B, being duly sworn (or affirmed) says (here set forth a

statement of the facts.)
(Signature of person making the affidavit.

Subscribed and sworn to (or affirmed) before me this .,.. day
Of ...0, 18.06

 

 

(Signature and title of officer.)

LEGAL FORMS,

 

A. B.
0 Tue Circuit Court For THE
Cc. D. County oF .
STATE oF MICHIGAN, es
County of : .

 

A. B. being duly sworn (or affirmed) says (here set forth the
allegations intended to be sworn to.)
A—— B——.
Sworn (or affirmed) before me ;
this — day of -—, A. D. 18—.
JAmEs Gorpon BENNETT,
Notary Public, Ingham County, Michigan.

—_—

AFFIDAVIT OF SERVICE OF PAPERS,

[ Title of case.]
STATE OF
County of

A. B. being duly sworn (or affirmed), deposes and saya: that he

is above the age of 18 years, and that on the .... day of ....,

 

* | 6

 
FORMS IN COMMON USE. 857

 

18.., at ...., he served the within paper, a copy of which is hereto
annexed, on C. D., known to him to be the person described
therein, by delivering the same (or a copy thereof) to him per-
sonally, and leaving the same with him.
(Signature of person serving paper.)
Subscribed and sworn to (or affirmed) before me this .... day
of ...., 18...
(Signature and title of officer.)

—_—_—

AFFIDAVIT TO A PETITION.

[ Title of case. |

STATE OF ;
County of- . i =

A. B. being duly sworn (or affirmed), deposes and. says: that
he has read the foregoing petition subscribed by him, and that the
same is true of his own knowledge, save as to the matters therein
stated to be alleged on information and belief, and as to those mat-
ters he believes it to be true.

(Signature of person making the affidavit.)

Subscribed and sworn to (or affirmed) before me this .... day

OF siien'g TO8sine

 

 

(Signature and title of officer.)

Special forms of affidavits will be found attached to the various
forms for which they are intended.

_—

AFFIDAVIT OF REGULARITY.

 

in Chancery,

Tur Circuit CourT FOR THE COUNTY OF

 

?
Complainant.
vs.

 

” Defendant.

STATE oF MICHIGAN, bss
County of i
ee ee ... Solicitor.. for the Complainant
m the above entitled cause, being duly sworn, doth depose and say,
that the said Bill of complaint was filed with the Register of this
Court, on the .... day of ...., 188.., by the above named Com-
plainant against the above named Defendant, to dissolve the mar-

 
358 MANUAL OF THE LAW.

 

weer cere cree teeter ee reeeeeaereeereeeereeseresereanseoeneeore

of the said Defendant; that the said Bill has been taken as con-
fessed by the said Defendant; panini Se gees seeees sistaceup ie eens
and that all the "proceedings to take said Bill as confessed have
been regular and according to the rules and practice of this Court,
Sworn to and subscribed before me, t
this .... day of ...., 188..

 

 

AFFIDAVIT FOR GOODS SOLD AND DELIVERED.

County of Harrison.

Walter Forward, of Corydon, in said County, being duly sworn,
deposes and says, that Amasa Peabody, of Hartford, County of
Hartford, and State of Connecticut, is justly and truly indebted
unto him, this deponent, in the sum of .... dollars, for goods sold
and delivered by him to the said Amasa Peabody. That he has
given credit to the said Amasa Peabody for all payments and
set-offs to which he is justly entitled, and that the balance claimed
according to the foregoing account is justly due; and that said
account is correctly stated.

Sworn, etc.

STATE oF INDIANA, bss

Agreements or Contracts. In the first Chapter of this book
the general principles governing contracts and the requisites essen-
tial to their validity are set forth. It will be well to give them
careful attention, as they are of very wide application in the busi-
ness world, nearly every legal transaction being reducible to a

_contract.
The following forms are of general application:

FORM OF AGREEMENT.

THIS AGREEMENT, made the eleventh day of October, A. D.
18.., by and between H...... Rewecs OF cece. «+e, County
of ....., and State of ....., of the first part, and G.. eer
of ....., County of ....., and State of ......, of the second
part, wétmesseth:—That the said R..... »in consideration of the
covenants on the part of the party of the second part hereinafter
contained, doth covenant and agree to and with the said C......
that [here insert the agreement on the part of R......]; and the
FORMS IN COMMON USE. 359

 

said C....., for and in consideration of the covenants on the part
of the party of the first part, doth covenant and agree to and with
the said R......, that [here insert the agreement on the part of
Cxscsas

In ls whereof, we have hereunto interchangeably set our
hands and seals, day and year first written.

Signed, sealed and delivered H R , [SEAL.

in presence of t G—C been

 

 

 

 

 

 

GENERAL FORM OF CONTRACT, WITH PROVISION FOR LIQUIDA-
TED DAMAGES IN CASE OF BREACH.

This agreement, made the .... day of ...., one thousand eight
hundred and ...., by and between A. B., of the town of ......,
county of ......., State of ......., of the first part, and C. D.,
of ......., county of ..... .) State of ......, of the second part,
witnesseth: That the said party of the second part covenants and
agrees to and with the party of the first part, to [here insert the
subject-matter of the agreement]. And the said party of the first
part covenants and agrees to pay unto the said party of the second
part, for the same [here insert the consideration and the terms of
payment].

And for the true and faithful performance of all and every of
the covenants and agreements above mentioned, the parties to these
presents bind themselves, each unto the other, in the penal sum of
.... dollars, as liquidated damages, to be paid by the failing party.

In witness whereof, the parties to these presents have hereunto
set their hands and seals, the day and year first above written,

[Signatures. ] [SEALs. ]
Signed, sealed, and delivered }
in the presence of

[Signatures of witnesses. ]

MEMORANDUM OF AGREEMENT TO SELL LAND.

This memorandum made this 5th day of October, 1883, witness-
eth: that John Smith agrees to sell the farm now occupied by him
in Pleasant Valley to Thomas Brown for $5,000 (or if it is at a
certain price per acre, so state it), and to give a warranty deed
therefor upon payment of the purchase price within ten days. And
the said Thomas Brown agrees to buy tlie same accordingly.

JouN SMITH,
Tuomas Brown.
360 MANUAL OF THE LAW.

 

It is sometimes better to put the contract itself in writing instead
of making a written note or memorandum of it. When this is
done an instrument somewhat more formal and particular than the
above should be made use of, as follows:

AGREEMENT TO SELL LAND.

THis AGREEMENT made this .... day of October, A. D. 1883,
between John Smith, of the township of Pleasant Valley, county
of Heartsease, in the State of Utopia, party of the first part, and
Thomas Brown, of the same place, party of the second part, wit-
nesseth: That the said party of the first part, in consideration of the
agreements as herebelow expressed on the part of the party of the
second part to be performed, does hereby agree to sell unto the said
party of the second part all that certain piece or parcel of land
known and described as follows, to-wit: (insert description) for the
sum of five thousand dollars, to be paid in manner following, viz.:
one thousand dollars on the execution and delivery of this agreement,
and the balance within three years from the date hereof, in sums
of not less than one thousand dollars each, with lawful interest on
the amount remaining unpaid. And the said party of the second
part, in consideration of the premises, agrees to buy the said land
aud pay for it the said sum of five thousand dollars in the manner
as above set forth. And it is mutually agreed that the said party
of the second part shall have and take immediate possession of the
said land, and shall, from this time on, pay all taxes and assess-
ments that may be levied upon it. And the said party of the first
part further agrees that upon receiving the said sum of five thous-
and dollars, at the time and in the manner above mentioned, he
will forthwith execute and deliver to the said party of the second
part, at his own proper cost and expense, a good and sufficient
deed, for the conveying and assuring to him the fee simple of said
premises free from all incumbrances; which deed shall contain a
general warranty and the usual full covenants.

In witness whereof the said parties to these presents do hereunto
set their hands and seals the day and year first above written.

os

Joun Smrru, {us}

Signed, sealed, and delivered Tuomas Brown, { ne |
in presence of ea

WILLIAM GRAY,
RicHarpD JONES.

A contract to sell or lease lands may be made by one’s attorney,
but where it is so made it must distinctly and clearly appear to be
FORMS IN COMMON USE. 361

 

the act and deed of the principal; it must be executed in his name
and purport to be sealed with his seal.(*)

Land contracts are of great variety; they are sometimes made
payable in monthly installments running over a long period of
time; sometimes they provide that the person selling shall build a
house on the premises, and that the person buying shall take pos-
session and commence making payments as soon as the house is
done; often they provide that if the purchaser fails to keep up his
payments such failure shall terminate his rights in the premises,
that he shall yield up possession and forfeit all that he has paid.
Such a provision, however, cannot generally be enforced. While
it is perfectly proper and legal for parties in contracting to stipu-
late what damages either shall pay the other on failure to perform
his part of the contract, and while such stipulated damages are
generally enforceable, still the Courts will regard a forfeiture like
the above as being in the nature of a penalty, and will only permit
a recovery of such damages as are actually suffered. (7) Where
the contract is of such a nature that the damages resulting from a
breech of it are uncertain, or where they are better known or can
be better estimated by the parties to the contract than by any one
else, it is always proper and desirable that the parties themselves
should ascertain by fair calculation the amount of such damages
and stipulate that such amount shall be paid in case of failure to
perform the contract.(*)

The following form will be useful to those who desire to sell
land upon monthly, quarterly, semi-annual, or yearly installments:

LAND CONTRACT—INSTALLMENT PLAN.

Tuis Contract, made the .... day of ...., A. D. 1884,
between John Smith, of Smithville, Jones County, in the State of
New York, party of the first part, and Thomas Brown, of Thom-
astown, Brown County, in said State, party of the second part,
Witnesseth as follows, to wit:

1. The said first party, for and in consideration of the sum of
Four Thousand Dollars, to be paid with interest in the manner
below set forth, and for other considerations herebelow indicated,
agrees to sell and forthwith after the performance of this contract
to convey to said second party by full warranty deed the following
described premises, to wit: All that certain piece of land known

 

*) 6 Mass., 488; 15 Mass., 488.

: 4 Hill, 351.
3) 7 Conn., 291; 13 Wend., 507; 22 Wend., 201.
362 MANUAL OF THE LAW.

 

as lot ten, in block three, of Smith’s Addition to the Village of
Smithville, in said State and County, according to the recorded
plat thereof in the office of the Register of Deeds of said County,
in Liber three, of plats, on page seventy. Said sum of Four
Thousand Dollars is to be paid as follows: One thousand dollars
at the time of the ensealing and delivery of these presents, and the
remainder in one hundred monthly payments of thirty dollars each,
to be paid on the first day of each and every month, commencing
on the first day of January, A. D. 1884, with interest on the
amounts remaining unpaid computed every six months, to be paid
in addition to the said monthly payment. Said second party is
also to pay all taxes and assessments that may be levied on the said
premises after the first day of January, A. D. 1884.

3. Said second party agrees to buy the said premises upon the
terms above set forth, to pay therefor the said sum of Four
Thousand Dollars, with interest at the times and in the manner
hereinbefore specified, and to pay the said taxes and assessments as
is hereinabove provided.

4. The parties hereto mutually agree that said second party
shall have immediate possession of said premises; that no building
shall be erected on said premises nearer than ¢wenty feet from
Peters street; AND FURTHER, That if the said second party shall
make default in any of the mozthly payments as herein agreed by
him to be made, and shall neglect or refuse so to do for a period
of thirty days he shall at the option of said first party be deemed
to have refused to complete this contract, and the same may be
then declared terminated by said first party, and said second party
shall thereupon become a tenant at will of said premises, and be
liable to be proceeded against without notice to quit. AND IT Is
FURTHER AGREED, That in case this contract is so terminated for
default on the part of said second party, such party shall pay said
first party ¢hérty dollars per month for each and every month
that he has been in possession of said premises, both before and
after this contract is so terminated, as a reasonable rental therefor;
and in addition thereto said second party agrees to pay to said first
party Five Hundred Dollars as stipulated damages for his breach
of this contract. Said stipulated damages are not to be regarded
as a penalty or forfeiture, but as the amount necessary to reimburse
said first party for the loss and injury resulting to him from the
failure of said second party to perform his part of this contract.

It is also agreed that in case said second party shall fail in any
instance to pay taxes or assessments when due said first party may
do so, and the amounts so paid shall be added to the consideration
above named, and shall become payable with the next payment on
this contract, and shall draw interest at the rate of ten per cent per
annum until paid.

This contract may be assigned by consent of the said first party
endorsed hereon.
FORMS IN COMMON USE. 363

‘

The obligations of this contract are hereby made binding upon
the legal representatives of the parties hereto.

ic Witness whereof the said parties hereto set their hands and
seals.

me

ee]

Another method of making sure of the performance of an agree-
ment to sell a farm or a parcel of land is for the purchaser to take
from the seller a dond for a deed, This is an obligation for the
payment of a certain sum of money to become binding on the obli-
gor, as he is termed, unless he shall, upon a certain date, duly deed
to the obligee the premises in question upon the terms agreed to.

BOND FOR CONVEYANCE OF LAND.

KNow ALL MEN BY THESE PRESENTS, That I, John Smith, of
Smithville, Jones County, in the State of New York, am held and
firmly bound unto Thomas Brown, of Thomastown, Brown
County, in said State, in the sum of four thousand dollars, to be
paid to the said Thomas Brown, his heirs, administrators, or
assigns, to the payment whereof I bind myself, my heirs, executors
and administrators firmly by these presents.

Sealed with my seal and dated this second day of January, A.
D. 1884.

Tue CONDITION OF THIS OBLIGATION 1S, That if the said
John Smith, upon payment to him by the said Thomas Brown of
the sum of three thousand dollars in three annual payments of one
thousand dollars each, to be made on the second day of January
in each year with interest on the amount remaining unpaid, at
seven per cent per annum, shall convey to the said Thomas
Brown and his heirs forever a certain tract or parcel of land situ-
ated in the county of Jones in the State of New York, described
as follows, to wit: (Here describe the land) and in the mean-
time shall permit said Thomas Brown to occupy and improve said
premises for his own use and benefit, then this obligation shall be
void, otherwise to remain in full force and effect.

In Testimony whereof, I have hereunto set my hand and seal
the day and year first above written.

_

Joun SMITH, {u sf
364 MANUAL OF THE Law.

If a bond for a deed is given the purchaser he can recover from
the seller such damages as he has been put to if the deed is not
given, but he cannot compel the seller to give a deed if the seller
does not choose to. If, however, a contract of sale is duly
executed in writing and the seller refuses or neglects to give the
deed as agreed upon, the purchaser can obtain from a court of
chancery a decree of specific performance, as it is called, which
will compel him to do so,

SHORT AGREEMENT FOR BUILDING A HOUSE.

This agreement for building, made the eighteenth day of March,
one thousand eight hundred and eighty-five, by and between A.
B. of the city of Detroit, in the couaty of Wayne and State of
Michigan, of the first part, and C. D. of the township of Dearborn
in the county of Wayne and State of Michigan of the second
part, witnesseth: ‘That the said party of the second part cove-
nants and agrees to and with the said party of the first part to
make, erect, build, and finish in a good, substantial, and work-
manlike manner, on the vacant lot of the said party of the first
part situate on Fourth avenue in said city of Detroit, a dwelling
house, agreeable to the draft, plan, and explanation hereto annexed,
of good substantial materials, [if the materials are to be furnished
by the party of the first part, say: of such materials as the said
party of the first part shall find or provide for the same], by the
firstday of August next.

And the said party of the first part covenants and agrees to pay
unto the second part for the same the sum of five thousand dollars,
lawful money of the United States, as follows: two thousand dol-
lars in thirty days from the date hereof, and the remaining sum of
three thousand dollars when the said dwelling house shall be com-
pletely finished. [If necessary add: And also that he will fur-
nish and procure the necessary materials for the said work in such
reasonable quantities and at such reasonable time or times as the
said party of the second part shall or may require. |

And for the true and faithful performance of all and every
of the covenants and agreements above mentioned the parties to
these presents bind themselves, each unto the other, in the penal
sum of ten thousand dollars, as fixed and settled damages to be
paid by the failing party.

In Witness, etc., (as in preceding forma, )
FORMS IN COMMON USE. 365

 

ANOTHER AGREEMENT FOR BUILDING A HOUSE,

Articles of agreement made and concluded the .... day of ....;
one thousand eight hundred and ...., between A. B. of ....
County of .... and State of ...., of the first part, and C. D. of
the same place, of the second part, as follows, viz.:

The said A. B., for the considerations hereinafter mentioned,
doth, for himself, his heirs, executors, and administrators, covenant
with the said C. D., his executors, administrators, and assigns, that
he, the said A. B., shall and will, within the space of .... next
after the date hereof, in a good and workmanlike manner, and
according to the best of his knowledge and skill, well and substan-
tially build, set up, and finish one house or messuage, on [describ-
ing the location] in such place as the said C. D. shall direct at ....
aforesaid, of the dimensions following, viz.: [describe the house in
full; if a plan be used, add afterwards, according to the draft or
plan hereto annexed], with such stone or brick, lumber and other
materials, as the said C. D., or his assigns, shall provide and fur-
nish for the same.

In consideration whereof, the said C. D, doth, for himself, his
executors and administrators, covenant and promise with and to the
said A. B., his executors, administrators, and assigns, well and truly
to pay, or cause to be paid, unto the said A. B., his executors,
administrators, and assigns, the sum of five thousand dollars, in
manner following, to wit: five hundred dollars, part thereof at the
beginning of the said work; one thousand dollars more thereof on
the first day of July next; two thousand dollars more thereof on
the fifteenth day of August next, and fifteen hundred dollars in
full for the said work at the time the same shall be fully com-
pleted, [ varying these terms according to the agreement].

And also, that he, the said C. D., his executors, administrators,
and assigns, shall and will at his and their own proper expense,
find and provide all the stone, brick, tile, timber, and other material
necessary for the making and building of the said house.

And for the true and faithful performance of each and all of the
covenants and agreements aforesaid, each of the said parties bindeth
himself, his heirs, executors, and administrators unto the other, his
executors, administrators, and assigns, in the penal sum of ....
dollars [or, “in the sum of .... dollars, to be taken as liquidated
and stipulated damages,” ] firmly by these presents.

In witness whereof, we have hereunto set our hands and seals
the day and year first above written,

A.B. [sEar.]
Sealed and delivered
in presence of {
DanizeL Dorman,
Wiutiam LYELL.

C.D. [szav.]
366 MANUAL OF THE LAW.

 

AGREEMENT FOR BRICKLAYER’S AND PLASTERER’S WORK,

MEMORANDUM OF AN AGREEMENT made this first day of May,
A. D, 18—, between A. B.of the .... of ...., County of ... and
State of ...., of the one part, C. D. of thesame ...., of the other
part, as follows: The said A. B. for the consideration hereinafter
mentioned, doth covenant, promise and agree with, and to the said
Thomas Ewing; that he, the said A. B., shall and will do and per-
form all the work belonging to the bricklayer and plasterer, in and
about the erection and building of a certain house [describing the
location] in a sufficient and workmanlike manner, at his. own
charge and expense, with the materials to be provided for that
purpose by the said C. D.; that he will build the same with the
thickness of walls, height or number of stories, and the number
and kind of lights, chimneys, and conveniences, together with the
ornamental work in and about the said building as the said C. D.
~shall direct him, paying and discharging all the said workmen by
him employed in and about the same; and, that he will completely
finish all the work herein by him agreed and covenanted to be by
him done and performed on or before the .... day of .... next.

And the said C. D., for and in consideration of the true and faith-
ful performance of the work to be done as aforesaid, doth agree
and covenant to and with the said A. B., that he shall and will
well and truly pay, or cause to be paid, unto the said A. B., for all
such work, ornamental work excepted, to be by him done and
performed in and about the building aforesaid, at and: after the
rate of .... for every yard which said work shall measure, reck-
oning three feet square for every yard; and for all the said orna-
mental work to be performed as aforesaid, the sum of .... dollars
in full: and the said C. D. will pay all the said money as follows,
viz.: [insert the terms. ] And it is further covenanted and agreed,
by and between the parties hereunto, that each and all of the fore-
going covenants and agreements are to apply to, and bind, the
heirs, executors, and administrators of the respective parties hereto.

In witness whereof, etc., [as in foregoing. ]

Sealed and delivered A.B, [sEAL.]
in presence of Cc. D. [szaL.]

Rozpert Ray,
KENNETH KITE,

AGREEMENT TO BUY A MERCHANT’S STOCK, ETC,

THIS AGREEMENT, made this .... day of ...., A. D. 18—, by
and between A. B., of ...., County of-...., and State of ....,
and C. D. of the said ....: Wéitnesseth, that in consideration of

e
FORMS IN COMMON USE. : 367

 

the covenants on the part of the said C. D. hereinafter contained,
the said A. B. doth hereby covenant and agree to and with the
said C. D., that he will purchase of the said C. D. all his stock of
goods, wares, and merchandise, now being and contained in his,
the said C. D.’s store, in said ...., together with all the fixtures
thereto belonging, an account of such goods, wares, and merchan-
dise being taken by the parties hereto in the presence of each
other; and the said A. B. agrees to pay for the same at the invoice
price thereof; but, if any of the said goods be damaged, such dam-
aged goods, together with the fixtures aforesaid, are to be appraised
and valued by three disinterested persons, each party hereto select-
ing one, and the two so selected to select a third, and the said A.
B. agrees to pay for the same the price which the three appraisers
aforesaid shall set thereon in their valuation and appraisal of the
same; and, that within ten days after the value of said goods,
wares, merchandise, and fixtures can be ascertained as aforesaid,
the said A. B. is to pay the valuation thereof to the said C. D.

And the said C. D., in consideration of the foregoing covenants
by the said A. B. to and with him the said C. D. made, covenants
and agrees to and with the said A. B., that he, the said C. D., will
sell to him, the said A. B., the said goods, wares, and merchan-
dise at the invoice price, and the fixtures and such goods as may be
damaged, at such price as the appraisers aforesaid may fix and
determine; and to make, execute, and deliver unto the said A. B.
a.good and sufficient bill of sale and conveyance thereof, and to
yield and deliver to him, the said A, B., quiet and peaceable pos-
session thereof upon payment to him, the said C. D., by the said
A. B., within the time before specified, of the invoiced and
appraised value of the goods, wares, merchandise, and fixtures
aforesaid. In witness whereof, etc.
Sealed and delivered A.B. [szat.]

in presence of ' C.D. [s#at.]

Levi MErRRiAM,
Enos DRAKE.

[If desired, the form for appraising damaged goods can be made
applicable to the entire stock. ]

AGREEMENT FOR THE SALE OF GRAIN.

Ir 1s AGREED this fourth day of June, A. D. 18—, by and
between A. B.,of ...., County of .... and State of ...., and C.
D., of ...., County of .... and State of ...., as follows: The
said C. D., in consideration of five hundred bushels of wheat, to
him this day sold by the said A. B., and by the said A. B. agreed
368 MANUAL OF THE LAW.

 

to be delivered to him, the said C. D., on or before the .... day
of ...., free of all charges, agrees to pay to the said A. B. within
one month after such delivery, the sum of three hundred and
seventy-five dollars. And the said A. B., in consideration of the
aforesaid agreement of the said C. D., doth hereby agree to for-
ward and deliver to the said C. D., at .... aforesaid, free of all
charge, the said five hundred bushels of wheat, so to him sold as
aforesaid, hereby warranting the same to be good, clean and mer-
chantable grain.
Witness our hands and seals, day and year first written.

Sealed and delivered A. B. [szau.]
in presence of
EcxBert RICHTER, C.D. [seae,]
Joun Davy.

AGREEMENT FOR LEASE OF HOUSE.

Ir 1s AGREED this .... day of ...., A. D. 18.., between A.
B., of ...., County of .... and State of ...., of the one part,
and C. D., of .... aforesaid, of the other part, as follows: The
said A. B. doth agree to let unto the said C. D., all that certain lot
of ground with the house thereon, being and situate [here describe
the premises] for one year from the first of February next, and
for such longer time after the expiration of the said year as both
the said parties shall agree, and until the end of three months after
notice shall be given by either of the said parties, to the other of
them, for leasing the said premises, at and for the yearly rent of
four hundred dollars, payable quarterly on the first days of May,
August, November, and February, in equal portions; which said
yearly rent, payable quarterly as aforesaid, the said C. D., for him-
self, his executors, and administrators, doth hereby covenant and
agree to pay to the said A. B., his executors, administrators, and
assigns, accordingly, for so long a time as he shall hold and enjoy
the said premises as aforesaid, and until the end of the said three
months next after notice shall have been given by either of the
above parties to the other, for leasing the said premises as afore-
said.

Witness our hands and seals, day and year first above written.

Signed, sealed and delivered A.B. [sEAt.]
in presence of us
JosEPH Crosz, C.D. [szat.]
BarcLay THOMAS,

CONTRACT WITH A CLERK OR WORKMAN FOR SERVICES.

MEMORANDUM OF AGREEMENT made this .... day of
FORMS IN COMMON USE. 369

 

18.., between A. B., of .... County of ...., State of .... of the
first part, and C. D., of ...., County of ...., State of ...., of
the second part, witnesseth: That the said A. B. agrees faith-
fully and diligently to serve the said C. D., as pets position to
be held] at .... for the period of .... from andafter .... day of
+++) 13.. In consideration of which service so to be performed
by the said A. B., the said C. D. agrees to pay to the said A. B.
the sum of .... dollars, to be paid as follows: .... dollars on
the .... day of ..... 18.., and dollars on the .... day of ....
each and every month following during the said term, and the bal-
ance, if any, at the expiration of the said term.

And it is understood and agreed, that the death of either party
during the said term shall terminate this contract.

In witness whereof we have hereunto set our hands and seals this
«.. day of ...., 18.. A. B.

Signed, sealed and delivered in presence of Cc. D.

[Signatures of witnesses. ]

CONTRACT FOR SALE OF GOODS.

THIS AGREEMENT, made this .... day of ...., 18—, between
A. B., of .... and C. D., of ...., witnesseth: That it is hereby
agreed by the said parties, that all the stock of goods, wares, and
merchandise, which are the property of A. B., and contained [state
where goods, etc., are] which are mentioned in the schedule hereunto
annexed, together with the furniture and fixtures thereunto apper-
taining, shall, at the joint and equal charge of the said parties, be
appraised by M. N. and O. P., on or before the .... day of ....
next, when the said M. N. and O. P. shall, in writing by them
signed, give in their appraisement to the said parties; and in case
the said appraisers shall differ in such valuation, then a third indif-
ferent person chosen by them as an umpire shall determine the
same, whose valuation in writing by him signed shall be given in
to the said parties, within three days after his election, And the
said A. B, covenants with the said C. D. that, immediately after
such valuation being made, he will make and deliver an absolute
bill of sale, of all the said goods and stock in trade, and will give
possession thereof unto the said C. D., at the price the same shall
be appraised at as aforesaid. And the said C. D. hereby covenants
with the said A. B., that he will accept the said property at such
price, and, on the delivery thereof with the bill of sale, will pay to
the said A. B. the sum of money at which the same shall be
appraised as aforesaid.

In witness, etc., a3 in previous forms. A. B. tera

C.D. [sEaL.

Signed, sealed, and delivered in presence of

[Signatures of witnesses].
37¢ MANUAL OF THE LAW.

 

The following is a schedule of the goods and chattels referred
to on the preceeding page:

1 dozen cane seat chairs......... iniessesosces QF $

2 SOLAS @P...cccvcccvccscccaccrececeseccecs $
Etc., etc. etc. A. B.
C. D.

AGREEMENT TO CULTIVATE LAND ON SHARES.

THIS AGREEMENT made the .... day of ...., one thousand eight
hundred and eighty-five, between A. B., of the township of Dear-
born, in the county of Wayne, and State of Michigan, and C. D.,
also of the same township, county and State, witnesseth: That the
said A. B. agrees that he will break up, properly fit, and sow with
wheat, all that field belonging to the said C. D. lying immediately
north of the dwelling house and garden of the said C. D. in the
Township aforesaid, and containing twenty acres or thereabouts,
on or before the twenty-fifth day of September next; that when
the said crop, to be sown as aforesaid, shall be in fit condition, he
will cut, harvest, and safely house it in the barn or barns of the
said C. D., and that he will properly thresh and clean the same,
and deliver one-half of the wheat, being the produce thereof, to
the said C. D. at the granary near his dwelling-house as aforesaid,
on or before the .... day of ...., in the year 18...

It is understood between the parties that one-half of the seed
wheat is to be found by the said C. D.; that the said A. B. is to
perform all the work and labor necessary in the premises or cause
it to be done; and that the straw is to be equally divided between
the parties within ten days after the crop of wheat shall have been
threshed as aforesaid.

In witness, etc. [See preceding forms. ]

_ Apprentices. In the Chapter on Hiring Help, will be found
a general statement of the law governing the matter of appren-
ticeship. (See page 190.) The following is a general form of

APPRENTICE’S INDENTURE:

THIS AGREEMENT WITNESSETH: That A. B., of ......00,
seeeseee, does by these presents bind out his (or, if the father is
not living, her) son C, B., and that the said C. B. does hereby bind
himself out as an apprentice to E. F. of ........ i siete: secon, 40
learn the art (business, or trade) of (state what.)
FORMS IN COMMON USE. 37!

 

That the said C. B. is at the date hereof aged .... years.

That said C. B. shall dwell with and serve said E. F. as such
apprentice from the date hereof till .... day of .......

That during said term said apprentice shall faithfully serve his
said master, keep his secrets, and at all times readily obey his law-
ful commands. He shall do no damage to his master, nor willfully
suffer any to be done by others. He shall at all times diligently
promote his master’s interests, shall not absent himself from the,
service of his master, but in all things shall demean and conduct
himself as a good and faithful apprentice ought.

That the said E. F., in consideration thereof, does hereby cove-
nant, promise, and agree to instruct and teach said apprentice, or
cause him to be instructed and taught in all the ways of the art
(business, or trade, etc.,) aforesaid to the best of his ability and
means; to instruct and teach said apprentice, or cause him to be
instructed and taught to read, write, and cipher, to find and pro-
vide said apprentice good and sufficient food, clothing, lodging, and
other necessaries during said term, and at the expiration thereof to
give him dollars (clothes, etc., as the parties may agree).

In witness whereof the parties hereto have here set their hands
and seals this .... day of ...., A. D...... ;

 

CONSENT OF FATHER OR MOTHER.

I do hereby consent to, and approve of, the binding of my son,
C. B., as in the above (or within) indenture mentioned. Dated

the .... day of ...., 188..
Aves Be soee

JUSTICE’S CERTIFICATE WHERE MOTHER GIVES CONSENT.

I, G. H., justice of the peace of the town of ...., in the County
of .... and State of ...., do certify that A. B., the father of the
infant named in the within indenture, is dead (or is not legally
competent to give his consent thereto, or has abandoned or neg-
lected to provide for his family). Dated the .... day of ....;

188..
26 Gio He aces
Fustice of the Peace.
372 MANUAL OF THE LAW.

 

CONSENT OF GUARDIAN.

I, J. K., the guardian duly appointed of C. B., in the within
indenture named, do certify that the father and mother of the said
C. B. are dead, (or that the father of the said C. B. is dead, and
that his mother refuses her consent to the said indenture of
apprenticeship, or is not in legal capacity to give her consent;) and
I do hereby consent, as his guardian, that he, the said C. B., may

‘bind himself in and by said indenture.

Dated the .... day of ...., 188..

F. K., Guardian of the said C. B.

ASSIGNMENT OF FOREGOING INDENTURE.

Know all men by these presents, that I, the within named E.
F., for and in consideration of the sum of .... dollars, have
assigned and set over, and by these presents do assign and set over,
the within indenture together with the apprentice therein named,
unto. C. D., of ...., his executors, administrators, and assigns, for
the residue of the term within mentioned; he and they performing
all and singular the covenants therein contained on my part to be
kept and performed, and indemnifying me from the same.

In witness whereof I have hereunto set my hand and seal, the
oe.» day of ...., 188..

E.F. [1 s.]
In the presence of
G. H.
L. M.

An indenture of apprenticeship is not assignable as a macter of
right, though it would be valid against the one who made it as a
promise of the services of the apprentice. (19 Johnson, 113.)

 

Arbitration. The law governing the matter of arbitration
and award is set forth in the chapter on that subject, commencing
on page 253.

The following general forms can be modified to suit the special
requirements of the cases that may arise:

SUBMISSION TO ARBITRATORS.

Whereas, a controversy is now existing and pending, between
A. B. of, etc., and C. D., etc., in relation [here state the substance
FORMS IN COMMON USB. 373

 

of the controversy]. Now, therefore, we, the undesigned, A. B.
and C. D. aforesaid, do hereby submit the said controversy te the
arbitrationment of E. F., L. M., and S. T., of, etc., or any two of
them, and we do mutually covenant and agree, to and with each
other, that the award to be made by the said arbitrators, or any
two of them, shall, in all things by us and each of us, be well and
faithfully kept and observed: provided, however, that the said
award be made in writing under the hands of the said E. F., L.
M. and S. T., or any two of them, and ready to be delivered to
the said parties in difference, .or such of them as shall desire the
same, on the .... day of .... next.

Witness our hands and seals this .... day of ...., A. D. 188..

In the presence of A.

B. [sEAu.
C.D. [sea

SHORT FORM OF GENERAL SUBMISSION.

We, the undersigned, hereby mutually agree to submit all our
matters in difference, of every name or nature, to the award and
determination of E. F., L. M., and S. T., for them to hear and
determine the same, and make their award in writing, on or before
the .... day of .... next.

Witness our hands and seals this .... day of ...., A. D. 1885.

In the presence of A. B.

C.D.

AGREEMENT FOR JUDGMENT, TO BE INSERTED IN THE SUBMIS-
SION, IF NECESSARY.

And it is hereby further agreed between the said parties, that
judgment in the court of Laas state what court] may be rendered
upon the award to be made pursuant to this submission, to the end
that all matters in controversy between them shall be finally con-
cluded.

ARBITRATION BOND.

Know ALL Men By THESE Presents, That I, A. B., of
...-, County of .... and State of ...., am held and firmly
bound to C. D., of etc. in the sum of .... dollars, good and law-
ful money of the United States, to be paid to the said C. D., his
executors, administrators, or assigns, for which payment well and
truly to be made, I bind myself, my heirs, executors, and adminis-
trators, firmly by these presents.

Sealed with my seal, and dated the .... day of ...., A.D. 18...
374 ~ MANUAL OF THE LAW.

 

The condition of this obligation is such, that if the above
bounden A, B., his heirs, executors, and administrators, shall and
do, in all things, well and truly abide by, perform, and fulfill in
all things the award, decision, and, final determination of E, F., L.
M., and S. T., appointed and named on the part and behalf of the
said A. B., as well as the said C. D., to arbitrate, award, order,
and determine of and concerning all, and all manner of action and
actions, cause and causes of actions, suits, controversies, claims, and
demands whatsoever, now pending, existing, or held by and
between said parties, so that the said award be made in writing
under the hands of the said E. F., L. M., and 8S. T., or any two of
them and ready to be delivered to the parties in difference, or to
such of them as shall desire the same, on or before the .... day
of ...., A. D. 18.., then this obligation to be void, otherwise to
remain in full force and virtue.

Signed, sealed, and delivered A.B. [sEAL.]
in presence of
RuvoupH SHAFFER, cD, [Seat]
AvuGuSTUS POPE.

(Each party to the arbitration should give to the other a bond
like the above. )

NOTICE TO ARBITRATORS OF THEIR APPOINTMENT.

To BF, L. M., and S. T., Esquires:

You are hereby notified that you have been nominated and
chosen arbitrators, as well on the part and behalf of the under-
signed, A. B., of etc., and C. D., of etc., also undersigned to arbi-
trate, award, etc. [here insert as in the submission as well as Bond,
specifying the time within which the award must be made], and
you are requested to meet the said parties at the house of O. R., in
the ...... of ......, county of ......, and State of Michigan,
on the .... day of ...., A. D. 18.., at .. o’clock in the ...noon
of that day, for the purpose of fixing upon a time and place where
and when the proofs and allegations of the said parties shall be
heard.

Dated the .... day of ...., A. D. 18... A. B.

Yours, etc., Cc. D.

ARBITRATOR’S OATH.

We, the undersigned, arbitrators, appointed by and between A.
B., and Cc, D., do swear respectively, that we will faithfully hear
and examine the matters in controversy between the parties above
FORMS IN COMMON USE. 375

 

named, and will make a just award therein, according to the best
of our understanding.
Sworn to this .... day of ...., E, F.
A. D. 188.. Before me, ' L. M.
S. T.

NOTICE OF HEARING FOR OPPOSITE PARTY, IF NECESSARY.

In the matter of an arbitration, -

of and concerning matters

in difference between A. B.

of the one part and C, D. of

the other part.

Sir: You will please take notice that a hearing in the matter
above specified, will be had before the arbitrators, at the house of
O. R. in the .... of ...., etc., on the .... day of ...., etc.

Yours, etc., A. B.

OATH OF WITNESS BEFORE ARBITRATORS.

You do solemnly swear (or affirm) that the evidence you shall
give to the arbitrators here present, on a controversy between A.
B. and C. D., shall be the whole truth and nothing but the truth:
So help you God (or and so you do affirm).

REVOCATION.

To E. FL. M., and S. T., squires:

Take notice, that I do hereby revoke your powers as arbitrators
under the submission made to you by C. D. and myself, in writing
[or as the case may be] on the .... day of ...., 188.. ee

——

NOTICE OF REVOCATION.
To €.D.:

You are hereby notified that I have this day revoked the pow-
ers of E. F., L. M., and S. T., arbitrators chosen to settle the mat-
ters in controversy between us; and that the following is a copy
of such revocation.

Dated the .... day of ...., 188..

. Yours, etc., A. B.

# If the submission be under seal, the instrument revoking it should likewise be.

 
376 FORMS IN COMMON USE.

 

AWARD BY ARBITRATORS,

To ALL TO WHOM THESE PRESENTS SHALL COME, OR MAY
concern: Send greeting, E. F., L. M., and 5. T., to whom were
submitted as arbitrators, the matters in controversy existing
between A. B., of ...., county of .... and State of ...., and C,
D., of di - by their submission in writing, dated the .... day
of . . 18.., more fully appears. Now, therefore, know
ye, that i. pe arbitrators mentioned in said submission, having
first been duly sworn according to law, and having heard the
proofs and allegations of the parties, and examined the matters in
controversy by them submitted, do make this award in writing,
that is to say:

Here insert the conclusions of the arbitrators as to all the mat-
ters submitted for their decision. ]

And we do further award, adjudge, and decree, that the said A.
B. and C. D. shall, and do, within ten days next ensuing the date
hereof, seal and execute unto each other, mutual and general
releases of all actions, cause and causes of actions, suits, contro-
versies, and demands whatsoever, for, or by reason of, any matter,
cause or thing, from the beginning of the world down to the date
of the said submission.

In witness whereof we have hereto subscribed these presents,
this .... day of ...., A. D., 18...

Signed, sealed and delivered E. F. [sear.
in presence of L. M. [sEAL.
SaMuEL Roop, S.T. [s#aL.

ABRAM WINGALL,

Assignments. When one person turns over to another any
right which he may possess he is said to assign it, and the instru-
ment by which he does it is called an assignment. The term is
applied to the transfer of some right already in existence as dis-
tinguished from the creation of a new right. Thus we speak of
the assignment of a contract or the assignment of a lease. The
person making the assignment is called the assignor, the one to
whom it is made the assignee.

All assignments affecting the title to land should be acknowl-
edged and recorded, as in the case of conveyances.

In order to render an assignment of a policy of insurance valid,
it must be made to one having possession of the premises or thing
insured at the time, and be allowed by the insurers, If an assign-
ment be made after loss, and without consent of the insurer, the
assignee, although in possession before the loss, cannot recover.
FORMS IN COMMON USE. 377

 

An assignment of a bond or book-account may be effected by a
simple delivery of the evidence of debt for a valuable consideration
thereby giving an assignee permission to sue for the same in the
name of the assignor. As this assignment, however, gives the
assignee no better title than the assignor had, it is always prudent
to give the debtor notice of the proposed assignment, that it may
be ascertained whether he has any defense to the claim.

In some of the States, assignees are allowed by statute to sue in
their own name, when the bond is for payment of money, and
drawn to order or assigns, and the assignment is in writing under
seal, and executed in the presence of two or more credible wit-
nesses.

An assignment is valid only when made in good faith. Any
party interested in testing its validity, can do so in an action; if it
can be shown before a jury that the assignment was made to evade
debts due to creditors, they will set it aside; if such fraud cannot
be proved, then it will stand.

An assignment by a debtor for the benefit of his creditors must
be an unconditional surrender of all his effects. If he secretly hold
back any property, such withholding is fraudulent, and punishable
by statute.

An insolvent debtor has the right to prefer one creditor to the
exclusion of all others, in case it be done in good faith.

All assignments for the benefit of creditors must be accompanied
by immediate delivery of the property.

Assignments of leases and other instruments affecting the title
to real estate, as well as assignments of mortgages, must be
acknowledged and recorded, like all other conveyances of such
property.

The proper words to constitute an assignment are, “assign,
transfer, and set over.”

ASSIGNMENT OF A DEED.

Kwow ALL MEN BY THESE PRESENTS, That A. B., the gran-
tee within named, and ......, his wife, for and in consideration of
the sum of .... dollars, to them in hand paid by C. D., of .....,
County of ......, and State of ......, at and before the enseal-
ing and delivery hereof, the receipt whereof is hereby acknowl-
edged, have granted, bargained, sold, assigned, and set over unto
the said C. D., his heirs and assigns, all that the within messuage,
tenement, and tract of land, (describing it,) containing twenty
acres, more or less, being the same premises which E. F., by the

w
378 MANUAL OF Tx.2 LAW.

 

within written indenture, dated the .... day of ..... A. D. 18..,
and recorded in, etc., granted and conveyed unto the said A. B.,
his heirs and assigns; [or, as the case may be,] together with all
and singular the rights, members and appurtenances whatsoever
thereunto belonging, or in any wise appertaining; and the rever-
sions, remainders, rents, issues, and profits thereof; to have and to
hold the said messuage, tenement, or tract of land, hereby granted
and assigned, with the appurtenances, unto the said C. D., his heirs
and assigns, to his and their only proper use and behoof forever,
And the said A. B., and his heirs, shall and will warrant and for-
ever defend by these presents, the said hereby granted and assigned
premises with the appurtenances, unto the said C. D., his heirs and
assigns, against the said A. B., and his heirs, and against all and
every other person or persons whatsoever, lawfully claiming, or to
claim, by, from, or under him, them, or any of them.

In witness whereof, the said parties have hereunto set their hands
and seals this .... day of ....,in the year of our Lord one thous-
and eight hundred and ......

=a
Signed, sealed, and delivered A.B. {u s.}
in presence of baa
WILLIAM Gray, C.D. {rs}

RIcHARD JONES. ae

ASSIGNMENT OF DEMAND FOR WAGES OR DEBT,

In ConsipzRATION of ..... dollars, to me in hand paid by C.
D., of the .... of ....., the receipt whereof is hereby acknowl-
edged, I, A. B., of the same place, have sold, and by these presents
do sell, assign, transfer, and set over, unto the said C. D., a certain
debt due from E. F., amounting to the sum of ..... dollars, for
work, labor, and services by me performed for the said E, F. (or
for goods sold and delivered to the said E. F.), with full power to
sue for, collect, and discharge, or sell and assign the same in my
name or otherwise, but at his own cost and charges; and I do
hereby covenant that the said sum of .... dollars is justly due as
aforesaid, and that I have not done, and will not do any act to hin-
der or prevent the collection of the same by the said C. D.

Witness my hand, this April roth, 1863. A. B.

ASSIGNMENT OF ACCOUNT ENDORSED THEREON.

IN CONSIDERATION of one dollar, value received, I hereby sell
and assign to C. D. the within account, which is justly due from
the within named E. F., and I hereby authorize the said C. D. to
collect the same. A. B,

New York, April
FORMS IN COMMON USE. 379

 

ASSIGNMENT OF A LEASE.

Know ALL MEN By THESE PreEsENTS, That I, the within-
named A. B., for and in consideration of the sum of .... dollars,
to me in hand paid by C. D., of ...., County of .... and State
of ....., at and before the ensealing and delivery hereof, the
receipt whereof I do hereby acknowledge, have granted, assigned,
and set over, and by these presents do grant, assign and set over
unto the said C. D., his executors, administrators, and assigns, the
within indenture of lease, and all the messuage therein described,
with the appurtenances; and also all my estate, right, title, term of
years yet to come, claim and demand whatsoever, of, in, to, or out
of the same; to have and to hold the said messuage and appurte-
nances unto the said C. D., his executors, administrators, and
assigns, for the remainder of the within-mentioned term, under the
rents and covenants within reserved and contained, on my part and
behalf to be done, kept and performed.

In witness whereof, etc. A.B. [SEAL.]

Signed, sealed, and delivered in presence of

GENERAL FORM OF AN ASSIGNMENT, TO BE ENDORSED UPON
ANY INSTRUMENT.

Know att MEN sy THESE Presents, That I, the within
named A. B., in consideration of the sum of ..... dollars, to me
paid by C. D., have assigned, transferred, and set over unto the
said C. D., and his assigns, all my interest to and in the within-
written instrument, and every clause, article, or thing therein con-
tained; and I do hereby constitute the said C. D., my attorney, in
my name, but to his own use, and at his own risk and costs, to
take all legal measures which may be necessary for the full recov-
ery and enjoyment of the assigned premises, with power of
substitution.

In witness whereof, etc. A.B. [SEAL]

Executed and delivered in presence of

ASSIGNMENT OF A DEBT.

Know ALL MEN By THESE Presents, That I, A. B., of ....,
County of ..... and State of ......, in consideration of ......
dollars, to me in hand paid by C. D., of the same place, the receipt
whereof I hereby acknowledge, have assigned, transferred, and
set over unto the said C. D., a certain debt due and owing to me
from E, F., of ......, County of ...... and State of ....., for
(here state the nature of the deb’), amounting to one hundred and
380 MANUAL OF THE LAW.

 

fifty dollars; hereby authorizing the said C. D., in my name or
otherwise, but at his own cost, to sue for, collect, receive, sell,
transfer, settle or discharge the said debt. And Ido covenant to
and with the said C. D., that the said sum of ...... dollars is
justly due and owing to me from the said E. F., and that I have
neither done, nor will do, any thing to diminish or discharge the
said debt, or hinder the said C. D., or his assigns, from collecting
the same.

In witness whereof, etc. A.B. [SEAL]

Executed and delivered in presence of

 

DECLARATION TO ACCOMPANY ABOVE.

I, C. D., of ....., County of ...... and State of ......,do
hereby declare that I have no claim or set-off to make to the pay-
ment of a certain debt due and owing by me to A. B., of ......,
County of ...... and State of ......, for (stating its nature),
amounting to ...... dollars; but, that the whole of the said sum
of money (with interest from ......, A. D., 18..), remains
unpaid and owing by me. C.D.

Witness:

ANOTHER FORM FOR ASSIGNMENT OF A DEBT.

Kwow Att MEN By THESE PRESENTS, That I, A. B., of ....,
County of ..... and State of ......, in consideration of the sum
of ...... dollars, now justly due and owing by me to C. D., of
the same place, and for the better securing the payment of the
same to the said C. D., have bargained, sold, assigned, and trans-
ferred to him, all that debt or sum of eight hundred dollars, now
due and owing to me from E. F., of the ..... and County of
seeeeyin the State of ....., for goods sold and delivered by me
to the said E. F., or his order, before the day of the date hereof,
and all my right, title, and interest, claim and demand, of, in, and
to the said debt or sum of ..... dollars, or any part thereof; to
hold to the said C. D., his executors, administrators, and assigns,
from henceforth, to his and their sole use and behoof forever.

In witness whereof, etc. A.B. [szau.]

Signed, sealed, and delivered in presence of

ASSIGNMENT OF A CLAIM FOR MONEY DUE ON ACCOUNT, COL-
LECTIBLE AT LAW IN THE NAME OF THE ASSIGNOR FOR THE
USE OF THE ASSIGNEE.

.Know att MEN By THESE Presents, That I, ......., of
FORMS IN COMMON USE. 381

 

weeeey County of ...... and State of ......, in consideration of
the sum of one hundred dollars, to me in hand paid by ......, of
++... aforesaid, do hereby assign and set over unto the said .....,
to his own proper use, without any account to be given for the
same, the sum of ..... dollars, and any and all other sum or sums
of money that are remaining due and payable upon and by reason
of the annexed account of moneys due me by ...... , of the ....
and County of ....., State aforesaid, and all my right, title,
interest, and demand, to and in the same; and do give and grant
unto the said ....., full power and authority to demand and
receive the same to his own use, and upon receipt thereof, or of
any part, to give discharges for the same. And I, the said .....,5
do hereby covenant and agree to and with the said ....., that the
said sum of ..... dollars is justly due and owing; and that I have
not received or discharged the same, or any part thereof.

In witness whereof, etc. [SEAL.]

Signed, sealed, and delivered in presence of

—

ASSIGNMENT OF POLICY OF INSURANCE.

Having sold and conveyed the premises within mentioned to
eseeeeee, OF ......, County of......, and State of ......., his
heirs and assigns forever, I do hereby, for and in consideration of
the sum of one dollar, to me in hand paid by the said .......05
assign and transfer the within policy of insurance to him, his exec-
utors, administrators, and assigns. The said ........, by sub-
scribing this assignment, makes himself responsible for all the
covenants to which I have bound myself by the within policy.

Witness our hands and seals, etc.

Signed, sealed, and delivered ; A.B. [SEAL.]

in presence of C.D. [skat.]

eererese coaeeeeese

ASSIGNMENT OF SHARES IN A COMPANY.

For Vatur REcEIvVED, I, ......, of ......, County ......5
and State of ....., assign the whole of my right, title, and interest
of, in, and to .... shares in the .... Company, of ...., to ...+,
of ....., County of ....., and State of ......, and constitute
him, his assigns and substitutes, my attorney and attorneys, with
full power to execute, in his or their name or names, certificates
for the said shares; hereby obliging myself, at his or their request,
to do all necessary matters and things for the more effectual trans-
fer of said shares to him or them.—Witness my hand, etc.

[sEAL. ]
382 MANUAL OF THE LAW.

 

Acknowledged before me, a Notary Public in and for the
County of ...., State of ....., this fifth day of May, A. D. 18...
@eeeeed eoeseveee 9

Notary Public.

ASSIGNMENT OF A SEAMAN’S WAGES.

Know att MEN By THESE Presents, That I, ........, of
++---., County of ......, and State of ......, for and in consid-
eration of the sum of .... dollars, in which I am justly indebted
tOo 54 ae ., of the same place, have assigned, sold, transferred, and
set over, and do hereby, by these presents, assign, sell, transfer,
and set over, unto the said ......, all such sum or sums of money
as are now due and owing to me, the said ........, for wages or
services on board the ship called “.,......,” from the master or
owner of said vessel, as mariner on her voyage from ....., to the
port of ......, which has recently terminated. And I do hereby
constitute the said ........ my attorney irrevocable, with full
power in my name, but at his own charge, to prosecute, recover,
receive, and give discharges for the same. And I, the said ....:,
do hereby covenant and agree, to and with the said ......, that I
have never released or discharged, and that I will not release or
discharge, the claim or demand arising and accruing as aforesaid.
Witness my hand, etc.

C.D. [szau.]

Signed, sealed, and delivered in presence of

[Signatures of witnesses].

 

ASSIGNMENT OF PARTNERSHIP PROPERTY AND DEBTS, BY ONE
PARTNER TO ANOTHER, IN TRUST, TO CLOSE THE CONCERN.

Wuerzas, A co-partnership has heretofore existed between
sess. and ......, both of the city of ...., which co.partnership
has been known under the name of ........, and which it is the
intention of the said co-partners forthwith to dissolve and deter-
mine:

Now, this indenture of two parts, made this .... day of ...0,
in the year 18.., by and between the said ......, of the one part,
and the said ......, of the other part, witzesseth:

First—That the co-partnership aforesaid, is hereby, by the
mutual consent of the said parties, dissolved and determined.

Second—The said ...... doth hereby sell, transfer, assign and
set over unto the said ......, his moiety of all the stock in trade,
goods, merchandise, effects, and property of every description
belonging to or owned by the said co-partnership, wherever the
same may be, together with all debts, causes of action, and sums of
FORMS IN COMMON USE. 383

 

money due and owing to the said firm from any and all persons
whomsoever, to hold the same to the said ......, and his assigns
forever, in trust for the following purposes, namely: That the said
eseeeee, Shall sell and dispose of all the goods, property, and
effects belonging to the said firm, at such time and in such manner
as he may think prudent; and shall, with reasonable diligence,
collect all the debts and sums of money due and owing to the said
firm; and shall, out of the proceeds of the said sales, and with the
money thus collected, pay and discharge all the debts and sums of
money now due and owing from the said firm, as far as the pro-
ceeds of said sales and the sums of money collected will go; and,
after fully satisfying all demands against the said firm, if there be
any surplus, shall pay over one moiety thereof to the said ..... or
his assigns.

Third—The said ......, doth hereby constitute and appoint
the said ......, his attorney irrevocable, in his, the said ......
own name, or in the name of the said firm, to demand, collect, sue
for and receive any and all debts and sums of money due and
owing to the said firm; to institute and prosecute any suits for the
recovery of the said debts, or to compound the same, as he may
judge most expedient; to defend any and all suits against the said
firm; to execute all such proper writings and acquittances as may
be necessary; and generally to do all such acts and things as may
be necessary or proper for the full and complete settlement of all
business and concerns of the said co-partnership.

Fourth—That said ......, for himself and his heirs, executors,
and administrators, hereby covenants to and with the said ......,
and his assigns, that he will sell and dispose of all the partnership
property and effects to the best advantage; that he will use his
best diligence and endeavors to collect all debts and sums of money
due and owing to the said firm; and that he will truly and faith-
fully apply the proceeds of said sale, and the moneys collected, to
the payment, discharge, and satisfaction of all debts and demands
against the said firm, as far as the same will go; and, after dis-
charging all such debts, will pay over to the said ......, or his
assigns, one moiety of any surplus that may remain; and further,
that he will keep full and accurate accounts of all moneys received
by him for goods sold, or debts collected, as well as of moneys
paid out, and will render a just, true, and full account therefor to
the said

Fifth—The said ......, for himself, etc., covenants to and with
the said ...... , etc., that, upon settlement of accounts, if it shall
be found that the debts due and owing from the said firm exceed
the amount of moneys received from the sale of the said goods,
and the debts collected, he will pay unto the said ......, or his
assigns, one moiety of any balance that may then be due and owing
from the said firm.

In testimony whereof, etc., (as in general form of assignment.)
384 MANUAL OF THE LAW.

 

ASSIGNMENT OF PARTNERSHIP PROPERTY AND DEBTS DUE BY
ONE PARTNER TO ANOTHER FOR A CERTAIN SUM.

Tuts INDENTURE of two parts, made and concluded this .....
day of ......, in the year 18.., by and between ......, of
inte aoa ee , of the first part, and ......, Of ...ceey ce ceeey
of the second part—witnesseth:

That, whereas, the said parties were lately co-partners in the
business of ......., which partnership was dissolved and deter-
mined on the ...... day of ...... last; and whereas many debts
due and owing to the said parties on account of their said co-part-
nership, are still outstanding, and debts due by the said firm are
yet unpaid; and whereas it is agreed that the said party of the
second part shall assign and release to the said party of the first
part all his interest in the stock in trade, goods, and effects, belong-
ing to the said firm, and in the debts now owing to the said firm,
and that the said party of the first part shall assume all the debts
and liabilities of the said firm, and shall discharge and indemnify
the said party of the second part from all liabilities and losses
arising from the said partnership.

Now, therefore, in pursuance of the said agreement, and in con-
sideration of the sum of ....., paid and secured to the said .....,
he, the said ....., doth hereby fully and absolutely sell, assign,
release, and make over to the said ....., all his right, title, interest,
and share, in and to all the stock in trade, goods, merchandise,
machinery, tools, books, leasehold premises, and effects, belonging
to the said partnership, of whatever kind or nature, and whereso-
ever situated; also, all his right, title, and interest in and to all the
debts and sums of money now due and owing to the said firm,
whether the same be by bond, bill, note, or account, or otherwise;
and the said ..... , doth hereby make and appoint the said .....,
his executors, administrators, and assigns, to be his attorney and
attorneys, to receive all and several the debts and sums of money
above mentioned, to his and their own use and benefit; and doth
hereby authorize the said ...... his executors, etc., to demand, col-
lect, and sue for the said debts and sums of money, and to use his,
the said ..... mame in any way or manner that the collection,
recovery, and realization of the said debts and demands may ren-
der necessary, as well in court as out of court, but at their own
proper costs and charges, and without cost or damage to the said
ocaverere . And the said ...... doth hereby further authorize the
said ..... to convey and transfer to his own name, and for his
own use and benefit, any and all sums of money and effects, real
and personal estate, which may be taken or received in the name
of the said firm, and to hold the same free from all claims by the
said ....., his executors, administrators, or assigns.

And these presents further witness, that, in pursuance of the
said agreement, the said ,...., for himself, his executors, and
FORMS IN COMMON USE. 385

 

administrators, doth hereby covenant to and with the said ......,
his executors and administrators, that he, the said ....., and his,
etc., shall pay and discharge, and at all times hereafter save harm-
less and indemnify, the said ..... » his, etc., from and against all
and every the debts, duties, and liabilities, which, at the dissolu-
tion and termination of the said partnership, were due and owing
by the said firm to any person or persons, for any matter or thing
touching the said partnership, and of and from all actions, suits,
costs, expenses, and damages, for, or concerning the said debts,
duties, and liabilities, unless the said ..... shall have contracted
any debts or incurred any liabilities, in the name, and on account
of the said firm, which are unknown to the said ....., and do not
appear in the books of the said firm, for which, if any such exist,
the said ..... does not hereby intend to make himself responsible.
In testimony whereof, etc. (as in general form of assignment).

ASSIGNMENT OF A BOND BY ENDORSEMENT.

Know ALi MEN BY THESE PRESENTS, That I, the within-
named ....., for, and in consideration of the sum of ....., to be
paid by ..... of ..... , at or before the sealing of these presents,
(the receipt whereof is hereby acknowledged), have granted, bar-
gained, sold, assigned, transferred, and set over, and by these pres-
ents do grant, bargain, sell, assign, transfer, and set over, unto the
said ....., his executors, administrators, and assigns, the within-
written bond or obligation, and the sum of ....., mentioned in
the condition thereof, together with all interest due and to grow
due for the same, and all my right, title, interest, claim and demand,
whatsoever, of, in, and to the same. And I authorize the said....,
in my name to demand, sue for, receive, have, hold, and enjoy the
said sum of ....., and interest, to his own use absolutely forever.

In testimony, etc. (as in general form of assignment).

ASSIGNMENT BY A DEBTOR TO TRUSTEES, FOR THE BENEFIT OF
HIS CREDITORS.

Tuis INDENTURE, made the ..... day of ....., eighteen hun-
dred and ......, by and between ......, of ......, merchant, of
the first part, ......, of ......, of the second part, and the sev-
eral persons, creditors of the said party of the first part, who have
executed or shall hereafter execute or accede to these presents, of
the third part—witnesseth:

That, whereas, the party of the first part is indebted to divers
persons in considerable sums of money, which he is at present
unable to pay in full, and he is desirous to convey all his property
386 MANUAL OF THE LAW.

 

for the benefit of all his creditors, without any preference or pri-
ority other than that provided by law. .

Now, the party of the first part, in consideration of the premises,
and of one dollar paid to him by the party of the second part,
hereby grants, bargains, sells, assigns, and conveys, unto the party
of the second part, and his heirs and assigns, all his lands, tene-
ments, hereditaments, goods, chattels, property, and choses in action,
of every name, nature, and description, wheresoever the same may,
except such property only as is exempted by law from attachment.

To have and to hold the said premises unto the said party of the
second part, and his heirs and assigns.

But in trust and confidence, nevertheless, to sell and dispose of
the said real and personal estate, and to collect the said choses in
action, using a reasonable discretion as to the times and modes of
selling and disposing of said estate, as it respects making sales for
cash or on credit, at public auction or by private contract, and with
the right to compound for the said choses in action, taking a part
for the whole, where the trustees shall deem it expedient so to do;
then in trust to dispose of the proceeds of the said property in the
manner following, viz.:

First—To pay all such debts as by the laws of the United
States or of this State are entitled to a preference in such cases;

Second—To pay the costs and charges of these presents, and the
expenses of executing the trusts declared in these presents;

Lhird—To distribute and pay the remainder of the said pro-
ceeds to and among all the parties of the third part, ratably, in
proportion to their respective debts; (or, if there is a statute regu-
lating the distribution, say,) according to the true intent and mean-
ing of an act entitled “An act,” etc:

And, if there should be any surplus, after paying all the parties
of the third part in full, then in trust;

fourth—To pay over such surplus to the party of the first part,
his executors, administrators, or assigns.

And the party of the first part hereby constitutes and appoints
the party of the second part his attorney irrevocable, with power
of substitution, authorizing him, in the name of the party of the
first part, or otherwise, as the case may require, to do any and all

-acts, matters, and things, to carry into effect the true intent and
meaning of these presents, which the party of the first part might
do if personally present.

And the party of the second part, hereby accepting these trusts,
covenants to and with each of the other parties hereto, to execute
the same faithfully.

And the party of the first part hereby covenants with the said
trustee, from time to time, and at all times when requested, to give
him all the information in his power respecting the assigned _prop-
erty, and to execute and deliver all such instruments of further
assurance as the party of the second part shall be advised by coun-
FORMS IN COMMON USE. 337

 

sel learned in the law to be necessary in order to carry into full
effect the true intent and meaning of these presents,

And the parties of the third part, by signing and sealing these
presents, express their assent to this assignment, and accept the
provision for them made herein, pursuant to the statute aforesaid.

In testimony whereof, etc. (as in general form of assignment).

ASSIGNMENT OF A JUDGMENT.

the
Cause.

Title of

Judgment and costs, $50.00.

Judgment roll filed in the office of the clerk of .... on the ....
day of ...., 18...

For and in consideration of .... dollars to me in hand paid, I
hereby sell, assign, and transfer to A. B. the judgment above
mentioned, for his use and benefit, and authorize him to collect and
enforce the payment thereof in my name or otherwise, but at his
own expense, and covenanting that the sum of .... dollars, with
interest from the .... day of ...., 18.., is due thereon,

In witness, etc.

[Signature.]  [Seal.]

ASSIGNMENT OF TAX BID.

For A VALUABLE CONSIDERATION, to ...... in hand paid, the
receipt whereof is hereby acknowledged ...... do by these pres-
ents, assign, transfer and set OVEr tO .......ceeecccccccccesece

all ...... claim, right, title, and interest, in and to the within cer-
tificate of tax sale No. ......, issued by the Treasurer of .......
County, for taxes of tbe year 18...

In testimony whereof, ...... have hereunto set ...... hand
and seal this ...... day of ......, 18...

pea tearm 9

In presence of

at
388 MANUAL OF THE LAW.

 

State oF MICHIGAN, bss
County of :
On this ...... day of ......, A. D. 18.., personally came
before me, a.......... in and for said County, the above named

 

and acknowledged the foregoing assignment to be ...... free act
and deed,

seeeeeeees County, Mich,

ASSIGNMENT OF MORTGAGE.

Know ati MEN By THESE PRESENTS, That .....cecceeees

i i i a as SC mrerene cose

lawful money of the United States of America, ........ in hand
Paid Dyin seit oie gia. siinier sie ‘aree iets ais danletesal bia SAG eRe SRG ae eee haloes
of the second part, at or before the ensealing or delivery of these
presents, the receipt whereof is hereby acknowledged, have
granted, bargained, sold, assigned, transferred, and set over, and
by these presents do grant, bargain, sell, assign, transfer, and set
over unto the said part.... of the second part, a certain indenture
of mortgage, bearing date the ...... day of ...... one thousand
eight hundred and eighty ...... made ....c.ccccecccceees

we ewe em meee ee te eae se see tem were ee wwe canes ene ae eee ensence

and recorded in the Register’s Office of the County of ......,
State of Michigan, in Liber .... of Mortgages, at page ..., with
all and singular the premises therein mentioned and described
together with the ...... or obligation therein also mentioned, and
the moneys now due, and the interest that may hereafter grow due
thereon; to have and to hold the same unto the said part.... of
the second part, ...... heirs and assigns, forever, subject only to
the proviso in the said indenture of mortgage mentioned. And
+++. do hereby authorize and appoint the said part.... of the
second part, ...... true and lawful attorney, irrevocable in .....
name, or otherwise, but at ...... proper costs and charges, to
have, use, and take all lawful ways and means for the recovery of
the sum or sums of money now due and owing, or hereafter to
become due and owing, upon the said ....., and mortgage; and
in case of payment to give acquittance or other sufficient discharge,
as fully as ...... might or could do if these presents were not
made; and ...... do hereby for ....., heirs, executors, and
administrators, covenant, promise, and agree to and with the said
part.... of the second part, that there is ...... due uponthe said
eeees. and mortgage the sum of
FORMS IN COMMON USE. 389

 

 

and that sed ave aie ha.. good, right, and lawful authority to grant,
bargain and sell the same in manner aforesaid.

Sealed and delivered the ...... day of ...... » 188...

rr ee rr ae) oo { L. 8. }

In presence of paar

State oF MICHIGAN,
County of a :

On this ...:.. day of ...... A. D. one thousand eight hun-

dred and eighty ...... » before me,a ..... sis aSasavavate. clece eususietapais

in and for said County, personally appeared ...............-+-
to me known to be the same person.. described in and who
executed the within instrument and acknowledged the same to be
weeee. free act and deed,

—_—

Bills of Exchange and Promissory Notes. A Bill of Ex-
change is a written order or request made by one person to another
for the payment of money. A promissory note is a written prom-
ise to pay a certain sum of money, at a future time, unconditionally.
When payable to order or to bearer these instruments are nego-
tiable, and are transferred by endorsement. The parties to a bill
ef exchange are the drawer, or one who makes it; the drawee or
ene to whom it is payable, and the acceptor or one to whom it
is directed. If the drawee indorses over to another person he
becomes an ezdorser, and the person to whom it is indorsed
becomes the older. If the bill on being presented to the drawee
is not by him “accepted” it must be protested for non-acceptance,
in order to hold the indorser. See Chapter on Notaries, page 285.

The parties to a Promissory Note are the maker, the payee, and
the indorser. When duly indorsed a promissory note becomes in
legal effect almost identical with a bill of exchange, and must like
that instrument be “protested for non-payment” in order to hold
the endorser. For form of protest see page 286.

The following are the forms in common use:

BILL OF EXCHANGE.

$10,000. Detroit, Aug. 31, 1885.
Thirty days after sight pay to the order of Messrs. Z. H. & Co.
ten thousand dollars, and charge to the account of H. A.

To Messrs. A. S. B. & Co., New York,
39° MANUAL OF THE LAW.

 

ACCEPTANCE OF A BILL OF EXCHANGE.

The usual form of accepting a bill of exchange is to write the
word “accepted” with the name of the acceptor, across the face or
on the back of the bill or draft.

ANOTHER FORM OF BILL OF EXCHANGE,

Iss 000. New York, May 1, 18...
At sight [or —— days after sight, or days after date, or on
the day of , 18—], pay to the order of C. D., one thou-

sand dollars, and charge the same to account of
Yours, etc. A. B.

To Messrs. E. F. & S. H., New Haven.

 

 

 

——_

Bills of Exchange are of two kinds, Poreign and Inland. A
Foreign Bill is one of which the drawer and drawee are residents
of countries foreign to each other. In this respect the States of
the United States are held foreign to each other. (2 Peters, 589).

An Inland Bill is one of which the drawer and drawee are
residents of the same State or country.

A SET OF FOREIGN BILLS OF EXCHANGE.

Ex. £1000 Stg. New York, May 1, 18...
Ten days after sight of this my first of exchange (second and
third unpaid), pay to E. F. or order one thousand pounds sterling,
value received, and charge the same to the account of
A. B.
To Messrs, E. Bond & Co., London.

Ex. £1000 Stg. New York, May 1, 18...
Ten days after sight of this my second of exchange (first and
third unpaid), pay to E. F. or order one thousand pounds sterling,
value received, and charge the same to the account of
A. B.
To Messrs. E. Bond & Co., London,

Ex. £1000 Stg. New York, May 1, 18...
Ten days after sight of this my third of exchange (first and
second unpaid), pay to E. F. or order, one thousand pounds ster-
ling, value received, and charge the same to the account of
A. B.
To Messrs. E. Bond & Co., London.
FORMS IN COMMON USE. 39!

 

COMMON FORM OF PROMISSORY NOTE.
$99¢.00. Lawnsine, Mich., Sept. 1, 1885.

Sixty days after date I promise to pay to the order of James
Gordon Bennett nine hundred and ninty-nine dollars at ‘Lansing
National Bank, with interest at seven per cent per annum. Value
received.

OLIVER CROMWELL,

Nos scces Diteicceviss

NOTE NOT NEGOTIATABLE.

$450.00. New York, Jan. 2, 1884.

Ninety days after date, for value received, I promise to pay te
James Brown four hundred and fifty dollars.
Joun Curtis.

The introduction of the words “or order” into the above note
would render it negotiable.

A NEGOTIATABLE NOTE.

$1,000. HARRISBURG, June 4, 1884.

Sixty days after date, I promise to pay to James Brown, or
order, one thousand dollars (insert interest if intended), without
defalcation or discount, for value received.

Joun Curtis,

NOTE WITH SURETY.

$700. ALBANY, March 2, 1884.

Ninety days after date, I promise to pay to A. B., or order,
seven hundred dollars, for value received.
C. D.

E. F., Surety.

A NEGOTIATABLE NOTE.
$200.
Thirty days after date, for value received, I promise to pay te
A. B., or order, two hundred dollars. Cc.
392 MANUAL OF THE LAW.

 

A JOINT NOTE.

$1,600. Pzorta, IIL, Sept. 1, 1885.

Thirty days after date we jointly, but not severally, promise to
pay to Carter Harrison, or order, sixteen hundred dollars, for

value received, with interest at six per cent per annum.
MILES STANDISH,

Tuomas Jongs.

If the above note were worded “ fointly or severally” it would
he a joint and several note, and could be collected from either of
the makers,

INDORSEMENT TO ORDER.
Pay to the order of G. H. A. B,

INDORSEMENT TO AGENTS, FOR COLLECTION,

Pay to the order of the cashier of the First National Bank of
New York, for collection, A. B.

—_—

INDORSEMENT WITHOUT RECOURSE,
Pay to the order of G. H., without recourse, A. B.

——

DRAFT.

$500. New York, May 1, 18...

Three days after sight, pay to the order of A. B. five hundred
dollars, value received, which charge to the account of
Yours, etc.,
F. Krys & Co.
Messrs. H. Smith & Co., Boston.

CHECK,

New York, June 1, 18...
First National Bank of New York:

Pay to John Smith or order, three hundred and fifty dollara
($350). Jamzs Brown.
FORMS IN COMMON USE. 893

 

Bills of Lading. A bill of lading is the written evidence of a
contract for the carriage and delivery of goods, sent by water, for
a certain freight. It is signed by the captain or master of the ship
or vessel, and states, among other things, the names of the parties
by whom the goods are shipped, and where and to whom they are
to be delivered. There are generally three copies of the instru-
ment, one of which is sent to the consignee of the goods by the
ship which carries the goods, another by some other conveyance,
and the third is kept by the merchant or shipper. The following

ig a common form:
BILL OF LADING.

Shipped, in good order and well conditioned, by [name the con-
signor of the goods], on board the [describe vessel] called
the [name vessel], whereof M. N. is master, now lying in
the port of ...., and bound for the port of ...., [here
designate the merchandise] being marked and numbered as
$ in the margin, and are to be delivered in the like order and
condition at the port of ..... , (the dangers of the seas
only excepted), unto [name the consignee} or to his
[or their] assigns, he or they paying freight for the said
.... With .... primage and average accustomed. In wit-
NESS WHEREOF, The master or purser of the said vessel
hath affirmed to (three) bills of lading all of this tenor and
date; one of which being accomplished, the others to stand
void.

Dated in .... the .... day of ...., 18...

[Signature of Master.]

the marks of the packages in
the margin here, ]

[Copy

BILL OF LADING.

Shipped, in good order and well conditioned, by A. B., on board
tlie steamship called the Bothina, commanded by E. F., now lying
in the port of Boston and bound for the port of Liverpool [here des-
ignate the merchandise], being marked and numbered as in the
margin, and are to be delivered in the like order and condition at
the port of Liverpool (the dangers of the sea only excepted) unto
C. D., or to his assigns, he paying freight for the said .... with
_ eee primage and average accustomed.

In witness whereof the master or purser of the said vessel hath
affirmed to (three) bills of lading, all of this tenor and date; one
of which being accomplished, the others to stand void.

Dated in.... the .... day of ...., 18... E. F.

The instrument given by the carrier of goods by land is some-
what similar to a bill of lading, but is called a Shipping Receipt.
394 MANUAL OF THE LAW.

 

Bills of Sale. A bill of sale is an agreement in writing,
under seal, by which one person conveys to another the right and
title which he has in goods and chattels. Its most common use is
to effect a transfer of personal property of which immediate pos-
session cannot be given. By the maritime law, the transfer of a
ship must generaly be done by a bill of sale.

A bill of sale is usually sufficient to pass a title to personal
property, even against creditors of the seller, provided it be made
‘for a good consideration, and free from taint of fraud.

A bill of sale, executed in fraud of creditors, is absolutely void.

SHORT FORM OF BILL OF SALE.

Know ALL MEN By THESE PrEsENTS, That I, ....... of
+eeeee, County of ...... and State of ......, in consideration of
..+... dollars, to me paid by ......, of the same place, have bar-
gained and sold to said ......, the following goods and chattels,
to wit: one gray horse, one wagon, and three cows.

In witness whereof I have hereunto set my hand and seal, this
seoeanday of acacia. As Ds 182.5

Signed, sealed, and delivered [szar.]
in presence of

BILL OF SALE OF GOODS.

Know ALL MEN By THESE PreEsENTS, That I, ........ of
++ eee, County of ...... and State of ......, for and in consid-
eration of the sum of ...... dollars to me in hand paid by ......,
of the same place, at and before the sealing and delivery of these
presents, the receipt whereof is hereby acknowledged, have bar-
gained, sold, and delivered, and by these presents do bargain, sell,
and deliver unto the said ...... (insert a list of the goods sold):
To have and to hold the said goods unto the said ......, his
executors, administrators, and assigns, to his and their sole use and
behoof, forever. And I, the said ......, for myself, my execu-
tors and administrators, will warrant and defend the said bargained
premises unto the said ..,..., his executors, administrators, and
assigns, from and against all persons whomsoever In witness
whereof, etc. :

Signed, sealed, and delivered [szar.]
in presence of
FORMS IN COMMON USE 395

 

BILL OF SALE OF HOUSEHOLD GOODS, WITH SCHEDULE, ETC.

Know att MEN By THESE PresENTS, That I,........., of

wieisievers » parish of..,... and State of ......, in consideration of
the sum of one thousand dollars, to me in hand paid by ......, of
the same place, at and before the ensealing and delivery hereof,
the receipt whereof I do hereby acknowledge, have bargained,
sold, released, granted, and confirmed, and by these presents do
bargain, sell, release, grant, and confirm unto the said ......, all
the stock, goods, household stuff, implements of household, and all
other goods and chattels whatsoever, mentioned and expressed in
the schedule hereunto annexed, now remaining and being in the
house lately occupied by me in said ..... , and upon the plantation
on which said dwelling house stands; to have and to hold all and
singular the said stock, goods, and chattels, and every of them, by
these presents bargained, sold, released, granted, and confirmed,
unto the said ......, his heirs, executors, administrators, and
assigns, to his and their only proper use and behoof, forever.

In witness whereof, etc.

Signed, sealed, and delivered [SEAL]

in presence of t

Schedule.

The following is a schedule of the goods and chattels granted
in the foregoing bill of sale:

[The schedule should set forth each article sold and signed
by the seller in the annexed bill of sale.]

BILL OF SALE OF A HORSE, WITH WARRANTY.

Kwnow ALL MEN spy THESE Presents, That I, ........, of
eeees+y County of ....6. and State of ...... , for and in consid-
eration of the sum of ...... dollars to me in hand paid by ......,
of the same place, at and before the sealing and delivery of these
presents, the receipt whereof is hereby acknowledged, have bar-
gained, sold, and delivered, and by these presents do bargain, sell,
and deliver unto the said ...... (here describe the horse fully):
To have and to hold the same, unto the said ......, his executors,
administrators, and assigns, forever.

And I do hereby warrant the said horse to be sound in every
respect, to be free from vice, well broken, kind and gentle in
single and in double harness, and under the saddle; and I do cove-
nant for myself, my heirs, executors, and administrators, with the
said ......, to warrant and defend the sale of the said horse unto
the said ......, his executors, administrators, and assigns, from
and against all and every person or persons, whomsoever, lawfully
claiming, or to claim the same. In witness whereof, etc.

Signed, sealed, and delivered (szar.]
in presence of :
390 MANUAL OF THE LAW.

 

BILL OF SALE COMMONLY USED IN MICHIGAN,

Know ALL MEN By THESE PrEsENTS, That ........ of the
«se... Of ......in the County of ...... and State of ......, of
the first part, for and in consideration of the sum of ...... dollars,
lawful money of the United States, to ...... paid by ..........
of ...... of the second part, the receipt whereof is hereby
acknowledged, ha.. bargained and sold, and by these presents do
«sees. grant and convey unto the said part.. of the second part,
seeeeess Executors, administrators, or assigns, all the ..........

To have and to hold the same unto the said part.. of the second
part, ...... executors, administrators, and assigns, forever. And
the said part... of the first part for .......... heirs, executors,
and administrators, do ...... covenant and agree to and with the
said part... of the second part, ...... executors, administrators,
and assigns, to warrant and defend the sale of the said property,
goods, and chattels hereby made, unto the said part... of the sec-
ond part,...... executors, administrators, and assigns, against all
claim or claims, and every person or persons whatsoever.

In witness whereof, .... have hereunto set .... hand and seal
this .... day of ...., one thousand eight hundred and .......

Signed, sealed, and delivered [SEAL.]
in presence of [szax.]

[sEAL.]

BILL OF SALE OF A VESSEI.

To ALL TO WHOM THIS BILL oF SALE SHALL COME: Know
Ey LAL Srole ss cies aie ie ale sitiwieis ie eleis obe'e sole S'sse oiuiatvisia wie eee ae
«eeeeeee part... of the first part for and in consideration of the
sum of ........ to........ in hand paid, at or before the enseal-
ing and delivery of these presents, by ........... part... of the
second part, the receipt whereof is hereby confessed and acknowl-
edged, ha... granted, bargained, sold, assigned, transferred, and.
delivered unto the said part... of the "second part, ......... the
good ........ together with all and singular, her anchors, chains,
cables, masts, rigging, tackle, apparel, and furniture of every
name, kind, and description whatever, the certificate of whose last
enrollment is in the words and figures following, viz.:
FORMS IN COMMON USE. 397

 

 

ENROLLMENT No.......

Enrollment in conformity to Title L, “Reg-|___
ulation of Vessels in Domestic oe Noumaease. | Lerrzns.
merce,” of the Revised Statutes

of the United States.

OFFICIAL NUMBER.

 

 

 

 

 

 

having taken and subscribed the .....+.. required by law, and
having .......... that he.., together with .......ccecscoveee
viseareeeey citizen.. of the United States, sole owner. of the
ship or vessel called the ........., of ........, whereof ......
is at present Master, and as he hath ........ is a citizen of the
United States, and that the said ship or vessel was built at ......
eeceeseeee inthe year 18.., as appears by..cessecsececccoees
Die Caeh nie nee ame pesome usnuens RG a asm circa aalaretenrean twee
sevcneeee “having certified that the said ship or vessel has......-
deck., and .................++. mast.., and that her length is

 

 

 

 

seudte@usiieaneedes + cua semsebeaetoue eed sskceiseeacnerbsdeeaeeeern’ rv feet
her breadth «osc. ccs acccesccaconwaine... coceeccanesceswameereorenss rv feet
Weft depths. cece ae ncacou ce we cweeettctcmeciiseciacscovscsexs ssc ae ru feet
her height-22252 0c ce Jccecesccedcesces Srecu eels rscce owen Geseemsecsse 1v feet
that she measures ......... ... and .... hundredths tons, viz.:
TONS. | LOoTHs.
Capacity under tonnage deck... 220. .2---- een ene e==|--------]- tescwics
Capacity between decks above tonnage deck .._.....---]----+---].. gweves
Capacity of inclosures on the upper deck, viz.t......----|---- scicc| Seccs ‘wee
Total Tonnage... 2.1.0.2 202. e ener een e ee enee nn ee oeecevee

 

 

 

That the following described spaces, and no others, have been

omitted.:.......--- ris xe -ahe aye eee: are eal slieos im ekiahrebaene Vio et aeene kshaveve
that she is a ............ y»hasa..... we... Stern and ..... cate
whead. And the Bald ecrt cite tleatee ees ae sls sratectie

having agreed to the description and measurement above specified,
and sufficient security having been given according to the said
title, the said ship or vessel has been duly enrolled at the port of

Given under my hand and seal, at the Port of .........-.

[u. .] in the District of ............-- this os HES ie ale ee
ree day of ........) in the year one thousand
eight hundred and seventy-...... ee
alive diaa aac sietecsiwewen) Looe

Naval Officer. Collector of Customs.
398 MANUAL OF THE LAW.

 

To have and to hold, the said .......... and the appurtenances
thereunto belonging, unto the said part.. of the second part .....
heirs and assigns, to ........ sole and only proper use, benefit, and
behoof, forever.

And the said part.. of the first part, do ..., hereby covenant,
promise and agree, to and with the said part.. of the second part,
ee heirs and assigns, that at the time of the ensealing and
delivery of these presen‘s, ...... , the said part.. of the first part,
eeeeeteree sole, true, and lawful owner of the said vessel and of the
appurtenances thereunto belonging; that they are free from all
liens and incumbrances, and that ........ will forever warrant
and defend the same against the lawful claims or demands of all
persons whatsoever.

In witness whereof, the part.. of the first part ...... hereunto
Set dos hand.. and seal.. at the city of .... this ...., day of
ECS euss ’ A, D. 187. ee

In presence of al

i teeke

Bonds. A bond is a written instrument, under seal, by which
the maker acknowledges some debt, liability, or duty, which he
agrees to discharge or in default to pay a penalty therein named.
The maker of a bond is called the od/zgor, the person to whom it
is made, the od/7gee. A bond for the payment of money at an
appointed day, without expressing any condition which may render
the bond void, is called a sézgle bond. It is very much like a
note, Itis usual, however, to add a condition that if the obligor
performs some particular act, the obligation shall be void; other-
wise it shall remain in full force and virtue.

The penalty in a bond is usually fixed at double the amount of
the real debt, for the purpose of securing the full debt with inter-
est, and costs if necessary.

If the debt secured is not paid, or the obligation, whatever it
may be, is not perfermed, the penalty becomes due; but all that
can be recovered out of it is the actual debt with interest and costs,
or the actual damages that have been occasioned by the breech.
The maker of a bond binds himself, his heir, executors, and admin-
istrators. The effect of this is to render the heirs liable up to the
extent which they inherit from the obligor. It is customary to
have one or two sureties to bonds. Sureties are bound the same
as the obligee, unless the bond expresses otherwise. They are
relieved if the obligee alters the obligation without their consent,
FORMS IN COMMON USE. 399

 

Bonds are used to secure the payment of money, er the perform-
ance of some act, or the faithful discharge of the duties of some
office, etc.

Bonds are often made with one or two sureties whose names
appear as such in the body of the instrument and who sign and
seal the bond the same as the principal does, and who thus become
liable to pay the bond if the principal does not. Bonds may be
witnessed and acknowledged. Though this is not necessary to
their validity it is sometimes desirable to have it done.

It may be well to explain here that a bond is an obligation
under seal to pay money. It is sometimes used simply to secure
the payment of money, like a promissory note is, But it is gen-
erally used to secure the doing of some thing else (anything that
the obligor may contract to do) o# the penalty of paying a certain
sum of money if the thing is not done. The thing to be done is
called the “condition” of the bond. If it is performed the bond
becomes void. If the condition is not performed the bond becomes
payable; and under the early common law the whole amount of
the bond, no matter how large or how greatly in excess of the
damages occasioned by the failure to perform the condition,
became payable to the obligee. But the courts have in modern
times endeavored to mitigate the severity of such a contract, and
now the law will allow only a recovery under a bond of such an
amount as will indemnify the obligee for the loss and damage he
has sustained by reason of the obligor’s failure to perform the con-
dition of the bond.

COMMON FORM OF BOND.

Know ALi MEN BY THESE PRESENTS, That I,.....,0f....,
County ....., and State of ....., am held and firmly bound unto
eece.., Of the same place, in the sum of .... dollars, lawful money
of the United States, to be paid to the said ......, his certain
attorney, executors, administrators, or assigns; to which payment
well and truly to be made, I do bind myself, my heirs, executors,
and administrators, firmly by these presents: sealed with my seal,
and dated this .... day of ...., A. D. one thousand eight hundred
and .....

The condition of this obligation is such, that if the above-
bounden ..... , his heirs, executors, administrators, or any of
them, shall and do well and truly pay, or cause to be paid, unto
the aforesaid ..... . his executors, administrators, or assigns, the
400 MANUAL OF THE LAW.

 

full and just sum of ..... dollars, lawful u.vicy, as aforesaid,
with legal interest for the same, on or before the ..... day of
..... next, without fraud or further delay, then this obligation to
be void and of none effect, otherwise to be and remain in full
force and virtue.
Signed, sealed, and delivered [szax.]

in presence of

ence ne neeeg

JUDGMENT BOND.

If a judgment bond be desired, add to the above, after the con-
dition, as follows: And further, I do hereby empower any attor-
ney of any of the Courts of Record, of this State, or elsewhere, to
appear for me, and after one or more declarations filed for the
above penalty, thereupon to confess judgment, or judgments,
against me, as of the then last, next, or any subsequent term, with
release of errors, costs of suits, etc.

BOND FOR THE FIDELITY OF A CLERK, TREASURER, CASHIER,
TELLER, ETC.

Know ALL MEN BY THESE PRESENTS, That we, A. B., of the
town of ...., in the county of .... and State of, and C. D., of,
etc., are held and firmly bound unto E. F., of the town of ...., in
the county of, and State of ....., merchant, in the sum of.....
dollars, lawful money of the United States, to be paid to the said
C. D., his executors, administrators, or assigns, for which pay-
ment, well and truly to be made, we do bind ourselves, our heirs,
executors, and administrators, jointly and severally, firmly by these
presents.

Sealed with our seals. Dated this .... day of ...., 18...

Whereas, the above named E. F. has employed H. M. as (here
insert the position to be held), in their business of....: Now, the
condition of this obligation is such, that if the said H. M. shall
well and faithfully (or with honesty and in good faith) discharge
his duties as such ....., and shall also account for all moneys and
property, and other things which may come into his possession or
under his control therein, then this obligation is to be void, “other-
wise to remain in full force.

(Signature and seal.}
Signed and sealed in presence of
[Name of witnesses. ]
FORMS IN COMMON USE. 4qor

 

CONDITION OF A BOND OF THE TREASURER OF A COMPANY.

Wuereas, The above-bounden ..... has been chosen Treas-
urer of the ......... Company, and by reason thereof will
receive into his hands divers sums of money, goods, chattels, and
other things, the property of the said Company. Now, therefore,
the condition of this obligation is such, that if the said ....., his
executors or administrators, at the expiration of the term of his
said office, shall, upon request to him or them made, make and
give unto such auditor or auditors, or other officers, as shall thereto
be appointed by the said Company, a true and correct account of
all such sums of money, goods, chattels, and other things, as have
come into his possession, by virtue of his office as Treasurer
aforesaid, and shall and do pay over and deliver to his successor in
the aforesaid office, or any other person duly authorized to receive
the same, all such balances or sums of money, goods, chattels, and
other things which shall remain on his hands and be by him due
to the said Company, then this obligation to be void, otherwise to
be and remain in full force and virtue,

CONDITION OF A BOND TO INDEMNIFY LESSEE ON PAYMENT
OF RENT.

THE CONDITION of this obligation is such, that, whereas the
above-bound ......, by indenture of lease bearing date even here-
with, hath demised and to farm let unto the said ......, all that
certain messuage or tract of land (describing it), to hold the same
to the said ...... for the term of three years, he, the said ......,
yielding and paying therefor the sum of four hundred dollars, in
equal quarterly payments for each and every year of the term
aforesaid, as in and by the said indenture appears; and whereas a
certain ........ claims title to the premises aforesaid with the
appurtenances. Now, therefore, if the said ...... shall and do,
from time to time, indemnify and save harmless the said ......,
his heirs, executors, and administrators, and his and their goods,
chattels, lands and tenements, of and from all actions, suits, costs,
charges, payments, and damages, for or by reason thereof, then this
obligation to be void, otherwise to be and remain in full force and
virtue,

CONDITION OF A BOND OF INDEMNITY TO DISCHARGE
ENCUMBRANCES.

TuE conpDiTION of this obligation is such, that, whereas, the
above-bound ......, by indenture bearing even date herewith,
hath granted, bargained, and sold unto the said ......, a certain
massuage or piece of land, situate (describing asin the deed), with

28
402 MANUAL OF THE LAW.

i
i

the appurtenances; and whereas the said piece of land is subject to
the lien of a mortgage made by the said ..,.... to ......, of said
.+eeee, and recorded in the office for recording deeds in’ said
county of ......,in Mortgage Book ..., page 364, conditioned
for the payment by the said ......, his heirs, executors, and
administrators, unto the said ...... , his heirs and assigns, of the
sum of ...... dollars, on or before the ...... day of ......
next, together with interest upon the same, as by a reference to
said deed of mortgage will more fully appear, Now, therefore,
if the said ...... do and shall, on or before the said ...... day of
sees, pay the said sum of five hundred dollars, together with
interest and costs, if any, in full, and procure full and complete
satisfaction of said mortgage to be entered of record in said office,
and do and shall, from time to time, and at all times hereafter,
well and sufficiently indemnify and save harmless the said ......,
his heirs, executors, and administrators, of and from the said mort-
gage, and of and from all suits, payments, costs, charges, and
damages, for or by reason thereof, then this obligation to be void
and of none effect, otherwise to remain in full force and virtue,

BOND OF INDEMNITY ON PAYING LOST NOTE.

Know ALL Men, etc., (as in Common Bond.) Whereas, the
said ......, on the ...... day of August, 18.., did make,
execute, and deliver unto the above-bounden ......, for a valu-
able consideration, his promissory note, for the sum of one hun-
dred dollars, written due and payable on or before the ...... day
of ......, then next, with interest, which said promissory note the
said ......, since the delivery of the same to him as aforesaid, has
in some manner, to him unknown, lost out of his possession; and
whereas, the said ...... hath this day paid unto the said ......
the sum of ...... dollars, the receipt whereof the said ..... ;
doth hereby acknowledge, in full satisfaction and discharge of the
said note, upon the promise of the said ...... to indemnify and
save harmless the said ...... in the premises, and to deliver up
the said note, when found, to the said ......, to be cancelled.
Now, therefore, the condition of this obligation is such, that if the
above-bounden ......, his heirs, executors, or administrators, or
any of them, do and shall, at all times hereafter, save and keep
harmless the said ......, his heirs, executors, and administrators, of,
from, and against the promissory note aforesaid, and of and from
all costs, damages, and expenses, that shall or may arise therefrom;
and also deliver, or cause to be delivered up the said note, when
found, to be cancelled, then this obligation to be void, else te
remain in full force and virtue.

Sealed, etc., (as in common bond.)
FORMS IN COMMON USE. 403

 

BOND OF INDEMNITY FOR TAKING GOODS ON EXECUTION, SOME-
TIMES REQUIRED BY CONSTABLES AND SHERIFFS.

(As in common form to and including the date, and then as
follows):

Whereas, the said, the said O. R. (the constable or sheriff),
as constable (or sheriff) as aforesaid, is about to seize and levy
upon certain goods and chattels, to wit: (describe the property) by
virtue of an execution issued upon a judgment in favor of the said
A. B. against C. D., by L. M., Esquire, a justice of the peace of
the township of ......, in the county of ......, with intent to
sell the same, which said property is alleged by the said A. B. to
be the property of the said C. D.; and whereas, the said O. R.
requires to be indemnified in the premises.

Now, therefore, the condition of this obligation is such, that if
the said A. B. shall at all times keep the said O. R. harmless and
indemnified from and against all damages, costs, charges, trouble,
and expense, of what nature soever, which he may be put to, sus-
tain or suffer by reason of such levy and seizure, or of the subse-
quent proceedings thereon, then this obligation is to be void, other-

wise of force. [Signatures and seals. ]

MONEY BOND.

Know ALL MEN BY THESE PRESENTS, That .....cccccssece
held and firmly bound unto ....... 22... cee eee eee eeu e eee nees
in the sum of ...... dollars, to be paid to the said ........ se wsiy
OF tO .....eee certain Attorney, Executors, Administrators, .or
Assigns.

For Which Payment, well and truly to be made, ..... bind
ais aatane zee and ..... Heirs, Executors and Administrators, jointly,
and severally, firmly by these presents.

Sealed this .... day of ...... , in the year of our Lord one
thousand eight hundred and .......

The Condition of this Obligation is such, That if the above
bounden, ..... eee ree oo , Heirs, Executors, Adminis-
trators, shall and do well and truly pay or cause to be paid, unto
the above named ........+eeeeeee certain Attorney, Executors,
Administrators, or Assigns, the sum Of .....ecsceeecccecccccee
without fraud or delay, then the preceding obligation to be void,
otherwise to remain in full force and virtue.

[Signature and seal].
Sealed, and delivered in t
presence of
404 MANUAL OF THE LAW.

 

NEGOTIABLE BOND OF A CORPORATION.

[ Zitle of the Corforation.]

Nerecegs.24 - D cceseoceses
This certifies that the ...... Railroad Company has received
the sum of one thousand dollars from Y. Z., and in consideration
thereof doth hereby promise and agree to pay to him, or to the
bearer (or to his assigns), the said sum of one thousand dollars, on
the ...... day of ......, 188-; and also interest on the same at
the rate of ...... per centum per annum, on the ...... day of
.seees in each and every ...... from the date hereof until the
said principal sum shall be paid, upon presentation of the annexed
interest warrants, as they severally become payable, at the office
of the company, in the city of .......
In witness whereof, and in pursuance of a resolution of the
Board of Directors, passed on the ...... day of ......,
[szAL.] 188., the corporate seal of said corporation is hereto
affixed, and these presents duly signed by the President
and Treasurer of the said Company this .... day of ....,
188..

wees crercces= ’ Baccececes weeed

Treasurer. President.

—————

FORM OF COUPONS, OR INTEREST WARRANTS, ANNEXED TO
NEGOTIABLE BONDS.
NO: ycasl cu : DP eerins .
The .......... Company promise to pay fifty dollars, semi-
annual interest, due on the ...... day of ..... ., 188-, upon their
bond number ......, on presentation hereof at their office in the
city OF .....0s [Signature.]

BOND OF TENANT, WITH SURETY, FOR THE PAYMENT OF RENT,

(The penal clause may be the same as in common form.)

Wuereas, The above named Y. Z., by indenture of lease
bearing even date with the above written obligation (or, bearing
date the ...... day of ......) for the consideration in the said
lease mentioned, hath demised to the above bounden A. B. certain
premises with the appurtenances situate in ......, for the term of
sees. years from thence next ensuing (determinable, neverthe-
less at the end of the first ...... years of the said term, if the
said ......, his executors, administrators, or assigns, shall give
«sees. months’ notice thereof in manner therein mentioned),
at and for the yearly rent of ...... dollars, payable (quarterly) as
therein expressed.
FORMS IN COMMON USE. 405

 

Now the condition of this obligation is such, that if the above
bounden A. B. and C. D., their heirs, executors or administrators,
or any of them, shall, during the continuance of the said lease,
well and truly pay, or cause to be paid, to the said Y. Z., his
executors, administrators or assigns, the yearly rent or sum of
sie aieen dollars in equal quarter yearly payments, on the ......
days of ...... (designating the month), or within ...... days
next after every of the said quarter days, according to the true
intent and meaning of the said recited lease (subject, nevertheless,
to the determination thereof, in manner as aforesaid), then the above
written obligation is to be void; but if default shall be made in any
of the said quarterly payments, then this obligation shall remain in
full force, [Signatures and seals. ]

ADMINISTRATOR’S BOND.

Cay of Wome. hes, Probate Court for said County.

In the Matter of the Estate of .........2++++, deceased.
Know ALL MEN BY THESE PRESENTS, That we, ........0.
within the State of Michigan, are holden, and stand firmly bound
and obliged unto ..........-. , Esq., Judge of Probate in and for
said County of Wayne, in the full sum of ....... dollars, lawful
money of the United States of America, to be paid unto the said
shacalls aie wie Seo ate , his successors in the said office, or assigns; to the
true payment whereof we do bind ourselves, and each of us, our
and each of our heirs, executors, and administrators, jointly and
severally, for the whole and in the whole, firmly by these presents.
Sealed with our seals.

Dated the ....... day of . ....., Anno Domini one thousand
eight hundred and eighty-.........

Wuereas, The above bounden .........eee0- .- ha.. been
appointed by the Probate Court of said County, administrat.... of
the estate of ..........4- late of said County, deceased: Vow
the condition of this present Obligation is such, That if the
above bounden ...........+000- shall well and truly perform,

observe, and keep the conditions following, to wit:

1st. That he shall make and return to the Probate Court afore-
said, within three months, a true and perfect inventory of all the
goods, chattels, rights, credits, and estate of the said deceased,
which shall come to ...... possession or knowledge, or the pos-
session of any other person for .......

2d. That he shall administer according to law, all the goods,
chattels, rights, credits, and estate of the said deceased which shall
at any time come to ...... possession, or to the possession of any
406 MANUAL OF THE LAW.

 

other person for ...... and out of the same pay and discharge all
debts and charges, chargeable on the same, or such dividends
thereon as shall be ordered and decreed by the Probate Court
aforesaid.
3d. That he shall render a true and just account of ......
administration to the Probate Court aforesaid, within one year,
and at any other time when required by such court. And,
4th. That he shall perform all orders and decrees of the Probate
_Court aforesaid, by the said administrat.... to be performed in the
premises. Then this obligation to be void and of no effect, or else
to abide and remain in full force and virtue. ;
Signed, sealed, and delivered L. Ss.

in presence of ts s.
L. §.

-

EXECUTOR’sS BOND.

se age ss. Probate Court for said County.

In the Matter of the Estate of ...............3 deceased.
Know att MEN BY THESE PRESENTS, That we, ..........

within the State of Michigan, are holden, and stand firmly bound
and obliged unto ............ , Esq., Judge of Probate in and for
the said County of Wayne, in the full sum of ...... dollars, law-
ful money of the United States of America, to be paid unto the
SAIC ie sess eei as » his successors in the said office, or assigns, to
the true payment whereof we do bind ourselves, and each of us,
our and each of our heirs, executors, and administrators, jointly
and severally, for the whole and in the whole, firmly by these
presents. Sealed with our seals,

Dated the ....... day of ....... » Anno Domini one thousand
eight hundred and eighty-.........

WuerEAS, The above bounden ................. ha.. been
appointed by the Probate Court of said County ................
Of. tected we be ud late of said County, deceased: Vow the condi-
tion of this present Obligation ts such, That if the above
bounden ................ shall well and truly perform, observe,
and keep the conditions following, to wit:

ist. That he shall make and return to the Probate Court afore-
said, within three months, a true and perfect inventory of all the
goods, chattels, rights, credits, and estate of the said deceased,
which shall come to ._.... possession or knowledge, or the pos-
session of any other person for .._....

2d. That he shall administer according to law, and the will of
the said testat,._. all the goods, chattels, rights, credits, and estate
FORMS IN COMMON USE, 497

 

of the said deceased which shall at any time come to ...... pos-
session, or to the possession of any other person for ......, and
out of the same pay and discharge all debts, legacies and charges
chargeable on the same, or such dividends thereon as shall be
ordered and decreed by the Probate Court aforesaid.

gd. That he shall render a just and true account of ........
administration to the Probate Court aforesaid, within one year, and
at any other time when required by such court. And,

4th. That he shall perform all orders and decrees of the Probate
Court aforesaid, by the said ............ to be performed in the.
premises. Then this obligation to be void and of no effect, or else

to abide and remain in full force and virtue,
Signed, sealed, and delivered ' Pe
in presence of |
WAYNE COUNTY, ss.
At a session of the Probate Court in and fo1 said County, holden
at Detroit, on ........ the _....... day of ...... , A. D. 188-.
I have examined and do approve of the foregoing bond, and

order the same to be filed and recorded in the Probate Office of
said County.

Pre
QOH

em eee rer ecener cc cnece ’

Fudge of Probate.

Certificates. The term “certificate” is most commonly
applied to the written statement of some fact made by some public
officer in an official capacity. Thus a notary makes a certificate
of the acknowledgment of a deed, the clerk of a court certifies to
the correctness of copies from the court records, etc.

CERTIFICATE OF ACKNOWLEDGMENT BY A NOTARY,

STATE oF MICHIGAN, has

 

County of .

On this ......ee0e . day of ............, in the year one
-thousand eight hundred and eighty-........ , before me, the sub-
scriber, a notary public ...... in and for said County, personally
appeared .....+.eeeeneee ., to me known to be the same person

described in and who executed the within instrument, and acknowl-
edged the same to be ...... free act and deed.
i scse taratsishaiaray 2 Tonaveh cate » Notary Public,
seeSislaeaee County,
Michigan.
408 MANUAL OF THE LAW.

 

CERTIFICATE TO COPY OF PAPER ON FILE.

 

STATE oF » COUNTY oF ——, a
Clerk’s Office, » ISS-. } ji
I po HEREBY CERTIFY that I have compared the foregoing
copy of a (name the instrument), and of the indorsements thereon,
with the original now on file in this office, and that the same is a
correct transcript therefrom, and of the whole of said original.
In testimony whereof, I have hereunto set
[OFFICIAL SEAL.] my hand and affixed my official seal this
ooo. day of ...., 188-.
[Signature and title of officer. ]

 

CERTIFICATE OF COUNTY CLERK AS TO OFFICIAL CAPACITY
AND AUTHORITY OF NOTARY PUBLIC, ETC,

 

STATE oF MICHIGAN,
County of t
I, ......, Clerk of said County, and Clerk of the Circuit
Court for the County of ......, which is a Court of Record,
having a seal, do hereby certify that ......, whose name is sub-
scribed to the certificate or proof of acknowledgment of ‘the
annexed instrument, and therein written, was, at the time of
taking such proof or acknowledgment, a notary public in and
for said County, duly commissioned and qualified, and duly auth-
orized to take the same. And further, that I am well acquainted
with the hand writing af such notary public, and verily believe
that the signature to the said certificate or proof of acknowledg-
ment is genuine. I further certify that said instrument is executed
and acknowledged according to the laws of this State.
In testimony whereof, I have hereunto set my hand
[szaL.] and affixed the seal of said court and county, at
eeee, this .... day of ...., 188
[Signature and title. ]

Charter Parties. A charter party is a contract of affreight-
ment in writing, by which the owner of a ship or vessel lets the
whole, or a part of her, to a merchant or other person, for the con-
veyance of goods, for a particular voyage, or period of time, in
consideration of the payment of freight.

CHARTER PARTY GIVING POSSESSION TO THE HIRER.

THESE ARTICLES OF AGREEMENT, made and entered into this
FORMS IN COMMON USE. 4°9

 

e+». day of ...., A. D. 18.., by and between A. B., of ......,;
of the one part, Y. Z., of the city of ......, of the other part,
witnesseth: the said party of first part has this day chartered and
hired unto the said party of the second part the steamboat ......,
of ......, (designating her port), and of the burden of .... tons,
or thereabouts, with all the appurtenances, cables, anchors, chains,
etc., which belong to said steamboat, for the term of .... months
from the .... day of ...., to be delivered at the port of .......
But in case the said A. By shall deliver the said boat at any time
before said day, the said term shall take date from the time of
delivery.

For the use of said steamboat, said Y. Z. agrees and binds himself
to pay to the said A. B. .... dollars, the payments to be made as
follows: ...... dollars on the delivery of said boat; ...... dol-
lars on the day of ...., and ...... dollars at the expiration of
said .... months. And it is further understood, that the said Y.
Z. shall be at all the expense of manning and furnishing said boat
for the time above stated, and shall return the same to the said A.
B. at the port of ...... in as good condition as it now is, with the
exception of the ordinary use and wear; and if the said Y. Z. shall
at any time fail to fulfill on his part the said A. B, shall have the right
to take possession of the said boat wherever the same be found.

In witness whereof, the said parties have hereunto interchang-
ably set their hands and seals, the day and year above written,
Signed, sealed, and delivered [Signatures and seals. ]

in the presence of

Chattel Mortgages. A chattel mortgage is a transfer of the
title to chattels or personal property, with or without possession,
as security for a debt or liability, and upon condition that the trans-
fer shall be void if the debt or liability is paid or discharged. The
general rules and doctrines governing real estate mortgages apply
also to chattel mortgages. (See Chapter VI., page 54.)

CHATTEL MORTGAGE.

Know ALL MEN BY THESE PRESENTS, That .......cceceee
party of the first part, being justly indebted unto ........ party
of the second part, in the sum of ........ dollars, has, for the

purpose of securing payment of the said debt and the interest
thereof, granted, bargained, and sold, and by these presents do
grant, bargain, and sell unto the said party of the second part the
following goods and chattels, to wit: (carefully describe the
articles). ‘To have and to hold the same unto the said party of
the second part, ...... executors, administrators, and assigns for-
410 MANUAL OF THE LAW.

 

ever, which said goods and chattels, at the date hereof, are situate
ab saxeveseg inthe. aia sn OF is naieve , County of ...... , State of
+eeeeeee, and are hereby warranted to be free and clear from all
liens, conveyances, incumbrances, and levies (here mention any
claims that the mortgage is made subject to). Provided always, and
the condition of these presents is such, that if the said party of the
first part shall pay or cause to be paid to the said party of the sec-
ond part the debt aforesaid with interest, at the time, and in the
manner following: (here state the time and manner of payment),
then this instrument shall be void and of no effect, otherwise to be
and remain in full force and virtue. And the said party of the
first part hereby agree.. to pay the same at the time and in the
manner aforesaid. And if default be made in such payment,
either in whole or in part, the said party of the second part is
hereby authorized to take possession of and sell at public auction,
after (state length of notice required), the goods and chattels
hereinbefore mentioned, or so much thereof as may be necessary
to satisfy and pay the whole of the said debt, interest, and reason-
able expenses, and to retain the same out of the proceeds of- such
sale, the overplus, or residue, if any, to belong and to be returned
to the said party of the first part. And the said party of the second
part is hereby authorized at any time when he shall deem himself
insecure, to take possession of the said goods and chattels, and the
same retain in some convenient place, at the risk and expense of
the said party of the first part, until the said debt is fully paid, or
the said goods and chattels are sold at auction in the manner herein-
before specified.

In witness whereof, the said party of the first party has here-
unto set his hand and seal the .... day of ...., in the year of our
Lord one thousand eight hundred and .....

—_

Signed, sealed, and delivered ie QnR Os tee ths {1 s.}
in presence of a

CHATTEL MORTGAGE, SHORT FORM, WITHOUT WARRANTY.

Know ALL MEN by these presents, that I, A. B., of ......,
hereby sell and assign to Y. Z., of ......, all the tools and
matertals now in my shop at ....... This grant is intended as a
security for the payment of .... dollars, with interest, on or
before the expiration of ...... from the date hereof, which pay:
ment, if duly made, will render this conveyance void,

(Conclude as in preceding form.)
FORMS IN COMMON USE. 411

 

Contracts. See agreements, page 358. See also the first
chapter of this book, page 5.

Coroners. The duties of coroners are prescribed in detail
by the statutes of the several States. It would be impractical to
give forms here, as they might not be of very general application.

Commissioners of Highways. The duties of highway com-
missioners are also prescribed by statute. They are charged with
the general duty of laying out and discontinuing highways. They
act usually upon petitions to them presented by interested free-
holders. The following forms of petitions may be of use to the
general public:

APPLICATION TO LAY OUT A HIGHWAY.

To the Commissioner of Highways of the Township of os. «++;

County of seereet

The undersigned, freeholders of the said township of ......, do
hereby make application to you to lay out a highway in a part of
said township not included within the corporate limits of any city
or village, and respectfully ask that you will proceed to lay out a
highway as follows: Commencing at (here insert a description
of the route of the proposed highway.)

Dated the .... day of ...., A. D......

[To be signed by seven freeholders of the township.]

APPLICATION FOR DISCONTINUANCE OF HIGHWAY.

To the Commissioner of Highways of the Township of ...+++5

County of ......%

The undersigned, freeholders of said township of ......, hereby
make application to you, the said commissioner, to discontinue the
highway in said township, running as follows: (describe the road
to be discontinued), which said highway is not included within the
corporate limits of any city or village.

Dated at ...., the .... day of ...., A. D......

(To be signed by seven freeholders of the township.)

(If the application be for an alteration of highway, the above

form can be changed accordingly.)
413 MANUAL OF THE LAW.

 

Corporations. Corporations are formed either by virtue of
special charters. granted by the Legislature of tne State or by Con-
gress, or under general laws which have been enacted in most of
the States by which voluntary associations are permitted to assume
corporate existence for special purposes. Private corporations are
almost always formed under these general laws, and their charters
or articles of incorporation should conform perfectly with the par-
ticular statutes authorizing them. The following forms are drawn
so as to have general application, but before making use of any
one of them an examination should be made to see that it conforms
to the requirements of the local statute.

ARTICLES OF INCORPORATION FOR BUSINESS COMPANY.

STATE of ————,

County of——. ' a

We, the undersigned (naming at least three corporators), do by
these presents, pursuant to and in conformity with the act of the
Legislature of the State of ......, passed on the ........ cece
entitled “An act to authorize the formation of. corporations for
manufacturing, mining, mechanical or chemical purposes,” (or
whatever the title of the act may be), and the several acts of the
said Legislature amendatory thereof, associate ourselves together,
and form a body politic and corporate, and do hereby certify:

1. That the corporate name of the said company is (here insert
name in full.)

2. That the objects for which the said corporation is formed are
as follows: (here state them with precision, but in general terms.)

3. That the capital stock of the said corporation shall be ......
dollars, which shall be divided into ...... shares of ...... dollars
each.

4. That the said corporation shall commence on the ...... day
of ......, in the year one thousand eight hundred and ......,
and shall continue in existence for the term of ...... years.

5. That the number of trustees of the said corporation shall be
+eeeee, Whose names are as follows, and who shall manage the
concerns of the said corporation for the first year. (Names.)

6. That the names of the town and county (or, towns and
counties) in which the operations of said company are to be
carried on are (here designate them, and if more than one is
named, add:) and the principal place of business of the said corpo-
ration shall be the ..... of ......, in the County of ...... and
State of ....606

(Signatures. ]
FORMS IN COMMON USE. 413

 

ARTICLES OF ASSOCIATION FOR A LITERARY OR SCIENTIFIC CLUB.

The undersigned, residents of the State of ........, desiring to
become incorporated under Act No. ... of the laws of ..., as
amended, hereby adopt the following Articles of Association:

First—The names of the parties associating in the first instance,
and their residences, are as follows (state names and residences of
incorporators. )

Second—The name of this association 1s the ........ Club,
and the place where its office for the transaction of business is
located, is.......2) ».2++--., and the period for which it is incor-
porated is thirty years.

Third—The object for which this association is organized is the
promotion of the study of political and social science, the collection
and dissemination of knowledge concerning the civil and political
institutions of the State and Nation, and the establishment and
maintenance of a library and reading room .wherein may be col-
lected and kept the current political literature of the times, and the
standard works bearing upon the general subject of social science.

In witness whereof we have hereunto set our hands this ......
day of ....., A.D. 188..

[Signatures and incorporators. ]

CERTIFICATE OF ACKNOWLEDGMENT TO FOREGOING.

STATE OF ————-,

County of . }

On this ...... day of ......, A. D. 188., before me, the sub-
scriber, a Notary Public in and for said County, personally
appeared ......., to me known to be the same persons described
in and who executed the foregoing Articles of Association, and
severally acknowledged the same to be their free act and deed,
and that they executed the same for the intents and purposes
therein named. sos Se SEN owe Se eH6

 

ARTICLES OF ASSOCIATION FOR A RELIGIOUS CORPORATION.

We, the undersigned, two of the elders (or, church wardens) of
the church (or, two of the members of the church, or, of the con-
gregation or, society ) hereafter mentioned, hereby certify that, on
the .......... day of .........., 18.., at a meeting of the male
persons of full age, belonging to the church (or, congregation, or,
society ) for the purpose of incorporating the same, which meeting
was held at .........., in the house where they statedly assemble
for divine worship, and pursuant to notice duly given, upon the
414 MANUAL OF THE LAW.

 

weoeee day of ........, and the ......day of ......, at the
stated meetings of said congregation for public worship by M. N.,
the minister, (or, in the absence of the minister, by M. N., one of
the elders, or, other officer or member according to the statute) of
said church, the undersigned were nominated by a majority of the
members present as returning officers; and that said male members
did.then and there elect, by plurality of voices (naming the trus-
tees, not less than three nor more than nine), as trustees of the said
church, congregation or society; and the said persons did then and
there also determine by the like plurality of voices, that the said
trustees and successors should forever hereafter be called and
known by the name or title of (here designate title).

In witness whereof, we have affixed our hands and seals at
sidis eo elan EIS caee weet . day of ........, 18...
Signed and sealed in [Signatures and seals. ]

the presence of

[Signature of witness. ]

ENGAGEMENT TO TAKE STOCK IN A CORPORATION TO BE FORMED.

The undersigned hereby engage with A. B. & C. D., proprietors
of the ........ Bank, and with each other, that they will take the
number of shares inthe ........ Bank Company proposed to be
formed, set opposite their respective names, and pay for them as
stipulated.

It is understood that the capital of the said company is to be
weeeeeee Collars, in .... shares, of ........ dollars each.

It is also understood and agreed that the representation to us
that the profits of the business, viz.: .... dollars per annum, shall
be sustained by an examination of the books of the present pro-
prietors, or our obligations to take stock are null and void.

[Date.] [Signatures and number of shares.]

TRANSFER OF STOCK,

Know all men that I, A. B., of ........ for value received, do
bargain, sell, assign, and transfer unto C. D., of ...., .... shares
of capital stock, standing in my name, on the books of the .....
company; and I do hereby constitute and appoint the said C. D.
my true and lawful attorney, irrevocable, in my name or otherwise,
but to his own use and benefit, and at his own expense and charges,
to take all lawful ways and means for the recovery and enjoyment
thereof.

Witness my hand and seal the .... day of ...., A. D. 18...

[Signature.]  [Seal.]

Signed, sealed, and delivered in the presence of

[Signature of witness. ]
FORMS IN COMMON USE. 415

 

PROXY.

Know all men, that I, A..... B....., of coseseeey do hereby
appoint C..... D....., of ........, my attorney, for me and in
my stead to vote, as my proxy, at any election of the (designate
the association and the officers to he voted for), according to the
number of votes I would be entitled to cast, if I were then and
there present.

Witness my hand and seal the .... day of ........, 188..

[Signature and seal. ]

Signed, sealed, and delivered in presence of

[Signatures of witnesses. ]

 

Deeds. In the chapter on deeds, page 37, may be found a
pretty full consideration of the general requisites of these instru-
ments. It will be well before making use of the forms to read

that chapter
A BARGAIN AND SALE DEED.

THIs INDENTURE, made this .... day of ...... in the year one
thousand eight hundred and ........, between A. B., of ......,
in the county of ........ and State of ........, farmer (and C.
B. his wife), of the first part, and E. F., of ........ in said
County, merchant, of the second part: Witnesseth, that the said
party (or parties) of the first part, in consideration of the sum of
+eeeeeee dollars, to him (or them) paid by the said party of the
second part, the receipt whereof is hereby acknowledged, has (or
have) granted, bargained, and sold, and by these presents does a
do) grant, bargain, and sell unto the said party of the second part,
and to his heirs and assigns forever, all (here insert description of
premises), together with all and singular the tenements, heredita-
ments, and appurtenances thereunto belonging, or in any wise
appertaining; and the reversion and reversions, remainder and
remainders, rents, issues, and profits thereof; and also all the estate,
right, title, interest (dower and right of dower), property, pos-
session, claim, and demand whatsoever, as well in law as in equity
of the said party (or parties) of the first part, of, in, and to the
above granted premises, and every part and parcel thereof. To
have and to hold all and singular the above named premises,
together with the appurtenances and every part thereof unto the
said party of the second part, his heirs and assigns, forever.

In witness whereof, the said party (or parties) of the first part
has (or have) hereunto set his hand and seal (or their hands and
ai the day and year first above written.

[Signature and seal. ]

Signed, sealed, and delivered in presence of

[Signature of witness. ]
416 MANUAL OF THE LAW.

 

WARRANTY DEED—LONG FORM.

THIS INDENTURE, made this ...... day of ..... in the year of
our Lord one thousand eight hundred and ....., between .....
of the first part, and ..... of the second part. Witnesseth, that the
said part.. of the first part, for and in consideration of the sum of
seeesee» Collars, to ........ in hand paid by the said part.. of
the second part, the receipt whereof is hereby confessed and
acknowledged, ha.. granted, bargained, sold, remised, released,
aliened, and confirmed, and by these presents do .... grant, bar-
gain, sell, remise, release, alien and confirm unto the said part,. of
the second part, ........ heirs and assigns, forever, all th... cer-
tain piece or parcel of land situate and being in the ........ of
eeeeeoee in the County of ........ and State of ........ known
and described as follows, to wit: (insert description of the premises),
together with all and singular the hereditaments and appurtenances
thereunto belonging or in anywise appertaining; and the reversion
and reversions, remainder and remainders, rents, issues, and profits
thereof; and all the estate, right, title, interest, claim, and demand
whatsoever, of the said part... of the first part, either in law or
equity, of, in, and to the above bargained premises, with the heredit-
aments and appurtenances; to have and to hold the said premises
as above described, with the appurtenances, unto the said part...
of the second part, and to ........ heirs and assigns, forever.
And the said part... of the first part, for ....msel........ heirs,
executors, and administrators, do .... covenant, grant, bargain, and
agree, to and with the said part... of the second part, .........
heirs and assigns, that at the time of the ensealing and delivery of
these presents, ............ well seized of the premises above
described as of a good, sure, perfect, absolute and indefeasible
estate of inheritance in the law, in fee simple and that the said
lands, hereditaments, and appurtenances are free from all incum-
brances whatever ............, and that the above bargained
premises in the quiet and peaceable possession of the said part...
of the second part,........ heirs and assigns, against all and
every person or persons lawfully claiming, or to claim, the whole
or any part thereof, ........ will forever warrant and defend.

In witness whereof, the said part... of the first part ha.. here-
unto set ........ hand.. and seal.., the day and year first above
written,

ey

Signed, sealed, and deliv- t Dl Se x fr. 8. ;
ered in presence of

ey
FORMS IN COMMON USE, 417

 

WARRANTY DEED—SHORT FORM.

THIS INDENTURE, made this ........ day of ........ in the
year of our Lord one thousand eight hundred and ............
between ......... of the first part, and ......... of the second
part. Witnesseth, that the said part... of the first part, for and
in consideration of the sum of ........ dollars, to ..... in hand
paid by the said part... of the second part, the receipt whereof is
hereby confessed and acknowledged, do... by these presents
grant, bargain, sell, remise, release, alien, and confirm unto the said
part... of the second part, and to ........... heirs and assigns,
forever, all ........ certain piece ..... or parcel ..... of land,
situate, lying and being inthe ........ of ....... in the County
of ......-. and State of ........., known and described as fol-
lows, to wit: (insert description of premises), together with all
and singular the hereditaments and appurtenances thereunto belong-
ing or in anywise appertaining. To have and to hold the said
premises as described, with the appurtenances, unto the said part..
of the second part, and to ...s.....+. heirs and assigns, forever.
And the said part... oi the first part, for .........8el......00.
heirs, executors, and administrators, do ... covenant, grant, bar-
gain, and agree, to and with the said part... of the second part,
wee... heirs and assigns, that at the time of the ensealing and
delivery of these presents ........... . well seized of the above
granted premises, in fee simple; that they are free from all incum-
brances whatever, ........ and that ........ will, and ........
heirs, executors, and administrators shall warrant and defend the
same against all lawful claims whatsoever (here mention any
claim that the deed is given subject to).

In witness whereof, the said part... of the first part ha.. here-
unto set .... hand.. and seal.. the day and year first above
written.

Hie}

wevernnecerey fF

HEE

in presence of

eee y wenn Sema ewnns

m

Es]
uf
2
ut

, {bs
Sealed and delivered t ‘SGesievieostes » fn
{5

t

FORM OF WARRANTY DEED IN USE IN NEW YORK AND THE MID-
DLE STATES.

THIS INDENTURE, made the ........ day of ........ in the
year one thousand eight hundred and ........, between .......

29
418 MANUAL OF THE LAW,

 

part... of the first part, and ........ of the second part. Wit-
nesseth, that the said part... of the first part, for and in consider-
ation of the sum of .............- , lawful money of the United
‘States, to ........ in hand paid by the said part... of the second
part, at or before the ensealing and delivery of these presents, the
receipt whereof is hereby acknowledged, and the said part... of
the second part, ........ heirs, executors, and administrators, for-
ever, released and discharged from the same, by these presents
ha... granted, bargained, sold, aliened, remised, released, con-
veyed, and confirmed, and by these presents do... grant, bargain,
sell, alien, remise, release, convey, and confirm, unto the said
part... of the second part, and to ...... heirs and assigns, for-
ever, all (insert description of the premises), together with all and
singular the tenements, hereditaments, and appurtenances thereunto
belonging, or in anywise appertaining, and the reversion and rever-
sions, remainder and remainders, rents, issues, and profits thereof;
and also, all the estate, right, title, interest ........... property,
possession, claim, and demand whatsoever, as well in law as in
equity, of the said part... of the first part, of, in, and to the same,
and every part and parcel thereof, with the appurtenances, To
have and to hold the above granted, bargained, and described
premises, with the appurtenances, unto the said part... of the
second part, ........ heirs and assigns, to .......... their own
proper use, benefit, and behoof forever; and the said ...........
for ...... heirs, executors, and administrators, do .... covenant,
grant, and agree to and with the said part... of the second part,
«e+...-.. heirs and assigns, that the said ..........., at the time
of the sealing and delivery of these presents, ........ lawfully
seized in ............ of a good, absolute, and indefeasible estate
of inheritance in fee simple, of, and in all and singular the above
granted and described premises, with the appurtenances .......-
and ha.. good right, full power, and lawful authority, to grant,
bargain, sell, and convey the same, in manner aforesaid; and that
the said part... of the second part, ...... heirs and assigns, shall
and may at all times hereafter, peaceably and quietly have, hold,
use, Occupy, possess, and enjoy the above granted premises, and
every part and parcel thereof, with the appurtenances, without any
let, suit, trouble, molestation, eviction, or disturbance of the said
part... of the first part, ......., heirs or assigns, or of any other
person or persons lawfully claiming or to claim the same. And
that the same now are free, clear, discharged, and unencumbered,
of and from all former and other grants, titles, charges, estates,
judgments, taxes, assessments, and encumbrances of what nature
or kind soever; and also, that the said part... of the first part, and
++ee++e. heirs, and all and every person or persons whomsoever,
lawfully or equitably deriving any estate, right, title, or interest,
of, in, or to the hereinbefore granted premises, by, from, under or
in trust for ........ them, shall and will, at any time or times
FORMS IN COMMON USE. 419

 

hereafter, upon the reasonable request, and at the proper costs and
charges in the law, of the said part... of the second part, ......
heirs and assigns, make, do, and execute, or cause to be made, done
and executed, all and every such further and other lawful and
reasonable acts, conveyances, and assurances in the law, for the
better and more effectually vesting and confirming the premises
hereby granted or so intended to be, in and to the said part... of
the second part, ........ heirs and assigns forever, as by the said
part... of the second part, ........ heirs or assigns, or .......
their counsel learned in the law, shall be reasonably advised or
required; and the said ........... heirs, the above described and
hereby granted and released premises, and every part and parcel
thereof, with the appurtenances, unto the said part... of the sec-
ond part, ........ heirs and assigns, against the said part... of
the first part, and ........ heirs, and against all and every person
and persons whomsoever, lawfully claiming or to claim the same,
shall and will warrant and by these presents forever defend.

In witness whereof, the said part........ hereunto set.....00.
hand... and seal... the day and year first above written,

Sealed and delivered in the presence of

CERTIFICATE OF ACKNOWLEDGMENT OF ABOVE.

STATE OF ....cccceny
sia veue ore suerte “OF ore. ete igi > SSe
County of ..cerseees

On the ......... day of .......... in the year one thousand
eight hundred and ........, before me personally came .......
to be the individual described in, and who executed thé foregoing
instrument, and ....... acknowledged that he executed the same.

A DEED POLL OF WARRANTY, IN USE IN NEW ENGLAND.

Know aLL MEN BY THESE PRESENTS, That I (insert grantor’s
name), of (insert town, County and State), in consideration of
(insert amount paid), to me paid by (insert grantee’s name), of
(give grantee’s residence), the receipt whereof is hereby acknowl-
edged, do hereby give, grant, bargain, sell, and convey unto the
said (grantee) the following described premises, to wit: (insert
accurate and complete description of the property conveyed). To
have and to hold the above granted premises to the said (insert
grantee’s name) his heirs and assigns, to his use and behoof for-
ever. And I, the said (insert grantor’s name), for myself, and for
my heirs, executors, and administrators do covenant with the said
420 MANUAL OF THE LAW.

 

(insert grantee’s name), and with his heirs and assigns, that I am
lawfully seized in fee simple of the aforegranted premises; that the
same are free from all incumbrances (if there be any incumbrance
subject to which the premises are bought, as a mortgage or a lien
or right of way, etc., add the word excepting, and then describe
the incumbrance); that I have good right to sell and convey the
same to the said (insert grantor’s name), and to his heirs and
assigns forever as aforesaid; and that I will, and my heirs, execu-
tors, and administrators shall warrant and defend the same to the
said (insert grantee’s name), and his heirs and assigns forever,
against the lawful claims and demands of all persons.

In witness whereof, I, the said oe grantor’s name) and
(insert his wife’s name), wife of said (grantor) in token of her
release of all right and title of and to dower in the said premises,
have hereunto set our hands and seals this ...... day of ......,

Ber Ds BBB se eececeee coeseeeey [SEAL
Signed, sealed, and delivered eepie dese weesesaae [| SEAL,
in presence of

were ereernecececee

CoMMONWEALTH OF ......, va
County of .ocereee

On this .......... day of .........., A. D. 188., personally
appeared before me, a justice of the peace in and for said County,
the above named ..... eee, to me known as the persons who
executed the above instrument and acknowledged the same to be
their free act and deed before me.

SFustice of the Peace.

QUIT-CLAIM DEED—LONG FORM.

THIS INDENTURE, made the ........ day of ........., in the
year of our Lord one thousand eight hundred and ...... between
+eees. Of the first part, and ....... of the second part, Wit-
nesseth, that the said part... of the first part, for and in consider-
ation of the sum of ........., to ...... in hand paid by the said
part... of the second part, the receipt whereof is hereby confessed
and acknowledged, do... by these presents grant, bargain, sell,
remise, release, and forever quit claim unto the said part... of the
second part and to ...... heirs and assigns, forever (insert
description of property ), together with all and singular the heredit-
aments and appurtenances thereunto belonging, or in any wise
appertaining; to have and to hold the said .......... . to the said
part... of the second part, and to ..... heirs and assigns, to the
sole and only proper use, benefit and behoof of the said part... of
the second part ..... heirs and assigns, forever.
FORMS IN COMMON USE. 421

 

In witness whereof, the said part... of the first part ha.. here-
unto set ..... hand and seal the day and year first above written.
Signed, sealed, and delivered . 8.

in presence of ; te |

a

CERTIFICATE OF ACKNOWLEDGMENT TO FOREGOING.

SPATE OF os ws ss.00y

County of ....4+. hes

On this ........ day of ........, one thousand eight hundred
and ......, before me, ............ in and for said County, per-
sonally came the above named ............, known to me to be
the person who executed the foregoing instrument, and acknowl-
edged the same to be ..... free act and deed.

[Signature and title of acknowledging officer }

———

QUIT-CLAIM DEED WITH WARRANTY AGAINST THE GRANTOR’S
OWN ACTS

This deed is the same in form as the preceding one, except that
it contains the following clause, which should be inserted just
before the attestation:

And the said A. B. for himself, his heirs, executors, and admin-
istrators, does hereby covenant, promise, and agree to and with the
said party of the second part, his heirs and assigns, that he has not
made, done, committed, executed, or suffered any act or acts, thing
or things whatsoever, whereby or by means whereof, the above
mentioned and described premises, or any part or parcel thereof,
now are, or at any time hereafter, shall or may be impeached,
charged, or encumbered, in any manner or way whatsoever.

Where a homestead right is to be released by the wife a para-
graph like the following should be inserted just before the clause
commencing “In witness whereof:”

“ And I (name the wife), wife of the said (name the grantor),
in consideration of one dollar to me paid by the said (name
grantee), the receipt whereof is acknowledged, do hereby release
and assign to the said (name the grantee) and his heirs and assigns
all my right, interest, claim, and estate in and to the premises above
granted, under the homestead laws of this State, or any other
statutory provisions thereof.”

Where it is required that the wife shall acknowledge the deed
separate and apart from her husband, a form of acknowledgment
like the following may be us
422 MANUAL OF THE LAW.

 

STATE OF ......,

County of cro. bss

On this .... day of ....., in the year one thousand eight hun-
dred and ....., before me, the subscriber, a ..... in and for said
County, personally appeared ....., to me known to be the same
person.. described in and who executed the within instrument,
who ..... acknowledged the same to be ..... free act and deed.
And the said ....., ona private examination by me, separate and
apart from ..... said husband, ..... acknowledged that ......
executed the same freely, without any fear of, or compulsion from
any one. a aes eine eine ’

ATTESTATION OF A DEED IN WHICH ERASURES OR INTER-
LINEATIONS APPEAR.

In witness whereof the said party of the first part has hereunto
set his hand and seal the day and year first above written.
Sealed and delivered in the pres- :
ence of [the word “seven” on the [Signature.] [sEAL.]
first page was erased, the words
“be the same more or less” writ-
ten over an erasure on the third
page, and the words “dower and
‘right of dower” cancelled on third
page before execution. ] ;
[Signatures of witnesses. ]

DEED BY A CORPORATION.

This indenture, made this ...... day of ..... . in the year one
thousand eight hundred and ......, between the (insert the legal
title of the corporation), of .... parties of the first part, and E. F.,
of the same place, party of the second part, witnesseth, that the
said parties of the first part, in consideration of the sum of ......
dollars (thence proceeding as in other deeds to the covenants,
each of which will begin thus:) And the said parties of the first
part (or name the corporation), for themselves and their successors,
do covenant (etc., continuing as in other cases).

In witness whereof the said par-
ties of the first part have hereunto
caused their corporate seal to be
affixed and these presents to be (Corporate seal. ]
subscribed by (insert president,
cashier, or officer, as the corpora-

tion may order), J [Signature of officer.]
FORMS IN COMMON USE. 423

 

DEED BY ATTORNEY.

This indenture, made the ..... day of ..... in the year of our
Lord one thousand eight hundred and ......, between A. B., of
...., County of ..... and State of ..... , and C. B., his wife, of
the first part, by E. F., their attorney in fact, specially thereto
constituted by power of attorney, dated the ..... day of ...... ’
18.., and recorded in (reciting the proper office), as by reference
thereto will more fully appear, and E. J., of ...., County of ....
and State of ...., of the second part, witnesseth, etc. (proceed-
ing as in foregoing, and concluding as follows): ,

In witness whereof, the said parties of the first part, by E. F.,
their attorney in fact, have hereunto set their hands and seals the
day and year first above written,

Signed, etc., A. B. 4
C.D. [SsEAL.
By E. F., their attorney.

DEED OF GIFT.

THIS INDENTURE made this ..... day of ....., one thousand
eight hundred and ....., between A. B., of ..... ,in the County
and State of ..... .-. (and C. B. his wife), of the first part, and
E. J. B., of the same place, son of the said A. B., of the second
part: Witnesseth, that the said A. B., for and in consideration of
the natural love and affection which he has unto the said E. J. B.,
by these presents does give, grant, alien, enfeoff, and confirm unto
the said E. J. B., his heirs and assigns, forever, all (here insert
description of the premises): Together with all and singular the
tenements, hereditaments, and appurtenances thereunto belonging,
or in any wise appertaining; and the reversion and reversions,
remainder and remainders, rents, issues, and profits thereof, and all
the estate, right Sach and claim of dower), title, interest, prop-
erty, claim, and demand whatsoever, of the said party (or parties)
of the first part, of, in, and to the said premises, with the appurte-
nances, and every part thereof. To have and to hold all and sin-
gular the above-granted premises, with the appurtenances, unto
the said E. J. B., his heirs and assigns, forever.

In witness whereof the party (or.parties) of the first part has
(or have) hereunto set his hand and seal (or their hands and seals),
the day and year above written.

[Signatures and seals. ]
Signed, sealed, and delivered
in presence of
[Signature of witnesses. ]
424 MANUAL OF THE LAW.

 

TRUST DEED.

THIS INDENTURE made the .... day of ...., in the year one
thousand eight hundred and ...., between A. B., of ....., in the
County of ....., and State of ......, (and C. B. his wife), of the
first part, and C. D., of ......, in the said County, as trustee for
«sees. Of the second part, witnesseth: that the said party (or par-
ties) of the first part, in consideration of the sum of ..... dollars
to him (or them) paid by the said party of the second part, the
receipt whereof is hereby acknowledged, has (or have) granted,
bargained, sold, aliened, remised, released, conveyed, and confirmed,
and by these presents does (or do) grant, bargain, sell, alien,
remise, release, convey, and confirm unto the said party of the
second part, and to his heirs and assigns, forever, all (here insert
description).

To have and to hold all and singular the above-granted premi-
ses, together with the appurtenances and every part thereof, unto
the said party of the second part, his successors and assigns, for-
ever, in fee, upon the trusts, nevertheless, and to and for the uses,
interests, and purposes hereinafter limited, described, and declared
—that is to say, upon trust to receive the issues, rents, and profits
of the said premises, and apply the same to the use of E, F.,~
during the term of his natural life, and, after the death of the said
E. F., to convey the same by deed to S. T., in fee.

In witness whereof the parties to these presents have hereunto
interchangeably set their hands and seals the day and year first
above written.

[Signatures and seals.]
Signed, sealed, and delivered
in presence of
[Signature of witness. ]

—_

DEED OF A RIGHT OF WAY.

THIS INDENTURE made this.... day of ...., in the year woos,
between A. B., of ......, County of ...... and State of ......;
part.. of the first part, and C. D., of ......, party of the second
part: Witnesseth, that the said A. B. for and in consideration of
the sum of .... dollars, lawful money of the United States, unto
him well and truly paid by the said C. D., at and before the
ensealing and delivery hereof, the receipt whereof is hereby
acknowledged, hath granted, bargained, and sold, and does grant,
bargain, and sell unto the said C. D., his heirs and assigns, the free
and uninterrupted use, liberty, and privilege of, and passage in and
along a certain alley or passage, of ten feet in breadth by one hun-
dred feet in depth, extending out and from (describing the direction
FORMS IN COMMON USE 425

 

ef the way). Together with free ingress, egress, and regress to
and for the said C. D., his heirs and assigns, and his and their ten-
ants, under-tenants (if, for a cariage-way, here add, “with carts,
vehicles, carriages, horses, or cattle, as by him or them shall be
necessary and convenient’) at all times and seasons forever there-
after, into, along, upon, and out of the said alley or passage-way,
in common with him, the said A. B., his heirs and assigns, and his
and their tenants or under-tenants.

To have and to hold all and singular the privileges aforesaid to
him the said C. D., his heirs and assigns, to the and their only
proper use and behoof, in common with him, the said C. D., his
heirs and assigns, as aforesaid. (Here add, if desired, “ Subject
nevertheless, to the moiety or equal half part of all necessary
charges and expenses, which shall, from time to time, accrue in
paving, amending, repairing, and cleansing the said alley or pas-
sage-way.”)

In witness whereof I have hereunto set my hand and seal this
.-e. Gay of ...., 18...

Signed, sealed, and delivered A. B.
in presence of
[Signatures of witnesses. ]

EXECUTOR’S, ADMINISTRATOR’S, OR GUARDIAN’S DEED.

Know ati MEN BY THESE PRESENTS, That (insert name of
executor, administrator, or guardian and the name of the estate for
which he acts), pursuant to an order of the Judge of the Court of
Probate for the County of ......... and State of ...........,
held at the probate office in the ......+++++e+eee in said County
and State, on the .......,...... day of ......20.... in the year
of our Lord one thousand eight hundred and ..... ee, authoriz-
ing, empowering, and licensing him to sell at public auction, in
conformity to the statute in such case made and provided, sufficient
of the real estate whereof said (name of deceased or ward) was
seized, for the purpose in said order mentioned, did sell at public
auction, held at ...., inthe .... of ..... in the County of ....
and State aforesaid, pursuant to legal notice, all the estate, right,
title, and interest of said ....,in and to certain real estate and
premises in said order set forth and hereinafter described, to (name
of purchaser), he being the highest bidder therefor, which said
sale was made by an order of said Judge of Probate, on the .....
day of ...., in the year one thousand eight hundred and seventy-
«see, duly confirmed, and..... the said .... directed therein to
execute, acknowledge, and deliver a proper conveyance or con-
veyances of said real estate so sold, to the purchaser thereof,
agreeably to the statute in such case made and provided,
426 MANUAL OF THE LAW.

 

Now know ye, that in pursuance of said several orders, and pro-
ceedings above referred to, and in consideration of the sum of ....
dollars, paid to me by said (name of purchaser), the receipt
whereof I do hereby acknowledge, have sold, and do hereby give,
grant, sell, and convey unto the said (name of purchaser), his heirs
and assigns, forever (insert description of the premises); to have
and to hold the above granted premises, with the appurtenances,
to the said ......, his heirs and assigns, forever. And ..... do
hereby covenant with the said ..... that esis. cc will warrant and
defend the said granted premises, with the appurtenances unto the
said ..... heirs and assigns, forever, against the lawful claims and
demands of all persons claiming by, from or under ........, but
against no other persons.

In testimony whereof, .... have hereunto set .... hand and
seal at ...., in the County of .... and State aforesaid, this .....
day of ...., A. D. one thousand eight hundred and seventy-.....
Signed, sealed, and delivered ' Sewaweaiey [Le Ss

in presence of } eececcces te re
eaecrereesseonccey

CERTIFICATE OF ACKNOWLEDGMENT TO FOREGOING.

STATE OF ......,
County of ..... 69%

On this ..... day of ....., A. D. one thousand eight hundred
and ....., before me,a..... in and for said County, personally
came the above named ...., known to me to be the person who
executed the foregoing instrument, and acknowledged the same to
be .... free act and deed, as executor (guardian or administrator)
of .... as in said instrument described.

[Signature and title of acknowledging officer. ]

Depositions. See affidavits.

Divorce. Divorce is absolute or limited. Absolute divorce is
a total dissolution by law of the marriage relation. Limited
divorce is a legal separation which leaves the parties with none of
the rights of marriage. It grows less frequent as the laws of
divorce grow more liberal. Divorce is granted in all of the States
for adultery, and also for impotency where it existed at the time of
the marriage. The other causes for divorce are not the same in
the several States. Generally willful desertion for more than two
FORMS IN COMMON USE. 427

 

years, habitual and long continued drunkenness, extreme and long
practiced cruelty and the conviction of an infamous crime are made
causes for divorce.

The forms relating to the subject would not be of general use,
and are therefore omitted.

Dower. See pages 16 and 258. Blank forms for use in assign-
ment of dower, etc., can usually be got at the probate offices.

Drafts. See Bills of Exchange and’ Promissory Notes.
Division Fences. See Fences and Fence Viewers.
Easements. See Chapter XI, page 88.

Estrays. The statutes of the States generally provide simple
proceedings for the disposal of straying domestic animals. See
Chapter XIV., page 127. ;

NOTICE TO TOWNSHIP CLERK, OF FINDING A STRAY ANIMAL.

To the Township Clerk of the County of ......

Notice is hereby given, that on or about the .... day of .....,
A. D. ...., one black horse, of the age of six years or thereabouts,
and marked with a white star in the forehead, strayed upon my
inclosed land in the said township of ...., and now remains there-
upon, and that I reside in the said township of .....

Dated this .... day of ...., A. D...... A. B.

NOTICE OF SALE WHERE ESTRAY IS NOT REDEEMED.

By virtue of the statute in such case made and provided, I shall
expose to sale at public auction, to the highest bidder, on the ....
day of .... instant (ornext), at.... o’clock in the ....noon, at the
house of R. F., in ...... , one chestnut horse of the age of seven
years, or thereabouts, and marked with a star in his forehead, the
same being a stray found upon my inclosed land in the town of
.».., and remaining unredeemed according to law.

Dated the .... day of ...., 18.. A. B.

Fences and Fence Viewers. See Chapter XVI., page 142.
This matter is regulated entirely by statute. The following forms
are adapted to the statutes of Michigan, but will be found appli-
cable by slight, modification te those of many other States:
428 MANUAL OF THE LAW.

 

COMPLAINT TO FENCE VIEWERS OF NEGLECT OR REFUSAL TO
REPAIR OR REBUILD PARTITION FENCE.

To B. O. and A. S., two of the Fence Viewers of the Township
\ Of wine eaae’s

The undersigned, A. B., of said township, makes complaint and
says that this complainant and C. D., of the same township, are
occupants of adjoining lands therein, and that a partition fence has
been constructed on the line between said lands, which are inclosed
by the occupants thereof respectively, and that of right the said C.
D. ought to maintain that portion of said partition fence on said
line described as follows, to wit: (describing the same), that such
portion of said fence has become decayed, broken down and out of
repair, and ought to be rebuilt or repaired by the said C. C., but
that he, the said C, D., hath neglected and still doth neglect to
repair or rebuild the same, whereby this complainant is aggrieved,
and he therefore prays that you, the said fence viewers, will pro-
ceed to examine and determine the same, after due notice to the
said C. D., as required by law.

Dated this .... day of ...., A. D. wc 00s A. B.

DETERMINATION OF FENCE VIEWERS ON COMPLAINT,

WuereEas, Complaint has been made to the undersigned, two
of the fence viewers of the township of ...., inthe county of....,
by A. B., of said township, setting forth that he, the said com-
plainant, and C. D., of the same township, are occupants of
adjoining lands therein, and that a partition fence has been con-
structed on the line between said lands, which are inclosed by the
occupants thereof respectively, and that of right the said C. D.
ought to maintain that portion of said partition fence on said line
described as follows, to wit: (describing it as in the complaint),
and that such portion of said fence has become decayed, broken
down and out of repair, and ought to be rebuilt or repaired by the
said C. D., but that the said C. D. hath neglected, and still doth
neglect to repair or rebuild the same, whereby he, the said A. B.,
is aggrieved, and praying that we, the said fence viewers, would
proceed to examine and determine the same, after due notice to the
said C. D., as required by law; and we having thereupon given
notice to both of said parties that we would proceed to examine
the same on the .... day of ...., at nine o’clock in the forenoon;
and, whereas, on the day and year last aforesaid we were attended
by the said A. B. and C. D., (or as the fact may be), and did pro-
ceed to examine that portion of the said partition fence hereinbefore
described, and found the same to be decayed, broken down and out
of repair: now. therefore, we do determine accordingly, and that
FORMS IN COMMON USE. 429

 

’

the same ought to be rebuilt or repaired, and we do hereby direct
the said C. D. to rebuild or repair the same within ....,days from
the date thereof.
In testimony whereof, we have hereto subscribed our names,
this .... day of ....,A.D......
A. S.,

B. O. \ Fence Viewers.

CERTIFICATE OF VALUE OF REBUILDING OR REPAIRING PAR-
TITION FENCE.

We, the undersigned, two of the fence viewers of the township
of ...., in the county of ...., having heretofore, on the complaint
of A, B., examined that portion of the partition fence between the
lands occupied by the said A. B. and C. D., respectively, in said
township, and having determined the same to be out of repair, and
to require repairing or rebuilding, and having certified the same to
the said C. D., on the .... day of ...., and directed him to repair
or rebuild the same within .... days from that date; and he, the
said C. D., having neglected so to do, and the said A. B. having
since the expiration of said last mentioned time rebuilt (or
“ repaired”) the same, we do, upon inspection thereof, adjudge the
said fence so rebuilt (or “repaired”) as aforesaid, to be good and
sufficient, and we hereby certify that we have ascertained the
value of such repairing (or “rebuilding”) by the said A. B., to
be the sum of .... dollars, and that the fees for our services in the
premises amount to .... dollars,

Given under our hands this .... day of ...., in the year .....

: = 5. \ sence Viewers.

ASSIGNMENT BY FENCE VIEWERS OF SHARES OF DIVISION FENCE
TO BE ERECTED OR REPAIRED BY OCCUPANTS.

A. B. and C. D., being the occupants of certain adjoining lands
in the township of ...., in the county of ...., and disagreeing
concerning the respective portions of a division fence to be made
(or “kept in repair”) by them respectively, and we, the under-
signed, two of the fence viewers of the said township, having been
applied to by them for that purpose, fs “having been applied to
by the said A. B. for that purpose, and having given due notice to
the said A, B. and C. D. of our present meeting for the determina-
tion coum! do: hereby certify that we have examined the
premises, and heard the allegations of the said parties, (*) and after
due deliberation thereon have determined, and do hereby deter-
430 MANUAL OF THE LAW.

 

mine, that the said division fence be built as follows, to wit: (insert
description), and that one-half of said fence, on the east end of said
division line is the proper portion thereof to be built (or “to be
repaired and kept in repair”) by the said A. B., and that the remain-
der of said fence is the proper proportion thereof to be built (or
“repaired and kept in repair”) by the said C. D. And we do
hereby direct that each of the said parties build (or “ repair”) his
proportion of said fence within .... months from this date. And
we further certify that our fees for our services herein amount to
the sum of .... dollars.

Given under our hands, this .... d f disceny AAD e sie niete

ay o
a = | Fence Viewers.

APPRAISEMENT OF FENCE WHEN ONE OCCUPANT HAS BUILT
MORE THAN HIS SHARE,

(As in preceding form to the (*), and then as follows):

And it appearing to us that the said C. D. had, before any com-
plaint made to us, voluntarily erected (or “become the proprietor
of”) the whole of the said division fence (or “ more than his just
share of said division fence”), we do hereby certify that we have
ascertained and determined the value of said division fence so built
by said C. D., over and above his just share thereof, to be the sum
of .... dollars, which sum is to be paid by the said A. B. to him,
the said C. D., on account thereof.

Given under our hands, this .... day of ...., A. D......

= s \ Fence Viewers.

—_——

NOTICE TO PARTIES OF MEETING OF FENCE VIEWERS TO DETER:
MINE CONTROVERSY.

To A. B.and C. D.:

The said A. B., having made complaint to the undersigned, two
of the fence viewers of the township of ......., in the county of
saein , that the said C. D. has neglected and refused to rebuild or
repair his proportion of the division fence between the lands occu-
pied by you respectively, which he alleges to be out of repair, and
having required us to view the same, and determine the matter of
said complaint; now, therefore, you are hereby notified that we
will meet for that purpose at the place where the said fence is sit-
uated, on the .... day of ...... next (or “instant”), at ......
o’clock in the forenoon.

Dated this .... day of ...., A.D. .....
= \ Fence Viewers.
FORMS IN COMMON USE. 431

 

DETERMINATION OF FENCE VIEWERS WHERE LAND IS DIVIDED
BY WATER.

Wuereas, A. B., of the township of ......, in the County of
......, hath applied to the undersigned, two of the fence viewers
of said township, to view the brook (or “river,” or “pond,” or
“ creek,” as the case may be,) which divides the land of the said
A. B. from the land of the said C. D., and determine whether the
same answers the purpose of a sufficient fence, and if not, and if it
should be impracticable, without unreasonable expense, to build a
fence on the true boundary line between said parties, then to deter-
mine how, or on which side thereof such fence shall be set up and
maintained, or whether partly on one side and partly on the other;
and whereas, after due notice to the said A. B., and C. D., we have,
on this .... day of ...., A. D. ....., proceeded to examine the
premises, and have found and determined that the said brook (or
“river,” etc.) does not answer the purpose of a sufficient fence,
and that it is impracticable, without unreasonable expense, to build
a fence on the true boundary line between the lands of the said
parties, we do therefore determine that the said division fence be
built (state how, or on which side, or whether partly on one side
and partly on the other, with sufficient particularity so that its loca-
tion can be easily ascertained). And we do hereby certify that
our fees for our services herein amount to .... dollars.

Given under our hands this .... day of ...., A.D. .....

oO \ ence Viewers.

DIVISION OF LINE BETWEEN LANDS OCCUPIED IN COMMON,

[In case of a disagreement between parties owning lands in
severalty, which have been occupied in common, the proportion of
partition fence to be built by each may be determined by fence
viewers, and their determination will be substantially as in the
form of assignment of shares of division fences generally. ]

DETERMINATION OF VALUE OF ONE-HALF OF PARTITION FENCE
WHEN UNINCLOSED LANDS HAVE BEEN INCLOSED.

Wuereas, A. B. and C. D., being the owners of certain adjoin-
ing lands in the township of ......., in the county of ......, and
the said A. B. having, on or about the .... day of ....., A. D.
..«., erected a division fence between the land belonging to him
and that of the said C. D., who allowed his own lands to lie open;
and, whereas, the said C. D. has recently inclosed the said land
432 MANUAL OF THE LAW.

 

belonging to him; and a disagreement having arisen between
the said parties as to the just proportion of the value of said division
fence to be paid by the said C. D., and we, the undersigned, two
of the fence viewers of said township, having been applied to for
that purpose; having made due inquiry into the facts and circum-
stances, and examined the premises, have determined, and do hereby
determine, that the following is a correct description of the fence
built by the said A. B., as aforesaid, to wit: (describe the fence);
that the value of the said fence is the sum of ($60), and that the
just proportion of the said value to be paid by the said C. D. to the
said A. B. is the sum of ($30). And we hereby certify that our
fees for our services herein amount to .... dollars.
Given under our hands, this .... day of ...., A. D......

a a \ fence Viewers.

?

AGREEMENT BETWEEN OWNERS OF ADJOINING LANDS TO DIVIDE
AND MAINTAIN A PARTITION FENCE.

THIS AGREEMENT, made this .... day of ...., A. D. 18..,
between A. B., of the township of ...., in the county of .....,
and State of Michigan, of the one part, and C. D., of the same
township, of the other part, witnesseth, that whereas, the said A.
B. has heretofore erected a fence on the division line between his
lands and the lands of said C. D., in said township, which said
fence commences at (describe the line of fence), and whereas, after
the erection of said fence, the said C. D. erected a fence on the
east side of said division line, so that .... rods of said fence, com-
mencing at, etc. (describe the portion of fence) has become and
now is a partition fence between the respective fields of the said
A. B, and C. D.; and whereas, the said C. D. has paid to said A,
B. .... dollars, being in full for one-half of the value of said ....
rods of fence, it is therefore agreed, in consideration of the premi-
ses between the said parties, that the .... rods of fence on the
north part of said .... rods, being the north half thereof, shall be
well and sufficiently maintained and kept in repair by the said A.
B., and the remainder of said .... rods shall be kept in like repair
by the said C. D.

In witness whereof, the said parties have hereunto set their
hands and seals the day and year first above written.

In presence of A.B, [Ls.

E. F, C. D.,, he =|
FORMS IN COMMON USE. 433

 

NOTICE OF INTENTION NOT TO IMPROVE LANDS ADJOINING
PARTITION FENCE.
ToC. D.:

You are hereby notified that I have determined not to improve
any part of my lands adjoining the partition fence between our
adjoining lands in the township of ..... , in the County of ..... ‘
which said fence has been divided by two of the fence viewers of
the said township (or “by agreement in writing between us”).

Dated this .... day of ...., A.D. .....

Yours, etc., A. B.

é
4

Foreclosure. Mortgages are foreclosed either by a proceeding
in the Court of Chancery, or by advertisement under the pro-
visions of the local statute where the mortgage contains a power
of sale. See Chapter VI., page 65. The following form of
advertisement will be found adaptable to the statutes of many of

the States:
MORTGAGE SALE.

Whereas, default having been made in the conditions of a cer-
tain mortgage made and executed on the thirtieth day of Novem-
ber, A. D. 18747, by Frederick Klatte and Margaretta Klatte, his
wife, of Wayne County, Michigan, to Collins B. Hubbard, of
same County and State, which mortgage was recorded in the office
of the Register of Deeds for Wayne County, Michigan, on
December 24th, 1877, in Liber 136 of Mortgages, on page 303.
And whereas, the amount claimed to be due and unpaid on said
mortgage at the date of this notice is the sum of two thousand one
hundred and eight. dollars and thirty-six cents ($2,108.36) princi-
pal and interest, and an attorney’s fee of $50, as provided in said
mortgage. And whereas, no suit or proceeding at law or in
equity has been instituted to recover the debt secured by said
mortgage, or any part thereof;

Now, therefore, notice is hereby given that by virtue of the
power of sale contained in said mortgage, and in pursuance of the
statute in such case made and provided, the said mortgage will be
foreclosed by a sale of the premises therein described, at public
auction to the highest bidder, at the easterly front door of the City
Hall, of the city of Detroit (that being the building in which the
Circuit Court for the County of Wayne is held), on the twenty-
seventh day of August, 1884, at 12 o’clock noon. Said premises
are described as follows. All that parcel of land situated in the
township of Greenfield, Wayne County, Michigan, known. as the

30
434 MANUAL OF THE LAW.

 

east half of the southwest quarter of section five (5) in town one
‘1), south of range eleven (11) east, containing eighty (80) acres
more or less.

COLLINS B. HUBBARD,
HENRY A. HAIGH, Morigagee.
Attorney for Morigagee.

Detroit, May 27, 1884.

Guaranty. A guaranty is an undertaking to answer for
another’s liability, and is collateral thereto, or, in other words, it is
a contract by which one person is bound to another for the fulfill-
ment of a promise or engagement of a third party. It differs
from a warranty, which is given in reference to the title, quality,
or quantity of a thing sold. No special words are necessary to
constitute a guaranty. If the party clearly shows that it is his
intention to guaranty, it is sufficient.

In order that the guarantor may be held, the guaranty should be
in writing, signed by him. Ifthe guarantor pays his principal’s
debt he is entitled to all the securities of the creditor.

The conditions of the guaranty must be strictly followed, other-
wise the guarantor will not be held.

The guaranty must be founded on a consideration, otherwise it
is of no force.

It is a sufficient consideration if the party for whom the guaranty
is given derives a benefit, or the party to whom it is given suffers
an injury, because of his acting on the faith of the guaranty. No
consideration need pass from the party receiving the guaranty to
the guarantor, The agreement of both parties is necessary to
make a guaranty binding on the guarantor, The guarantor can
be held only for the amount agreed upon, or for the time men-
tioned in the guaranty.

If the principal fails to pay the debt, the guarantor should be
notified. A guaranty is always revocable until it has been acted
upon.

é GUARANTY OF PAYMENT OF NOTE.

For value received, I hereby guarantee the payment of the
within note,

[Date.] [Signature.]
FORMS IN COMMON USE. 435

 

GUARANTY OF PAYMENT OF BOND,

In consideration of the sum of one dollar to me in hand paid by
C. D.,-I hereby guarantee the payment of the foregoing bond.
Witness my hand (and seal), the .... day of ...., 18..
[ Signature, with or without seal.]

GUARANTY OF RENT TO BE ATTACHED TO A LEASE,

In consideration of the letting of the premises above mentioned
to the above named A. B., and of the sum of one dollar to me paid
by the said party of the first part, I do hereby covenant and agree,
to and with the party of the first part above named, and with his
legal representatives, that if default shall at any time be made by
the said A. B. in the payment of the rent and performance of the
covenants above contained on his part to be paid and performed,
that I will well and truly pay the said rent, or any arrears thereof
that may remain due unto the said party of the first part, and also
all damages that may arise in consequence of the non-performance
of said covenants, or either of them, without requiring notice of
any such default from the said party of the first part.

Witness my hand and seal this .... day of ...., in the year of
our Lord one thousand eight hundred and .....

[ Name of witness. ] (Signature. ]

—_—_—

GUARANTY OF COLLECTIBILITY, ETC.

For value received, I hereby guarantee that the within ..... is
good (or, collectible). [Signature. }

4

Highways. See Chapter XIII, page 112. The forms relat-
ing to highways are for use mainly by highway officials, and are
not therefore of service to the general reader. Some will be
found under the title “ Commissioner of Highways,” page 411.
The following will show the general style of these forms:

RELEASE OF DAMAGES BY OWNER OF LAND.

For and in consideration of one dollar to me paid, and hereby
acknowledged, I, M. A., of the township of ...., Michigan, do
hereby consent that a highway, running as follows: (here describe
the route) may pass over the following described lands and
premises owned by me; (describe the lands, etc.) And I do
436 MANUAL OF THE LAW.

 

hereby release to said township of ...., all claim to damages by
reason of said highway running through my land and premises as
aforesaid.
Witness my hand and seal, this .... day of ...., A. D. 18..
M.A. [1L.s.]
cane is usually to be filed in the office of the township clerk,
and should be recorded by him).

NOTICE TO PERSON IN FAULT TO REMOVE BUILDING IN PROCESS
OF MOVING.
To A. B.:

Srr—You are hereby notified and required to remove the build-
ing, now in process of moving, from the highway, which is now
obstructed thereby, to wit: (describing the highway) within two
days after service of this notice, and in default thereof, you will be
liable to a penalty of five dollars per day for each and every day
thereafter that said building shall remain unremoved.

Dated this .... day of ...., A. D......

Ries coves
Commissioner of Highways of the Township of «.00.

NOTICE TO TOLL ROAD COMPANY TO REPAIR ROAD.

To the ....0. Company:

You are hereby notified that a portion of your plank road (or
‘“‘ gravel road,” or, as the case may be), has become defective and
out of repair, to wit: that portion thereof (describing it), and that
you are required to repair the same within thirty days from the
receipt of this notice, and that in default thereof you will be liable
to a penalty of fifty dollars.

Dated this .... day of ...., A. D. .....

Reveoe Discwey
Commissioner of Highways of the Township of...

—

NOTICE BY OVERSEER TO OWNER OR POSSESSOR OF LAND, TO
CAUSE CANADA THISTLES TO BE CUT.
To O. P.:

You are hereby notified that Canada thistles are now growing
and in danger of going to seed on the land owned (or “ possessed ”
er “ occupied”) by you in the township of ...., that is to say, on
the .... (describing the place with sufficient. certainty), and you
FORMS IN COMMON USE. 437

 

are hereby required to cause the same to be cut down within five.
days from the service on you of this notice.
Dated this .... day of ...., A. D......
A... Brseey
Overseer of Highways of District No. ...0

OVERSEER’S LIST OF PERSONS LIABLE TO WORK ON THE
HIGHWAYS.

CouNTY OF .....4,
Township of .s004 a

I, G. H., overseer of highways for road district number ......,
of the said township, do hereby certify that the following is a true
and correct list of all the inhabitants who are liable to work on
highways in said road district number ...., viz.:

G. M., H. C., W. T. Y.,
H.S., j. B., A. E.
Dated the .... day of ....., A. D......
G H

Overseer of Highways.

Horses. See pages 219 and 232. The only blank form likely
to be needed in connection with horses is that for a warranty of
soundness, or other warranty. The warranty may be readily
included in the receipt for the purchase price, as follows:

RECEIPT WITH WARRANTY.

New York, Nov. 10, 1884.

Received of William Wilson two hundred and fifty dollars for
gray mare Jennie, seven years old, and warranted sound, kind, and

true in all harness, and free from vices.
(Signed), J. B.

RECEIPT WITH QUALIFIED WARRANTY.

‘ New York, Nov. 10, 1884.
Received of John Williams one hundred and twenty-five dollars
for bay mare, nine years old, and warranted sound in every way,

except a quarter-crack in one foot.
(Signed), A. B.
438 MANUAL OF THE LAW.

 

ANOTHER.
New York, Nov. 12, 1884.

Received of John Jones seventy-five dollars for roan horse Dick,
twelve years old. Said horse has recently recovered from an
attack of Pink Eye, and I warrant him for one month against a
return of the disease, and also warrant him kind and true in all
harness.

; (Signed), J. B.

4

Leases. See Chapter on Landlord and tenant, page 244,

LEASE OF A FARM FOR A TERM OF YEARS.

THIS INDENTURE, made the .... day of ....,in the year of
our Lord one thousand eight hundred and ....., between .....,
of ...., County of ..... and State of ....., of the one part, and
.ese, Of the same place, of the other part, witnesseth: that the said
«+ «s.ee, for and in consideration of the yearly rent and covenants
hereinafter mentioned and reserved, on the part and behalf of the
said ...., his heirs, executors, and administrators, to be paid, kept
and performed, hath demised, set, and to farm let, and by these
presents doth demise, set, set, and to farm let, unto the said .....,
his heirs and assigns, all that certain messuage or tenement, tract,
piece or parcel of land, situate in .... aforesaid, adjoining lands
of (naming the owners of the adjoining tracts), and now in the
tenure and occupancy of ........, (or, as the case is), containing
-.+se. acres, be the same more or less, (or, if preferred, describe
the premises by metes and bounds as in a deed), together with all
and singular the buildings, improvements, and other the premises
hereby demised, with the appurtenances. To have and to hold
the same unto the said ....., his heirs and assigns from the .....
day of ...... ensuing the date hereof, for and during the term of
+++. years, thence next ensuing, and fully to be completed and
ended; the said ...... yielding and paying for the same unto the
said ....., his heirs and assigns, the yearly rent or sum of .....
dollars, on the ...... day of ...., in each and every year during
the term aforesaid, the first payment of which said yearly rent or
sum of ..... is to be made on the first day of ....., A. D. 18...
(If the rent is payable in produce, after the words “ yielding and
paying,” proceed as follows: “thereout unto the said ......, his
heirs and assigns, for the yearly rent as follows: one-half of all the
winter grain, one-third of all the summer grain, raised and grow-
ing upon the premises, etc.,” following the agreement.) And, at
the expiration of the said term, he, the said ......., his heirs and
FORMS IN COMMON USE. 439

 

assigns, shall and will quietly and peaceably surrender and yield
ap the said demised premises, with the appurtenances, unto the
said ...., his heirs and assigns, in as good order and repair as the
same now are, reasonable wear, tear, and casualties which may
happen by fire or otherwise only excepted.

In witness whereof, the said parties have hereunto set their
hands ann seals, the day and year aforesaid.

a

Signed, sealed, and delivered pete ered EN {t. s. }
, in presence of ~~
as

Selden see este esa ee arey BG care haa {us}
si isiestie Sialere Ways ere Mee alates Sa

LEASE WITH CHATTEL MORTGAGE SECURITY.
THIS INDENTURE, made this ..... day of ..... , A.D. 18...,
between .... of .... of the first part, and ..... of ..... of the

second part, witnesseth as follows, to wit: The party of the first
part does hereby demise and let unto the party of the second part,
the premises known and described as follows (insert description),
together with all the buildings and appurtenances thereunto belong-
ing, for and during the term of ... years, commencing on the ...
day of ...., A. D. 18..., and ending on the .... day of ....,A.
D. 18,..3; the party of the second part yielding and paying there-
for the yearly rent of ...., dollars, as hereinafter specified.

And the party of the second part does hereby covenant and
agree to and with the party of the first part to pay the said rent
in the manner and at the times following to wit: (State the times
of payment as agreed upon.) And further, to deliver up the said
land, buildings, and appurtenances at the end of the said term,
peaceably, and in as good condition as at present, reasonable wear
and damage by the elements excepted.

And further, that he will not sublet the said land, or any part
thereof, nor assign the lease thereof, without the consent in writ-
ing of the party of the first part.

And it is mutually agreed by the parties hereto, that in case the,
party of the second part shall make default in any of the forego-
ing covenants, then the party of the first part may re-enter the
said land and take possession of the same with its buildings and
appurtenances. And the party of the second part, in considera-
tion of the premises and of one dollar to him in hand paid by the
party of the first part, has granted, bargained, and sold, and by
these presents does, grant, bargain, and sell unto the party of the
first part, the following goods and chattels, to wit: (describe the
chattels to be mortgaged,) which said goods and chattels are now
in the possession of the party of the second part, at (state where).
440 MANUAL OF THE LAW.

 

Provided however, That-if the party of the second part shall well
and truly perform and fulfil all and singular the covenants herein-
before contained on his part to pay moneys, either for rent, taxes,
repairs, improvements, or for any other purpose or account what-
soever, then this conveyance be void. But in case he shall fail to
perform the said covenants, or any of them, then the said convey-
ance shall be and remain in full force and virtue; and the party of
the first part, his agents, attorneys, executors, administrators, and
assigns, may, at any time after such default, and either before or
after the determination of the foregoing lease, enter into any place
where the said goods and chattels may be located, and seize the
same, and sell and dispose of them, or any of them at public
vendue, giving six days previous notice of such sale, by written
or printed notices posted at three or more public places in the said
township, and out of the proceeds pay and retain the charges of
such seizure and sale, and all sums of money due and owing by
virtue of the said covenants, if so much there shall be, rendering
the surplus, if any, to the party of the second part.

In witness whereof the said parties have hereunto set their hands
and seals, the day and year first above written.

me

8.

e

ad

m
7)

ot

In presence of

one mam eewmasy

a
. Se

rn

{es}
ee)
{ee}

LEASE—SHORT.

Ir 18 HEREBY AGREED, between .... -» party of the first part,
and ...., party of the second part, as follows: "The said party of
the first part, in consideration of the rents and covenants herein
specified, does hereby let or lease to the said party of the second part,
the following described premises (describe them), for the term of
- +++, from and after the .... day of ...., 18, +) on the terms and
conditions hereinafter mentioned, to be occupied for (state pur-
pose), and in no case to be used for any business deemed extra
hazardous on account of fire.

Provided, That in case any rent shall be due and unpaid, or if
default shall be made in any of the covenants herein contained
then it shall be lawful for the said party of the first party, his cer:
tain attorney, heirs, representatives, and assigns, to re-enter into,

<
FORMS IN COMMON USE. 44!

 

repossess the said premises, and the said party of the second part,
and each and every other occupant to remove and put out.

And the said party of the second part does hereby hire the said
premises for the term of .... as above mentioned, and does cove-
nant and promise to pay to the said party of the first part, his
representatives and assigns, the annual rent of .... dollars, in....
installments, to wit: (state times of payment), and that he will not
assign nor transfer this lease, or sub-let said premises, or any part
thereof, without the written assent of said party of the first part.

And also, that he will at his own expense, during the continu-
ance of this lease, keep the said premises and every part thereof in
as good repair, and at the expiration of the term, yield and deliver
up the same in like condition as when taken, reasonable use and
wear thereof and damage by the elements excepted.

And the’said party of the first part does covenant that the said
party of the second part, on paying the aforesaid installments and
performing all the covenants aforesaid, shall and may peacefully
and quietly have, hold, and enjoy the said demised premises for
the term aforesaid.

Witness our hands and seals this .... day of ...., 18...

seeeeviccsceey [SHALL
teavestsseeve [SEAL

AGREEMENT OF SURETY FOR RENT.

In consideration of the letting of the premises in the foregoing
instrument described, and for the sum of one dollar, to me paid, I
do hereby become surety for the punctual payment of the rent and
performance of the covenants in said instrument mentioned, to be
paid and performed by the second parties therein named; and if
any default shall at any time be made therein I do hereby promise
and agree to pay unto the party of the first part named in said
instrument, the said rent and arrears thereof that may be due, and
fully satisfy the condition of said instrument, and pay all damages
that may occur by reason of the non-fulfillment thereof, without
requiring notice or proof of the demand being made.

Witness ... hand ... and seal ... this... day of ...., 18...

[Signature of surety and seal.]

——

Letter of Credit. A letter of credit is a letter (usually
unsealed) from a person, generally a banker, addressed to his cor-
respondent in another country, requesting him to extend to the
bearer credit for a certain sum of money, as the following form
will illustrate:
442 MANUAL OF THE LAW.

 

Derroit, Mich., Sept. 25, 1885.
Messrs. Morton, Rose & Co., London:

GENTLEMEN—We take pleasure in introducing to you Mr.
Israel T. Cowles, who purposes visiting England and France, and
desires us to open a credit with you for him for one thousand
pounds sterling. You will please honor his drafts to an amount
not exceeding in the aggregate the above named sum, and charge
the same to us, with advice.

The signature of Mr. Cowles accompanies this.

Very respectfully your obedient servants,
Signature of Case & CARPENTER.
IsraEL T. CowLzs,

 

Marriage. Marriage in the United States is a civil contract,
which may be entered into by a simple declaration of the contract-
ing parties, made in the presence of one or more witnesses, that
they, the said parties, do respectfully contract to be man and wife.

No particular form of ceremony is requisite, nor is it imperative
that it should be performed by a particular person; yet, from long
usage, and from a consciousness of the vast importance of the con-
tract to the parties thereto, the ceremony is, almost universally,
performed by, or in the presence of, a clergyman or magistrate.

As to the proper parties to enter into this contract, it is requisite:
1st, that they be willing to contract ; 2d, that they be of sound
mind, and have arrived at the age which the law considers as enti-
tling them to join in such contract ; 3d, that neither of the parties
is married already to another, who is living, and from whom such
party has not obtained a divorce from the bonds of matrimony; and
4th, that the parties are not related by consanguinity or affinity
within the degrees prohibited by the laws of the State in which
the marriage is consummated.

CERTIFICATE OF MARRIAGE BY A MAGISTRATE.

This is to certify that on the ..... day of ....., in the year of
our Lord one thousand eight hundred and ..., before me, the sub-
scriber, one of the Justices of the Peace within and for the county
of ....,...., of the town of ...., in said county, merchant, and
+s+ee+, Of the same place, were joined in marriage; ...... each
taking the other for husband and wife, according to law.

In witness whereof, I have hereunto set my hand and seal, at

- . *foresaid, the day and year above written.
te ececeeeeeeey [SEAL]
Fustice of the Peace.
FORMS IN COMMON USE. 443

 

BY A CLERGYMAN.

This is to certify, that on the ..... day of ....., in the year of
our Lord one thousand eight hundred and .. sh) Swen OF eines dag
County of ...., and State of ....,and......, of the same place,
were by me united in the bonds of marriage, at ...... aforesaid,
according to the ordinance of God and the laws of the State of

Given at ...... aforesaid, the .... day of ...., A. D. 18...

eee eee reser e sees ey

Minister of the Gospel.

c

Mortgages. See chapter on mortgages, pages 54-66.

SHORT FORM OF MORTGAGE.

THIS INDENTURE, made the .... day of ..... in the year one
thousand eight hundred and ...., between A. B., of ...., in the
County of .... and State of ...., of the first part, and C. D., of
+++, in said County, of the second part, witnesseth: That the
said party of the first part, for and in consideration of the sum of
.... dollars, grants, bargains, sells, and confirms unto the said
party of the second part, and to his heirs and assigns, all (here
insert description), together with all and singular the heredita-
ments and appurtenances thereunto belonging or in anywise
appertaining. This conveyance is intended as a mortgage, to
secure the payment of the sum of .... dollars, in (here state terms
of payment), according to the condition of a certain bond, dated
this day, and executed by the said party of the first part tothe said
party of the second part; and these presents shall be void if such
payment be made. But in case default shall be made in the pay-
ment of the principal or interest, as above provided, then the party
of the second part, his executors, administrators, and assigns are
hereby empowered to sell the premises above described, with all
and every of the appurtenances, or any part thereof, in the manner
prescribed by law, and out of the money arising from such sale, to
retain the said principal and interest, together with the costs and
charges of making such sale; and the overplus, if any there be,
shall be paid by the party making such sale, on demand, to the
party of the first part, his heirs or assigns.

In witness whereof, the said party (or parties) of the first part
has (or have) hereunto set his hand and seal (or their hands and
seal, the day and year first above written.

Signature and seal. ]
Signed, sealed, and delivered in the presence of
[Signature of witness. ]
444 MANUAL OF THE LAW.

 

LONG FORM OF MORTGAGE,

THIS INDENTURE, made this ..... day of ..... in the year of
our Lord one thousand eight hundred and eighty-......, between
A. B., of ...., party of the first part, and C. D., of ...., party of
the second part, witnesseth: That the said party of the first part,
for and in consideration of the sum of .... dollars, to....in hand
paid by the said party of the second part, the receipt whereof is
hereby confessed and acknowledged, ha... granted, bargained,
sold, remised, released, enfeoffed, and confirmed, and by these
presents do .... grant, bargain, sell, remise, release, enfeoff, and
confirm unto the said party of the second part, and to ..... heirs
and assigns forever, all .... certain piece or parcel of land, situate
and being in the .... of ...., in the county of .... and State of
+++eees, known and described as (insert description of premises),
together with the hereditaments and appurtenances thereunto
belonging or in anywise appertaining; to have and to hold the
above bargained premises unto the said party of the second part,
and to his heirs and assigns, to the sole and only proper use,
benefit and behoof of the said party of the second part, his heirs
and assigns forever:

Provided, always, and these presents are upon the express con-
dition, that if the said party of the first shall and do well and truly
pay or cause to be paid to the said party of the second part, the
sum of (state the amount and times of payment of principal and
interest), according toa certain promissory note (or bond) bearing
even date herewith, executed by ... to thesaid party of the second
part, as collateral security, then these presents and said note (or
bond) shall cease, and shall be null and void. But in case of non-
payment of the said sum of ...., or of the interest thereof, or any
part of said principal or interest, at the time, in the manner, and at
the place above limited and specified for the payment thereof,
then, and in such case, it shall and may be lawful for the said party
of the second part, his heirs, executors, administrators, or assigns,
and the said party of the first part does hereby empower and
authorize the said party of the second part, his heirs, executors,
administrators, or assigns, to grant, bargain, sell, release, and con-
vey the said premises, with the appurtenances at public auction or
vendue, and on such sale to make and execute to the purchaser or
purchasers, his, her, or their heirs and assigns forever, good,
ample, and sufficient deed or deeds of conveyance in law, pursuant
to the statute in such case made and provided, rendering the sur-
plus moneys (if any there should be), to the said party of the first
part, his heirs, executors, or administrators, after deducting the
amount then due, the costs and charges of such vendue and sale
aforesaid, and also ..,. dollars as an attorney fee, should any” pro-
ceeding be taken to foreclose this indenture by such sale and con-
veyance.
FORMS IN COMMON USE. 445

 

In witness whereof, the said party of the first part has hereunto
set his hand and seal the day and year first above written.

Sealed and delivered oes
in presence of save Scotsuee {.. s. i '
eaves cia Sih Sait om tee es

ASSIGNMENT OF MORTGAGE,

Know ALL MEN BY THESE PRESENTS, That A. B., party of
the first part, for and in consideration of the sum of ..... dollars,
.+.+., lawful money of the United States of America to him in
hand paid by C. D., party of the second part, at or before the
ensealing or delivery of these presents, the receipt whereof is
hereby acknowledged, has granted, bargained, sold, assigned, trans-
ferred, and set over, and by these presents, does grant, bargain,
sell, assign, transfer, and set over unto the said party of the second
part, a certain indenture of mortgage, bearing date the ..... day
of ...., one thonsand eight hundred and ..., made by (state who
and to whom made), and recorded in the Register’s office of the
county of ......, State of ......, in liber ..... of mortgages, at
page ...., with all and singular the premises therein mentioned
and described, together with the note or obligation therein also
mentioned, and the moneys now due, and the interest that may
hereafter grow due thereon; to have and to hold the same unto the
said party of the second part, his heirs and assigns, forever, subject
only to the proviso in the said indenture of mortgage mentioned.
And I do hereby authorize and appoint the said party of the sec-
ond part, my true and lawful attorney, irrevocable in my name, or
otherwise, but at his proper costs and charges, to have, use, and
take all lawful ways and means for the recovery of the sum or
sums of money now due and owing, or hereafter to become due
an? owing, upon the said note and mortgage; and in case of pay-
ment to give acquittance or other sufficient discharge, as fully as I
might or could do if these presents were not made; and I do hereby
for myself, my heirs, executors, and administrators, covenant, prom-
ise, and agree, to and with the said party of the second part, that
there is now due upon the said note and mortgage the sum of
(state what), and that I have good, right, and lawful authority to
grant, bargain, and sell the same in the manner aforesaid.

Sealed and dekvered, the ...... day of ......; 188...

In presence of ctieeteeeevevenncnenee [te Be]
446 MANUAL OF THE LAW.

 

DISCHARGE OF MORTGAGE.

Know ALL MEN sy THESE Presents, That I, A. B., of ....
do hereby certify that a certain indenture of mortgage, bearing
date the ..... day of ....., one thousand eight hundred and ...,
made and executed by C. D., party of the first part, to myself, as
party of the second part, and recorded in the Register’s office for
the county of ......, in liber ...... of mortgages, on page ....
on the ..... day of ....., one thousand eight hundred and ..., is
fully paid, satisfied, and discharged.

In witness whereof I have hereunto set my hand and seal., the
...e.. day of ......, one thousand eight hundred and .....
Signed, sealed, and delivered eoseceec, [LS

in presence of t L. S.

eeseeeeos
eae ererecceceneey

CHATTEL MORTGAGE,

Know ALL MEN By THESE Presents, That A. B., of 1.2.05
party of the first part, being justly indebted unto C. D., of ....,
party of the second part, in the sum of .... dollars, has, for the
purpose of securing payment of the said debt and the interest
thereof, granted, bargained, and sold, and by these presents does
grant, bargain, and sell unto the said party of the second part the
following goods and chattels, to wit: (describe them.) To have
and to hold the same unto the said party of the second part, his
executors, administrators, and assigns forever; which said goods
and chattels, at the date hereof, are situate at ...., and are hereby
warranted to be free and clear from all liens, conveyances, incum-
brances, and levies. Provided always, and the condition of these
presents is such, that if the said party of the first part shall pay or
cause to be paid to the said party of the second part the debt afore-
said, with interest, at the time, and in the manner (state method
and times of payment of principal and interest), then this instru-
ment shall be void and of no effect, otherwise to be and remain in
full force and virtue. And the said party of the first part hereby
agrees to pay the same at the time and in the manner aforesaid.
And if default be made in such payment, either in whole or in
part, the said party of the second part is hereby authorized to take
possession of and sell at public auction, after due and legal notice,
the goods and chattels hereinbefore mentioned, or so much thereof
as may be necessary to satisfy and pay the whole of the said debt,
interest, and reasonable expenses, and to retain the same out of the
proceeds of such sale; the overplus, or residue, if any, to belong
and to be returned to the said party of the first part. And the said
party of the second part is hereby authorized at any time when he
shall deem himself insecure, to take possession of the said goods
FORMS IN COMMON USE. 447

 

and chattels, and the same retain in some convenient place, at the
risk and expense of the said party of the first part, until the said
debt is fully paid, or the said goods and chattels are sold at auction
in the manner hereinbefore specified.

In witness whereof, the said party of the first part has hereunto

set his hand and seal the ...... day of ...... in the year of our
Lord one thousand eight hundred and .....
Signed, sealed, and delivered petting. faa Ss
in the presence of eecececee [L.S.
Partnership.
ARTICLES OF COPARTNERSHIP,
Articles of agreement, made the’..... day of ....., one thou-

sand eight hundred and ...., between A. B., of ...., and C. D.,
of ...., witnesseth, as follows:

1. The said parties alove named have agreed to become copart-
ners in business, and by these presents do agree to be copartners
together under and by the name or firm of B. & D., in the busi-
ness of (here designate it briefly, but accurately), in the buying
and selling all sorts of goods, wares, and merchandise to the said
business belonging. The partnership to commence on the .;....
day of ...., and to continue .... years.

2. To that end and purpose the said A. B. has contributed the
sum of .... dollars in cash, and the said C. D. has contributed tha
lease of the store in .... to be occupied by them, and the stock of
goods and good will of the business there heretofore carried on by
him, which are together estimated and valued by the parties at the
like sum of .... dollars, the capital stock so formed to be used and
employed in common between them, for the support and manage.
ment of the said business, to their mutual benefit and advantage.

3. At all times during the continuance of their copartnership,
they and each of them will give their attendance, and do their and
each of their best endeavors, and to the utmost of their skill and
power exert themselves for their joint interest, profit, benefit, and
advantage, and truly employ buy, sell, and merchandise with their
joint stock, and the increase thereof, in the business aforesaid.
And also, that they shall and will at all times during the said co-
partnership, bear, pay, and discharge equally between them, all
rents and other expenses that may be required for the support and
management of the said business; and that all gains, profits, and
increase that shall come, grow, or arise from or by means of their
said business, shall be divided between them equally; and all losses
that shall happen to their said joint business by ill commodities, bad
debts, or otherwise shall be borne and paid between them equally.

4. And it is agreed by and between the said parties that there

51
448 MANUAL OF THE LAW.

 

shall be kept at all times during the continuance of their copart-
nership, perfect, just, and true books of account, wherein each of
the said copartners shall enter and set down, as well all money by
them or either of them received, paid, laid out, and expended in
and about the said business, as also all goods, wares, commodities,
and merchandise by them or either of them bought or sold, by
reason or on account of the said business, and all other matters and
things whatsoever, to the said business and the management thereof
in anywise belonging; which said books shall be used in common
between the said copartners, so that either of them may have
access thereto, without any interruption or hindrance of the other.
And also, the said copartners, once in (designating the times), or
oftener, if necessary, shall make, yield, and render, each to the
other, a true, just, and perfect account of all profits and increase by
them or either or them made, and of all losses by them or either of
them.sustained; and also all payments, receipts, disbursements, and
all other things by them made, received, disbursed, acted, done, or
suffered in this said copartnership and business; and when‘ the
account is so made shall clear, adjust, pay, and deliver, each to the
other, at the time, their just share of the profits, and pay and bear
their just share of the expenses and losses so made as aforesaid.

5. And the said parties hereby mutually covenant and agree, to
and with each other, that during the continuance of the said co-
partnership neither of them shall indorse any note, or otherwise
become surety for any person or persons whomsoever, without the
consent of the other of the said copartners. And at the end or
other sooner determination of their copartnership, the said copart-
ners, each to the other, shall make a true, just, and final account of
all things relating to their said business, and in all things truly
adjust the same; and all and every the stock and stocks, as well as
the gains and increase thereof, which shall appear to be remaining,
either in money, goods, wares, fixtures, debts, or otherwise, shall
be divided between them.

In witness whereof, the parties thereto have hereunto inter-
changeably set their hands and seals the day and year first above
written. A. B. Hear]

C.D. [szar.
Signed, sealed and delivered in presence of

[Signature of witness. ]

ADVERTISEMENT OF DISSOLUTION,

Notice is hereby given, that the partnership lately subsistin
between A. B. and C. D. of .... under the firm aE B. and D,
expired on the .... day of ....., (or, was dissolved on the .....
day of .... by mutual consent, or, pursuant to the terms of the
FORMS IN COMMON USSR. 449

 

articles.) All debts owing to the said partnership are to be received
by said A. B., and all demands on the said partnership are to be
presented to him for payment (or, A. B. is authorized to settle all
debts due to and by the firm).

[Date.] [Signatures of partners. ]

ADVERTISEMENT OF A PARTNER’S RETIRING.

Notice is hereby given, that the partnership between A. B., ¢.
D., and E. F., was dissolved on the ..... . day of ..... so far as
relates to the said E. F. All debts due to the said partnership, and
those due by them, will be settled with and by the remaining part-
ners (who will continue the business under the firm of B. & D).

[Date.] [Signatures of the partners. ]

Petitions.
PETITION TO THE CONGRESS OF THE UNITED STATES.

To the Honorable the Senate and House of Representatives of
the United States in Congress assembled.

The petition of the subscribers, citizens of ......, in the State
of ......, respectfully showeth: (stating the subject of the peti-
tion). And your petitioners will ever pray, etc.

TO THE LEGISLATURE OF A STATE,

To the Honorable the Senate and House of Representatives of
the Commonwealth of (or, State of) ......, in General Assem-
bly met (or in General Court assembled; or, in Legislature con-
vened ).

The petition of the subscribers, citizens of ..... , in the County
of ......, respectfully showeth: (stating the subject of the peti-
tion). And your petitioners will ever pray, etc.

 

TO THE EXECUTIVE OF A STATE.

To his Excellency, ......, Governor of the State of (or Com-
monwealth of) .......
The petition of, etc., (as in foregoing).

 

Power of Attorney. A power of attorney is a written instru-
.
45° MANUAL OF THE LAW.

 

ment by which one person is empowered to act for another. A
person acting under a power of attorney is called an attorney in
fact, The power of attorney to authorize a person to execute a
sealed instrument for his principal, should be under seal, executed,
attested, and acknowledged the same asa deed. These powers are
general and special, and empower the holders thereof to act the
same as general or special agents, and are subject to the same laws
of revocation as are the powers of agents.

A SHORT FORM OF POWER OF ATTORNEY.

Know all men that I, John Smith, of the town of ....., in the
County of ....., State of ....., do hereby make, constitute, and
appoint James Brown, of the town of ...., county of ...., State
of ...., my true and lawful attorney for me and in my name to ¢

here insert what the attorney is authorized to do] and to do and
perform all acts or things in the execution of the aforesaid busi-
ness, as fully and completely as I might do were I present.

In witness whereof, I have hereunto set my hand and seal this
.... day of ...., 18...

, [Signed by person granting the power. ]

Signed, sealed, and delivered in the presence of

[Signatures of witnesses. ]

POWER TO COLLECT RENTS.

(Use preceding form, and place the following after f) to ask,
demand, destrain for, collect, and receive all such rents and arrears
of rent as are now due, or may fall due, or owing to me at any
time hereafter, from ...., of ...., or such tenants or persons as
may be occupying any lands, tenements, or hereditaments as may
belong to or be claimed by me, lying in the town of ...., County
of ...., State of ...., or which may be due from, or payable by,
any person or persons as tenements, occupiers, lessees, or assignees
of any term or terms of such lands, or any part of such lands,
tenements, or hereditaments, and upon such payment to give a
proper receipt and discharge thereof (then continue with what fol-
lows the bracket in first form).

 

POWER TO COLLECT DEBTS.

(Use first form, inserting the following at ¢) to ask, demand,
sue for, collect, receive, and give receipts for all moneys, debts, and
demands of any kind which now are due, or shall become due,
owing and belonging to, or kept from me by (names of persons
from whom the debt is due) or any person or persons residing
(continue with what follows the bracket in first form).
FORMS IN COMMON USE. 45

 

POWER TO SELL AND CONVEY LANDS.

ube first form, and insert the following at +) to grant, bargain,
and sell all or any such part of it, for such sum or price, and on
whatever terms that shall seem to him just and proper, and for me
and in my name to make, execute, and acknowledge and deliver
good and sufficient deeds for the same, either with or without cove
enants and warranty (continue as in first form after the bracket).

POWER TO MORTGAGE LAND.

(Use first form, and insert after + the following) to borrow
money upon the security of my land in ...... to an amount not
greater than ......, and to sign, seal, and deliver a bond or bonds
for the payment of such sums (insert the terrhs upon which the
payment is to be made, if there is to be a limitation), and to sign,
seal, and deliver as security a mortgage or mortgages upon my said
real estate, with the usual power of sale, and insurance and inter-
est clauses, and such other covenants and provisions as are custom-
ary (continue as in first form after the bracket).

 

REVOCATION OF POWER OF ATTORNEY.

Know all men that whereas, I, John Smith, in and by my letter
of attorney made the ... day of ...., 18.., did make, constitute,
and appoint James Brown, to be my true and lawful attorney for
me and in my name, to (copy the letter of attorney) as by said
letter may more fully appear.

Know all that I, the said John Smith, have revoked, recalled,
annulled, and made void, and do revoke, recall, annul, and make
void the said letter of attorney mentioned above, and all powers or
authorities therein granted, or intended to be granted, to the said
James Brown.

In witness whereof, etc. (as in first form).

Receipts.

RECEIPT FOR MONEY.
Received from A. B. the sum of .... dollars.

[Date.] C. D.

RECEIPT FOR CHATTELS.

Received from Y. Z. one cart, one wagon, one plow, one har-
row, one black horse five years old, known as Jack, and a yoke of
oxen, heretofore kept by said Y. Z. on his farm in .....

[Date.] ’ A. B.
452 MANUAL OF THE LAW.

 

RECEIPT FOR PAPERS.

I hereby acknowledge that I have received from Y. Z. the sev-
eral notes (or deeds, or contracts), and other papers, which are

enumerated and described in the schedule annexed.
Date. ] A, B.
Annex list, identifying papers by dates, parties’ names, etc).

RECEIPT FOR CASH PAYMENT, IN FULL OF ALL DEMANDS.

Received from A. B. the sum of ......e. dollars, in full of all
demands against him. C.D.
[Date.]

RECEIPT FOR MONEY PAID BY A THIRD PERSON.

$..... Received from A. B., by the hand of E. F., .... the
sum of .... dollars. C.D.

[ Date. ] _—_

RECEIPT FOR MONEY ON BEHALF OF A THIRD PERSON.

$.... Received from A. B. the sum of .... dollars. C. D.
per E. F.

ee

A RECEIPT TO BE ENDORSED ON A WRITTEN INSTRUMENT.

$..... Received from A. B. the sum of .... dollars, being (a
part of) the amount due upon the written bond (or contract, or
policy of insurance, etc.). Cc. D.

RECEIPT ON ACCOUNT GENERALLY.

$..... Received from A, B. the sum of ......... dollars, on
account. Cc. D.
[Date.]

RECEIPT FOR A QUARTER’S RENT.

$..... Received of A. B. the sum of .... dollars, being one
quarter’s rent, due this day, for my dwelling-house and estate,
No. .... street, now occupied by said A. B. C.D.
[Date.]
FORMS IN COMMON USE. 453

 

RECEIPT FOR PAYMENT FOR PROFESSIONAL SERVICES.

$..... Received from A. B, the sum of .... dollars, for pro-
fessional services rendered by me in (state the nature of the ser-
vices ).

[Date.]} Cc. D.

RECEIPT FOR MONEY TO BE PAID OVER.

$..... Received from A. B. the sum of ... dollars, to be paid
to the bank of .... on their surrendering a note which they hold,
made by said A. B., dated the .... day of ....., 18.., for .....
dollars payable .... days after date. Cc. D.

RECEIPT FOR MONEY TO BE DISBURSED.

$..... Received from A. B. the sum of ..... dollars, to be
expended in necessary traveling expenses and disbursements in
going to .... for him to obtain letters patent (or otherwise state
the nature of the disbursements intended). Cc. D.
[Date.]

RECEIPT FOR MONEY TO BE REPAID.

$..... Received from A. B., of ...., the sum of .... dollars,
which I promise to repay to him on demand (or, in .... days, or,
months; or, on the .... day of ....,18..). C.
[Date.]

RECEIPT IN FULL OF A PARTICULAR DEMAND.

$.2ee- Received from A. B. the sum of .... dollars, in full of
all demands for (state nature of claim) up to date (or, to the ....
day of ...., 18..). C. D.
[Date.]

RECEIPT FOR STOCK PUT OUT TO WINTER.

Received from A. B. .... head of horned cattle, viz.: ... cows
and .... young oxen, together with .... horses and .... swine,
which I promise to keep through the winter and feed with good
hay, etc., and return in good condition on the first day of ......
next, casualties excepted, he paying me .... dollars each, for the
cattle and horses, and .... dollars each for the swine. Cc. D.

Witness my hand.
454 MANUAL OF THE LAW.

 

Releases.
GENERAL RELEASE OF ALL DEMANDS.

Know all men by these presents, that I, A. B., of the city of
+eeeeeeey for and in consideration of the sum of one dollar to
me in hand paid by C. D., of ....,do hereby release and forever
discharge the said C. D., his heirs, executors, and administrators,
of and from all actions, causes of action, suits, controversies, claims,
and demands whatsoever, for or by reason of any matter, cause, or
thing, from the beginning of the world down to the .... day of
seeey 18...

In witness whereof, I have hereunto set my hand and seal this
-... day of...., one thousand eight hundred and .....

In presence of [Signature and seal.]

[ Witness’ signature. ]

MUTUAL GENERAL RELEASE.

This indenture, made this ..... day of ....., 18.., between
A. B., of ...., of the one part, and C. D., of ....., of the other
part, witnesses, that the said A. B. and C. D. have this day can-
celled and delivered up tothe other certain covenants, bonds, notes,
and written contracts, upon which he claimed to have demands on
the other; the said claims and instruments so cancelled and deliv-
ered up being supposed and intended to be all the claims and evi-
dence of claims by either of the parties hereto on the other. And
in consideration thereof, each of them, the said A. B. and C. D.,
does hereby, for himself and his legal representatives, release, and
absolutely and forever discharge the other of and from all claims
and demands, actions, causes of action, of every name and nature,
so that neither of them shall have any claim on the other, directly
or indirectly, on any contract, or supposed liability, or thing under-
taken, done, or omitted to be done, from the beginning of the word
to this day.

In testimony whereof, the said parties have hereto interchange-
ably set their hands and seals the day and year first above written.

In presence of [Signatures and seals. ]

[Signature of witness. ]

ee

SPECIAL RELEASE,

Know all men by these presents, that I, A. B., of the ...., city
of ...., for and in consideration of the sum of one dollar to me in
hand paid by C. D., of .....,do hereby release and forever dis-
charge the said C. D., his heirs, executors, and administrators, of
and from all actions, causes of action, suits, controversies, claims,
and all demands whatsoever by reason (here state the nature of
the matter released).

Witness my hand. ‘ A. B.
FORMS IN COMMON USE 455

 

Societies, ete. The following forms may be of service in the
organization of various kinds of associations, as agricultural societies,
debating societies, etc.

CONSTITUTION FOR A STATE AGRICULTURAL SOCIETY.

ARTICLE I. The name of this association shall be “ ‘The Mich.
igan State Agricultural Society,” and its object shall be to promote
the improvement of agriculture and its kindred arts, throughout
the State of Michigan,

ArT. 2. The officers of this society shall be a President, one
Vice President in each organized county in the State, a Recording
Secretary and a Treasurer, and the Corresponding Secretary of
each organized County Agricultural Society shall be the Corres-
ponding Secretary of this Society for their county; and any
county not having an organized County Agricultural Society shall
not be entitled to a Corresponding Secretary of the State Society;
and an Executive Committee, consisting of the President, Treas-
urer, and Recording Secretary, and twenty other members to be
chosen for that purpose, and also the ex-Presidents of the society.
These officers shall be elected by a majority of the votes at the
annual meeting of the society, and shall, except the twenty mem-
bers of the Executive Committee, hold their office for one year,
and until the annual meeting of the Executive Committee. There
shall be thirteen members of the Executive Committee elected at
the meeting of the society in 1871, ten of which members shall be
chosen to serve two years from January, 1872, and three members
for one year from the same date; and at the next annual meeting .
of the society, and annually thereafter, ten members of the Execu-
tive Committee shall be elected to hold for two years, and until the
annual meeting of the Executive Committee: Provided, That
the officers named upon the organization of the society shall be
deemed members, and shall remain officers only until others shall
be duly elected at the first annual meeting; and if a vacancy
happen, it may be filled by appointment of the Executive Com-
mittee.

Art. 3. The duties of the President, Vice President, Record-
ing and Corresponding Secretaries shall be such as usually pertain
to their respective offices, and such also as may be prescribed by
the order of the Executive Committee, as hereafter provided.

ArT. 4. The Treasurer shall receive and keep an accurate
account of all moneys belonging to the society; he shall pay cut its
money only on the order of the Executive Committee, and at each
annual meeting of the society he shall make a full report of its
financial transactions and conditions.

Art. 5. The Executive Committee shall determine the place
for holding each annual meeting and fair of the society, and it shall
call that meeting and fair at such times as it shall judge best,
456 MANUAL OF THE LAW.

 

between the first Monday in September and the third Monday in
October, giving at least sixty days’ public notice thereof.

Art. 6. The Executive Committee shall direct the money
appropriations of the society, and have the control of its property;
it shall make the necessary preparations for the annual fair, and
issue all proper public notices and circulars in relation thereto, or
to the general object of the society; it shall prepare the necessary
by-laws of the society, and may prescribe such duties to the other
officers of the society as are not inconsistent with the usual business
of their respective offices. It shall itself obey the instructions which
may be given to it at the annual meeting of the society, and at the
expiration of its term of service shall make a full report of its pro-
ceedings. It shall be competent for the Executive Committee, or
a majority of them, to appoint a Chairman and Secretary, who
may transact such business as they may be authorized to do by said
committee; and said Secretary shall sign, and said Chairman shall
countersign, all orders on the Treasurer for the payment of any
money directed by said committee to be paid for any purpose, and
said Secretary shall keep an accurate account of all orders so drawn.

Art. 7. It shall be the duty of the Executive Committee
annually to regulate and award premiums on such articles, produc-
tions, and improvements as they may deem best calculated to pro-
mote the agricultural and household manufacturing interests of the
State, having special reference to the most economical or profitable
mode of competition in raising the crops or stock, or in the fabri-
cation of the articles offered: Provided, always, That before any
premium shall be delivered, the person claiming the same, or to
whom the same shall be awarded, shall deliver to the Recording
Secretary of the society, in writing, an accurate statement and
description, verified in such manner as the Executive Committee
may direct, of the character of the soil, and the process in prepar-
ing it, including the quantity and quality of the manure applied in
raising the crop, or the kind and quality of food in feeding the
animal, as the case may be; also the kind and cost of labor
employed, and the total expenses and total productions of the °
crop, or the increase of value of the animal, with a view of show-
ing accurately the exact resulting profit.

Art. 8. The Executive Committee shall meet annually, at such
place as it may itself choose, on or before the second Monday in
January, and shall then immediately prepare a report and abstract
of the transactions of the society during the preceding year,
embracing such valuable reports from committees, statements of
experiments, cultivation and improvement, proceedings of county
societies, correspondence, statistics, and other matters, the publica-
tion of which will exhibit the condition of the agricultural inter-
ests of Michigan, and a diffused knowledge of which will, in the
judgment of the committee, add to the productiveness of agricult-
ural and household labor, and therefore promote the general pros-
FORMS IN COMMON USE. 457

 

perity of the State; and, as soon as practicable, the committee shall
transmit such report and abstract to the President of the Senate for
the use of the Legislature.

Art. g. No officer of this society, except the Recording Sec-
retary, shall receive any compensation for his services. The Exec-
utive Committee shall allow said secretary such sum for past and
future services as they may deem advisable.

ArT. 10. Any person may become a member of the Michigan
State Agricultural Society, for one year, by paying one dollar into
its treasury. Any officer of the society may receive and forward
to the treasurer the fee requisiteto a membership. By paying ten
dollars into the treasury of the society, any person may become a
life member, and shall be entitled to a certificate of such member-
ship, signed by the president and recording secretary.

Art. 11. The several County Agricultural Societies that now
exist, or may hereafter exist in this State, shall be deemed auxilia-
ries of the State Society, and it shall be the duty of the Executive
Committee to invite and receive reports and abstracts of the County
Societies, to be used in preparing the annual report to the Legisla-
ture, which is provided for by article eight of this constitution.

ArT. 12. The president and recording secretary of each County
Agricultural Society, and all life members of this society, may
attend the annual meeting of the Executive Committee, and freely
participate in all discussions which shall occur at said meeting.

Art. 13. This constitution shall be altered only by a vote of
two-thirds of the members present at an annual meeting of the
society.

ARTICLES OF ASSOCIATION FOR A COUNTY AGRICULTURAL
SOCIETY.

1. This society shall be called the ....... County Agricultural
Society.

2. The particular business and object of the society shall be the
encouragement and advancement of agriculture, manufactures, and
the mechanic arts in ...... County.

3. Any person, a resident of ......... County, may become a
member by paying to the Treasurer one dollar, and subscribing to
the articles of the association. And he shall annually thereafter, on
or before the first day of the annual fair, pay one dollar into the
treasury so long as he shall continue a member.

4. The officers shall consist of a President, Secretary, Treas-
urer, and nine Directors, who shall be elected by ballot at the
annual meeting, to be held on the third day of each annual fair.
Their term of office shall! commence on the first day of January
then next ensuing, and they shall hold the same for one year there-
after, and until their suecessors are elected and accepted.

—t
458 MANUAL OF THE LAW.

 

5. The said President, Secretary, Treasurer, and Directors, a
majority of whom shall constitute a quorum, shall constitute a
board for the management of the concerns of the society, as pro-
vided by law.

6. The President, or in his absence such one of the Directors as
the members present may select, shall preside at all meetings.

y. The Secretary shall keep a record of the members of the
society and of its proceedings, and shall perform the duties usually
pertaining to such office, and such duties as the board may from
time to time prescribe.

8. The Treasurer shall receive and take charge of all moneys of
the society, and shall pay out the same only by direction of the
board, or the order of the President, countersigned by the Secre-
tary. He shall keep a correct account of the receipts and expend-
itures and render an account thereof to the board when requested.
And he shall give a bond with sureties in such sum as the board
may require, conditioned for the faithful performance of his duties.

g. It shall be the duty of the board to adopt and publish such
rules, regulations, and by-laws as may be considered necessary to
regulate and carry out the object and business for which the
society was formed.

to, These articles of association may be amended at any annual
meeting by a two-thirds vote of the members present and voting
thereon.

CONSTITUTION FOR A DEBATING SOCIETY,

ARTICLE L

NAME AND OBJECT.
Szc. 1. The name of this society shall be the “ Rouge Glen
Literary Society.”
Sc. 2. The object of this society shall be the study of litera-
ture, composition, and criticism, and practice in the art of debate.

ARTICLE IL
MEMBERSHIP,

Szc, 1. Any citizen of Rouge Glen may become a member of
this society by paying to the treasurer an initiation fee of fifty
eents and signing his name to the roll of members.

ARTICLE IIL
OFFICERS.
Src. 1. The officers of this society shall be a President, Vice
President, Secretary, and Treasurer. They shall be elected by

vote of the members, and shall hold office for one year, or until
their successors are duly elected,
FORMS IN COMMON USE. 459

 

Szc, 2. It shall be the duty of the President to preside at all
meetings, maintain order, decide tie votes, and have general care
and supervision over the interests and affairs of the society.

Sgc. 3. It shall be the duty of the Vice President to assume and
perform the duties of the President in the absence of that officer.

Sc. 4. It shall be the duty of the Secretary to make and keep
careful minutes of all meetings, to have the care and custody of the
property of the society, to keep true accounts of all business trans-
actions of the club, and to attene to all correspondence.

Szc. 5. It shall be the duty of the Treasurer to collect and take
care of all moneys of the society or due the society, and pay the
same out on the order of the Secretary endorsed by the President.

ARTICLE IV.

Src. 1. The meetings of this society shall occur once in two
weeks, at such place and time as may be decided upon by the
members,

ARTICLE V.

The members of this society shall have power to adopt such by-
laws for the regulation of their affairs as they deem expedient.

ARTICLE VI

This constitution may be amended by a two-thirds vote of all the
members. Notice of proposed amendments shall be given in writ-
ing to the Secretary, and read by him to the members at the meet-
ing next preceding the one at which the vote on such amendments
is taken.

ae

SET OF BY-LAWS FOR A DEBATING SOCIETY.

1, The meetings of this society shall be held in the .... school
house once in two weeks on each alternate Tuesday evening at 8
o'clock P. M.

2. The following shall be the order of exercises observed at the
meetings, unless otherwise ordered by the society: ;

1, Call to order by the President.

2. Reading of minutes of previous meeting by the Secretary.
3. Communications from the President.

4. Reports of Committees.

5. Debate upon the question of the evening. .

6. Statement of the question for next discussion,

4. Adjournment.

3. There shall be a standing committee of three members
appointed by the President, whose duty it shall be to select ques-
tions for discussion, and to name the chief disputant upon each side
of the question,
460 MANUAL OF THE LAW.

 

4 After the question for discussion has been stated, and the
names of the chief disputants have been announced, the chief dis-
putants shall each select in turn six assistants from among the
members. -

5. Debate shall be limited to five minutes speeches, excepting
those of the chief disputants, who may have ten minutes for their
opening speeches. .

6. All of the members present at any meeting, who are not
selected as debaters, shall act as judges of the debate, and shall
decide the question by a majority vote.

7. Cushing’s Manual of Parliamentary Procedure shall be the
standard of authority upon all questions of procedure.

Notr.—By-laws, such as the foregoing, may be continued to any extent deemed
necessary. ‘The above will sufficiently illustrate their general form.

 

Wills. See Chapter on Wills, pages 264-271.

WILL OF BOTH REAL AND PERSONAL ESTATE.

I, A. B., of ...., in the County of .... and State of ...., being
of sound and disposing mind and memory, do make, publish, and
declare this to be my last will and testament, hereby revoking all
former wills by me at any time heretofore made.

My will is, that all my just debts and funeral expenses shall, by
my executors hereinafter named, be paid out of my estate, as soon
after my decease as shall by them be found convenient.

I give, devise, and bequeath to my beloved wife, C. B., all my
household furniture, my horses and carriages and the harness: and
also... dollars in money, to be paid to her by my executors,
hereinafter named, within .... months after my decease; to have
and to hold the same to her and her executors, administrators, and
assigns forever. I also give to her the use and income of my
dwelling house, land, and its appurtenances, situated in .... afore-
said (describing the same), and my land situated in (describing the
same), to have and to hold the same to her for and during the term
of her natural life.

I give and bequeath to my honored mother, E. B., .... dollars
in money, to be paid to her by my executors hereinafter appointed,
within ...... months after my decease; to be for the sole use of
herself, her executors, administrators, and assigns.

I give and bequeath to my daughter, L. B,, my ...... shares of
the stock of the.... Bank, in ...., County of .... and State of
-e++, Which are of the par value of .... dollars; to have and to
hold the same, together with all the profits and income thereof, to
her, the said L. B., her heirs, executors, administrators, and assigns,
te her and their use and benefit forever.
FORMS IN COMMON USE. 461

 

I give, devise, and bequeath to my son, H. B., the reversion or
remainder of my dwelling or mansion house and its appurtenances,
situate in ...... aforesaid (describing it), and all profits, income,
and advantage that may result therefrom, from and after the
decease of my beloved wife, C. B.; to have and to hold the same
to him, the said H. B., his heirs and assigns, from and after the
decease of my said wife, to his and their use and behoof forever.

I give, devise, and bequeath to my son, J. B., the reversion or
remainder of my land situated in (describing it), and its appurte-
nances, and all the profits, income, and advantage that may result
therefrom, from and after the decease of my beloved wife, C. B.,
to have and to hold the same to the said J. B., his heirs and assigns,
from and after the decease of my said wife, to his and their use and
behoof forever.

All the rest and residue of my estate, real, personal, and mixed,
of which I shall die seized and possessed, or to which I shall be
entitled at my decease, I give, devise, and bequeath, to be equally
divided between and among my said sons, H. B. and J. B.

And, lastly, I do nominate and appoint my said sons, H. B. and
J. B., to be the executors of this my last will and testament.

In witness whereof, I, the said A. B., have to this, my last will
and testament, consisting of ..... sheets of paper, subscribed my
name and affixed my seal this .... day of ...., in the year of our
Lord one thousand eight hundred and .....

Signed, sealed, published, and de- A. B. [szat.]
clared by the said A. B., as and
for his last will and testament,
in the presence of us, who, at
his request and in his presence,
and in the presence of each
other, have subscribed our
names as witnesses thereto.
{Signatures of witnesses. ]
secccece coccccccoey residing at ....,in .... County.
eececcce socceceeeey residing at ....,in..., County.
cecccece socececceey residing at ....,in.... County.
 

DRAKE UNIVERSITY, DES MOINES, IOWA.
GENERAL INDEX.

A.
: Paex
Abatement of nuisances, general remarks. _.._ eee aaa Séeceeoescsewe: 179
when proper_____........... Penne Seta chatter Coes 129
Abstract of title, does not identify parties... 2... 2. eee e eee ween enon 47
Wulity/ Of 22sec crek ka cdase Sacciucesasecdlueasesecees 47
Abuse of hired animals. _._ 22.222. e eee etme eee c eee w cee eee 242
Acceptance and receipt, what constitutes... 002-0 ee ecee neon eccee 213
Accretion, title obtained by... 0.2.2 eee ene ee eee eee eee 19
Acknowledgment of deeds.... 20.20. oe cee e een cence ewe eee e eee ene 43
bY Wifes ncwcniwcsceeevelouecsesceweesencssew sees 43, 283
how taken, ctes.s cc ccccecsccncncecnccetonsscesteccd 282
Acquiescence in boundaries......-...... Siesisen, cuiasietsoce suse cussed 85
Acquirement of real estate, chapter ON... ..--------cececssecenecennne 17
Acquirement of mill privileges... .- 22. .2.2--2- eee eee e eee een see nen eee 108
Adjacent owners, rights of in streets. ..._...... dcnsewesausccseuduuceses 121
Administration of estates... 2.0... cece eee n eee nee n nce c enon ccencceece 261
is it necessary.__........ wieiwvcessusswcecetesaceecwenes 262
Administering an oath, form of.._... dsicwesevsceteeseusss ce ckes dc ideas 282
Administrators, duties of......... SieSwiciseBivieSemediaw een vce wedccwwees 272
Advancements, defined... 20.2... oe eee e ne en wee eee cence ne eee e ee nw ene 259
must be made known. ..._...-2---2--2e eens nc en ee enn ne 259
Affidavits, remarks on form Of... 2.2222 eee ewe e eee ene nner cece ceeneence 281
jutat to: 22s. Jescsssercneimececeeceviteseessesiccmencec weee 282
taking of by notaries, ..o--asccccc.eecssescesssctastecn ce ceis 281
Agents, cannot act for pre-emptors or homesteaders....-.....220-----20 - 28
“ Agistor,”” person having custody of animals.......... weg sscecae cece = 238
Ut 6S?. OF }32..0 eee tele th LG aoeieceseetetesciesecateenbiwcs 238
is notian insurel! wc oo cd cis ce wee ndmeneeeeucsscecpwecces 238
cannot use animals pastured... 2.22. scence ce ene cee nnn ene ene 240
has no lien at common law. .... 2.2 -2--enccen ee nn cece ne cece 239)
Agreement to buy land not binding unless written. ........202----0-20--- 34
to sell as distinguished from a sale_......--.2------eeeee eee ee 211
Agricultural machinery, what is a fixture....-.-..--... gecccce iiseciceescie 74
Air, law concerning... ..2... 2 22-2222 o econ cere ccc ne neces ee cnen ences 9!
Alterations that may be made by tenant........ --2seeeeneenen enone a--- 248
Animals, borrowed, law as to... .....------- ence cen nnn ce ene scceenene 242
duties of hire? Of ....eceecccencaseccsscsesesesscccssee csc sce 242

32 “
464 GENERAL INDEX.

 

Animals, farm, laws concerning.......---- Sbbeseweoestaccccceemawereen
hired, abuse of._.___..... siieweweweccadenpe<s waceces aeececee
hired, rights of owner. .....220.0---eeeeeees Tae Geta atsl
hiring of, chapter on........-2.2----- ee ee enene eee eeccenacce
law as to impounding......-... Recaaccmelss wan enencccccecseces
liability for acts of....--. Secs secucmesecis se wewesewsoeenene o-
pastured, cannot be used_........-. Suscdcseessieeareessee eoen
pastured, trespasses by...........-. ecuvweusccees act ennenaees
pasturing, law concerning........--------+-- een ew wenn eet ew enn
trespassing, may be turned into highway ...... we eeceeeeeee waee
vicious, injuries by... ..------------- ene nnn e ene eee eee e ne oo
vicious, may sometimes be killed_.......--.0--e0+ exeeeserees oe
wild, must be kept with great care. ..2. ce. ceeecenneeennee wore

Appeals in deliberative bodies............. Sobaeeeease a enewenee eenecee

Appraisers of estates of deceased persons_......---2seeeeesenececee eonee

Apprentices, law as to._._.. ahceeeras euennwiensins sacle eeteeeece e@eanenne

Appurtenances, what are they_...... waiceseie tewemncnen es ccnnnenneee es.

Arbitration and award....... dcdseceerdscavocrersenscossseey asadsiene

bond for... 2... eee ewe wwe ea ccccennemennneennsennansace
how to proceed by..._...... oan nme nnn cen n cen enuneenceccne
method in Michigan__.........------- Beeeiwcnn Saige ew echoiain
statutory methods of......... eacvesteecse senses ecedcecia aes

Artificial pounds, rule as to, concerning boundaries_.. 20... .-ececnenneeeee

Articles of apprenticeship, form of........--....--48 giwatccemeeesecis one

Assets of estate, inventory of.....2.-cce-seeee edhcseeeeaeee! slowicesiieiais'a es

Assignment of land certificate.........---- Reeewewsewdcnmeeceemiowca waite

of mortgages....... Se resscachuewesuccaues esacseecuetcacs
general remarks upon law of...... eruseebeenecaccemsics eareieis

Attachments, etc., as affecting title... 2... oe eee ew een cee wenn ween eene

Attestation of wills, form of_........---------- wescectecus sie ssisinaiewes!

Attorney in fact, deed by...-.... 2... émaceeseesses Sabicmwecaiicnicls cca

Attorney, power of, how executed__......--... écnisesescmecceucocduniocs

B,

Bees, law a8 to.......-.. ebsesedeuceeesees sbcece egeigicnceasecoueeeces
care required in keeping...-_-...-....... socesemecwee cia deiecewceceu
should not be hived near highway........ enneseoeswecieel fois me eietolevasanas
wild, rule as to ownership of_ 2.2... eee nce eee n weno ene ene Shoat

Bills of exchange, remarks concerning........... be Stsceheeweenoodwecss

Bills of lading, remarks on_. 22... .ceneennnee Sees cease sease seccteceda

Bills of sale, law of....... pRSedas chs visetscowesezes decctonw aceuess

Bond in arbitration. 2.02.25... sees ee en eee wiedisieseecisciam eecedcececed

Bonds, law conceming........ qestearsceciecseclues Resuena tedstece oo

Borrowing animals, law a8 tO . 2... ccc anc ewne nen cence eneceweccacencene

Boundaries, acquiesence.. .... 2.0 --ceeeeeeee ovedmiciweccseces seasvecce

inland Jakes, meander lines, ete.........cccneccce aseSeeesess
of the farm osc wewcacascececewcccswsesadeesuesecs seveece

Fale as to highway3_. 2... .ce-enen eee scencecnncwnawsnecea
rale as to lakes. ..2.

236
236
237
237
235
393
394
254
398
242
85
86
79
&4
83
GENERAL INDEX.

 

Boundaries, rule as to surveys. _... esacneeucseceteausesseesoeats weewsee

tule as to the sea... oo. cette eee Susweatcucsse sisve

Brands and ear-marks on cattle.....2..02. Giueeseosscecdcwsceecccseoees

Breach of warranty, remedies for.._... Suc ivesewacocedessossesceekbseeed

Buildings, failure to repair,........22....-..- eeccmes scceine ss ceuesaces

defective, injuries by, liability for........... dicewses eocesncesee

old and unsafe, may be nuisances. 0... ooo cc ec een nerceeencene

Bull, ferocious, must be restrained___..--..22.. svtwakbecebveneces eSasess

Business, how to bring before a meeting.........--.. wiawseseaes oueeeeess

Buyer of goods, rights and remedies of........---.24 Steaciccisecstes sae

By-laws, constitution, etc., for a society... 2. cececencne mwccwnnsevccvcee
Cc.

Care required of carriers of persons... .._ 12. ccceccaccccacnceccencccces

Careless setting of fires unlawful... _ 2... 0.22 eee eee cee een eee oe

Carriages, must be roadworthy ___ 2... ses eee seen een n nnn ee cnee steceeee

Carmier of goods, duties of... cee ence ene n een ene wecbouce

insures their safe delivery... ......20 0. --eee- een ee weeesie

Carriers of persons, must carry all impartially_.......... odensesicmmecacs 3

their liabilitye.-oo23 sncececeseesescncaccocusn eeens

Carriers, liability of, contracts limiting... 2.2. oa eeen een n cen ecne sees

negligence of, evidence. .... sutitiewennec cece emaweaesieuees Soes

rules adopted by... 2.1... pwc wen ee eee ne ee ee ace escaae passe

Castle, every man’s house is his_..._ 2.20. 02-ceeceeeoecnnenneeececeneee

Cattle, brands and ear-marks on... 22.2.2. scene ee eeen enn aieiicicwtaje at

diseased, sale of..............-2---- #6 cscdeeneeestiemcon onevenae

diseased, when nuisances, liability for;._....5...-.---ses-. wcaneve

in the highway, chapter on ..........5.--e-0e- eenmancnne eeeenewe

lawias to, genetallly: .<ci/cenececucateseceveccvcetScevcusces o-

must not be injured because trespassing............-- eee enneencene

“ Caveat emptor,” maxim illustrated. .__......22.---22-2000 dieniesenc cess

maxim in law of sales........2. ae eewoeeeueaaceadena

Caucus or primary meeting, how conducted. ....2..se..-ee-ee seen Sere

Certificate of regularity. -.....2.....--..----.0- weet e een ne wwe ence aieinis

Cess-pools, privy vaults, etc., when nuisances__......-..0------eeeee picieicts

Children, illegitimate, how they inherit..._.......... oe sceaseeossetieeaas

who owns their wages........-.-.-------.---- weaesee: Setewece

Circulars of instructions from land office........-.-.-.--.- wietetsesecace

Claims, commissioners on...._..-....e----0 siaigieie Sam eeetwase ces cekiwelclc

Clay, when it may not be sold by tenant...._.--. aiaicinine roa a Sieediecate

Codicils to wills. .......2..... oe ee ene wenn nnn en annnccnne Se nneecnee -

Collecting rent.........--.----0.- Wem ecneewenscenene eencee sac neenceee

Commercial paper, protesting of.........-..------+-- scesspitewsws Sesesu

Commissioners on claims.........- sudicociweseexe dwienecwaweswexeeeens

Common carriers, chapter ON .....----2.--220-----eceeenneee ewancenecee

Judge Cooley’s definition of... 2... ecene aiveeaaccsoccs

229
177
113
226
227
231
229
228
230
231
129
235
234
176
15K
234
158
220
219
292
284
174
259
186

30
275
149
269

284
275
226
466 GENERAL INDEX

 

Paen.

Common law, term explained. _ 22... 2 ns cannencaccncnscunnscweccccences 3
as to descent of property......c--.cneccne-ccac-nccccccccs 256

as to fences............ Seeecccecasecdacecencecseccseces) 142

as to cattle in highway... .e-eacces sew enncecccseececcce 154

Committees in deliberative bodies... ce ccc eccccccnc-cnccce 303
reports of, how made... ...sececccccrcnccccccnccccccaccee-2 304

Composted manures, rules respecting......ecceccsacecceccccenccncsceraee 139

 

Compound interest..........- wdWweieUuedciccecaicenseveeedsmcecswececes 02
Conditions, sale made UPOD..... 2. cnecccesncccnccccccccccneccencncce 217
Congress, acts of _....... Ss dadoelacen: Du WSw es CHW i Rele seein ee iemiw enon 2
Considerations in contracts, remarks on..... Cetoescassccuceeeusesecsecs, 9
in deeds __.__..-...-.2- Soci Ses ekee esac ceccseacsesecses, ~ 40

Constitution, by-laws, etc., for a society............ Eveboeeeeesccccoceaes, 200
Of. a Stat@s25 cic CUweasssecosacececeecadaissaceccccscen 2

the federal__._.. aerwtarate: aranawerareate sceveusicoweasecccedsseewe 2

Contagious diseases in cattle, must be restricted.....2.. webeecccweasesescs. 176

Contracts, against public policy....... caiewee wiwevessees eiseetceeeacnsccs 6
defined and explained. 2.21. enc enc cee nnnccencccccane 4

for purchase of land_........ eccenemccccencecenccenensanacce = 35

in restraint of trade illegal. _... ce. ceanecenncccccccencnccces = 6

limiting carrier’s liability... .. picinenisd Sasicceccivcecsescoccenes 228

mutual assent to, necessary.......-.. Oe cen nc wcenewcccccnccces 7

of hiring, by minors... 2... te em m cece enw w nn nenceenweccccces 185

of hiring, kinds of_..... 2. sinSSee cetieewetecccesersescesecaes 19T

of hiring, when implied_. 2.2.2... -nececeecce--e ecccencecccce IQ

of sale, form of........---- Jee eee (eSSacseectews'sccwesiciecee s2h2

of sale must sometimes be written. _..... scence cececseneees II

proper parties to._...........--2-6 Sesweeeeeesscesesssscaess. 6

requisites of ........2.....---0-- deen tp eam ei ua ee wweae eae 5

to sell land, verbal, not enforceable... .....sccecccecncace---en- 35

valid consideration necessary ..... evil Wessesdcetecubeescatecs 7

what must be in writing ........ Sadtewanvaraccscscessdcevecs 8
Convention, how conducted ___.__.......-. $30 casaceececeecesessecseee 2203
Conveyancing, rules of, notaries should know. .......cesceecccecececee 284
Corporation, deed of... 2... eects ouessdes! ediepeeecsiieeccseceoeoces, 940
how to form_._._......22..-eee Sot toiaiarataae Weldeceseccssceus:| 290
Cottonwood, recognized as a timber tree by government..........cceececee 30
Courses and distances in surveying......... wien setesemeeeciectececoces SI
Court, probate, remarks upon.......... Sewn eacawccecd seer sacsseeseees, (278
Covenants, in deeds... 2-2. eee eee eee WeaGaidinawcatoecisaecesoce. 24h

Cow-yard, near highway, held to be a nuisance_.........cccecnccweccacee 172
Crops, how those raised on shares are divided. ... 2... ccc ec cceccccece 252

raising them on shares».___.... we eee e eww en nme ecneeccenccnsnns 251

when held to be fixtures... 2.1... ennec saccccecaccecensccccncees 73
Cropper on shares, duties of ...... Gmscieia Swe eaicissictnwweticwseewsassocces 252
is nota laborers ceccseecsccccrsecccwednscdssensasece 253

Crossing a street, rule as to.._.._... dddecccesasvacwecccusscesecedemeiee 116

Curtesy, when abolished in Michigan ...ccnccscncassccnccccccncscancae. 52
GENERAL INDEX. 467

 

D.
Paex.
Damages, caused by employes, liability for... .... soteuuet dete eee 199
for maintaining nuisances._..__.__. Seas: eee Se es ele 181
for careless setting Of Gres 5 oo tet alsa tess a Boauee 178
measure of for breach of covenant._..... pote mat aa Gagnoweus cess 42
Dangerous excavations, when nuisances. .__. 2... -enecenceceeeece--ee- 172
Days:Of gratesecse iiss) 2s sented wbcs swnsacdccccetesccceus eoees weee 285
Death, how property is disposed of by__._.. PEER Gy Aes Me Se ciee woee- 264
Debate, how conducted......._...-..2 ee aetna Gee aes ee Se Sees: 305
Gecoruinli secession ckce caw cesdmoucauweeciewewaseccaee atasees 305
Debating society, how organized... 2-2 e eee ewe newene Si eecesice 294
rules for.......... stun he CASA AON GED pie eee lato ete 289
Debts, payment of by administrator... ._. 2.2 --.-. oe eeeweenee nee en ene 261
order of payment of by administrator_......2....---26 eattessmest= 275
Deceased persons, estates of.......... Save Use uaa mw diegin soe eieiaisie 272
Decorum in debate... 2-2. nee eee eee e ne eee enc eee se Sesseceesbacesan 3°5
Dedication of public streets........2... aNerenl So eer e eee Near oe ete te ata ees 122
Deeds; chapter Onssjosjscsssssccseccccccacocsesiesecccecncseneeeescce se 37-45
acknowledgment of__.....2...- iwwegesessucass Sewseeeseseomeces 43
consideration of... 2... 22-20-04 sdhcecasesecessisacsdicenscces 49
covenants in... 2... eee eee ene apiece eecgceudesessoocecs 41
definition of.__.. She ak, meio eawcniccets Cee eS eeeee 38
delivery of.......2..2.-20-00 ists soe! here atich eens een cuseuse 43
description of land in.__...... poe terene toto heetataes ahaa aes sie waSomeneaeae 4!
execution of___._ 22 we eee ene ays yerers Waieireeraieicteeie 42
how made by agents or attorneys. .__.. weaenee Sescacs, sunesicnmsaas: 40
how made by corporations... 2.2. 1. ween nee ence enw eee ce ne eeere -- 40
how made by married women. __... 22.22.22 --e eee eeene eseuaces - 42
Parties 00225 cscs ac cieecweeessecsmiseletcasecedemicasiesieie: esseee 6339
poll and by indenture, difference between._........-- ad Nestajawietaiaie sa 45
of trust_.....---. nen siceececkossesedecsscoctes sswemtececes 67
recording of.___.. sosewieecenaceczes seestecesee ésidoveccncesnne 44
PEQUISILCS OF. 5 os Snicnsiewcceacccmawae cass esanstvedsasosesccs acon 38
tax, observations UpON........---c2seeeeeee eee eernnne eereceeee 206
WItDESSOS $0... 20. cen sania 10S ee RR Oe ReK worcece 43
Defective buildings, injuries by, liability for.......... Gg Site widiene were wicuisis'elws 196
machinery, injuries by.._.... Segesetas Secessee sceucceinceeases: 395
Definition of common law_........- isiseciguesasseccseccs Sdibmsomeces one 4
of a contract........... cece ene wiedeecenSucactescg: ecieceeouse 4
Of deed ss a ccuucouveabsaseecssacees edcesaus saccsle cvcee 8
of law..... ctveueteexsenaw wistsinewesieeies wise mere sisidideiaieiduwie = I
of law terms. 204-00. csecccnecccnes cee oe eae w nee cee eo - 309-345
of mortgage......-..-.- wacewe nee emeenascccesenccnsenerces | 54
Of a sale... ccccacccccenccccecscccncascencccccsccenceccee 210
Of taxeS.. 2. cc cccc scene ce ence teen namenenscennencacencess 203
of “ warranty "0... ences snc wecenveccercceree eenececccnnnce 218

Of Will... ncccccnccnrccnansecncnenonverasecancacanenens 265
468 GENERAL INDEX.

 

Paar.

Delegates, meeting of, how conducted ..0.-.-0.ccccccccasceccccccncnssee 293
Deliberative bodies, rules for..........- epee ce Sa Roe me Dasaucar -200)
Delivery, essential to the validity of deeds. ........0-0-- necceen cen aee coe 4
Depositions, what are they....... Seeeshun pads swecielewe Geceee sescceees 282
Descent of real property. _...... Scdeenidmaien deters Udisln Veieeipectceweesiae 258
Description of land in deeds. __.. waswiswesesencste juin ielesios cose euceneene 41
Destruction of property to prevent spread of FTO. ois siaisieasinn winia snieinin esccee 130
Dog fights, who liable for consequences of......... seceenewecccccesscene, “162
Dogs, injuries by, rule of liability............ Seceeaks geome sentveceete 160
may be used to drive off trespassing animals_..._. Tes etececesses 158, 167
savage, may be set upon burglars ...........-..--- Soseeus eeacece = 158

traps must not be set for............--- wnicaiies cosas spesepsrecuce 128
trespasses by. 2... o eee eee ee ereccnnnnee ee meenecceee - 133
statute law concerning......... SauGeuerceteueeeee wecascesueees ss 163
Dominion over one’s land....--...... didecbeaaedevadecw en coubes suse we - 127
Dower, right of, described... ..2--.0----000-- siusicels ae seintesicosinne wwe 39
right of, how transferred_...... eGwemweeets giver deeeteeese ter 39

how it may be released._... waiejejaimiaja sista aise swewececccecceces 49

a long lived right.. 2.222.222 eee eee enone snececeecoe woeswece: 149)
widow’s right of.....-.....----- Sisiwecseudessee! wsecucee asece 258
Discharge of mortgages...-....--..-- Sseenehocstcesepedacsaue weaseos (04
Discharge of water, may be a nuisance. ___......--------..-- geccceeaess 175
Diseased cattle, sale of... 0.0.22 - 22-2 e ee eee teen eee ee nee eee aweniesese 234
when nuisances, liability for... 122.0220 2. -ee anne eenneeee 176

sheep, duties of owner__....-..... ped desea se etaeabicicscmenis we 235

District land office, fees of... 2 cece eee nee e een ne ene c en eceumecee wx 31
Distribution of personal property... 2.22.2. e eee een n eee eee e ee nneene 261
Ditches, drains, etc., rights in.......22... eegeiteatisedeceseccce wasevee 109
Division fences, general remarks on... -- Sinbdes eet cescececcceescuicewesis 144
when not necessary ..... Seinieleieid usiciers/aglee sees cccetesaae 147

Divorce, law as to........ sista ai tonlairccians aSesiknisip wes eaeees leer woeee 426
Domestic animals, injuries by, chapter on..........--.-- Kockucaes wesssuc 164
if vicious may sometimes be killed_....... dcciawsaaccce: ‘168

Doctrines, concerning mortgages........ gJocetestencceeastbede ce weseccs 54
Drainage; law of... 522.0 souecscecsieecccedsscokececnessccccaate weeee 105
Drains, public, towa and county ditches...... sete cdoectedaceses adiagecie: 209
Drunkards, when they cannot make wills. ...-....2.-.0.-. eee eeneeee a. 266
Duties ef employer of help._...........--..- dace cieeeumaedeccetusdes 184
of employer to employe......... Ses ee nw nine ce weincineivinicia woneee 194

of farm tenants............. Qubeeseensesasimesecsane ulatwacataless 247

of fence viewers... .. Sedes keen asiceaneenscs disiowieciisestconiwcises 144

of horse breakers...........-.- seeceeeicn meio aesomaes seetussens 233

of landlord._.... Secrcseoseas See ecceadaeedcaccesesesessesssan. 245

of notary public... .. avieveeeeiancexcecsocia SdciatauesGcecadccscace: 200

E.
far-marks and brands on cattle Se ee enn: -\)
GENERAL INDEX.

Easements, chapter on.___... er RN ca, ie se m8 .- 88-104
as affecting title. 220... cece ae Ss RAAT AS Suter 53
miscellaneous -..0. 0.22. cane cenn ene Pane none sree Et RE 103
what are they .......... Seeeucece cia doeahe tat ak Wemeiees 88

Eaves drip, rights to... 2.22. .2..2.-. 8. okeneawencereesoan wridioieasin wee UI

Effect of unrecorded instruments. ......-...0..-- pat tek ior te Seutvec cussion SE

Elephant, horse frightened at, no liability.......... bed Ra eect mets Seiece; 100

Emancipation of minor, what amounts to._..... So tte ica eS SLeoeureet 180!

Emblements, what are they_...._. Seiwawesklasmis siaicie sialclaiers ap eosscoess woe «(5

Employer, duties of....... maubcusuireses secon levees seuewecueueus wae 184
his duty to employe... oe eee eee een ween nee ne 194
liability of for employe’s acts........2.22--eececececccece e- 199

Entailment, defined and explained_.._........- HeRBSSo Sas o deccdeewawses 14

Escrow, delivery in, explained.........2... Wariewartebecscececmascmeess 44

Estates, administration of...........-... Wbaeeteetest: govetocwendcasdes - 261

Estate at will, defined and explained... 1... c eo ee eee ence ence ence neon . 416

by the curtesy, defined. ....-..2. 2.0... Wusesceucewetossossacwe e- 16
for life, defined and explained_..... Seaeaisioterseeeicvaree mae ee meee 14
for years, defined and explained.........2.......----4--------0-- 15
in dower, referred to._..... ee witcelneathoid gator A pT SN NN Be 16
of deceased persons _....-...-.. Rusbeeescedasastetcacccaces seme 272

Estate tail, defined and explained... 2.2... occ ee een n eee ence ie oogees 14

Estoppel, title by, explained............... pens eenucaeiceccisecvecteees 20

Estovers, owner of life estate entitled to... 2.0.2. o eee eee eee eee ee 14

Evidence, as te boundaries_........ néeadec tenweseoaeneeceeectioceeeeres 81

protests aS....... sdcaweweweteetocbeteisredsosascwsesevene 288

Examination: of tes: su. 2.2---cssdceieeseyeccsceccdeic cence cocesacieus 46

Excavations, dangerous, when nuisances........----..20- ---e----eeeeee 172

Execution of deeds._.......-.....-----0- Suceeebionwacinaneweweceines: ee 642

Execution sales, titles under ..._....-...-.---. wus suumenkeocntemeucceews 30

Executors and administrators...........--.-.- sie eect eteucianicceseacuw ease 277

Executors, duties of......-..--- eeice setae leet eutieciccmoased ctmeres ase 3292

Ex-parte proceeding, explained... ........-.---------- Seeesutwdateess we 34

must be regular_._... senbseeasnosdconteceseuctsas 34

Ex-parte sales, law must be strictly followed __......-------------+---+--- 34

Express license, observation upon... .. Gi tielbise ane ceeemieinisicchecicecosmencic 130

Express warranties, what amount to........ wosse ecu sercwcdacaes! Jeneus 218

F.

Farm animals, laws concerning. ..0.csocncccsccccuccnaccccwnnccsccenee= 232

Farm bells, when held to be fixtures... 02.00. s0 cco e een e enn cern wnecees 75

Farm, boundaries Osc ancecsccces Se eemmecccweeccnacesaaae On enenennoes 79

how to get one from Uncle Sam........-.seeseceeneenneneereeees = 21
leased, rule as to repaixS. 2-22. lecaee sec ee enn neenenns jnesesane 246
nuisances on, chapter concerning..... dvewenecs Sa psnseldeeumcsaess 16¢
products of, purchase and sale of.......--.. senaneesceanatnecsence 204
470 GENERAL INDEX.

 

 

 

  

Paex

Farm, rights on, Chapter XIV . 2.2... eee cence ce necennnes Sescecaes: 127
surveying of, chapter on._....... eo se eaaaes wecnvecen ee -79-87
tenants of, duties, etc...........-..-.- ewsbiewlnceemeewecsesmcccicce 247.
Farmer, his liability for his animals, chapter on_.... swicwaetesesebwotscess 156
Farming on shares, not leasing.._...... Seeseteke bone oce, acdincwacacseeen 251
Farriers and veterinary surgeons ..__.. Sukewasebeteicusevatecscnessseess- 233
Fast driving, what is.......-....----- dieeeguceese eacncscecennnannene 118
Father is entitled to minor child’s wages_..... bsecetscssseccsasteesesscs. 0185
Fees of district land offices.......-. 2-2-2 cen n see ec ccc aeen ee neeneere SI
. Fee-simple, or full ownership, explained._._..-2- a Be 12
Fellow-servants, injuries by, master not liable.......--eeeeeeeeseecennees 195
Fences, chapter on _..._-...-. edacednanseses we cn ccc enw cect eneteenes 142
common law as to... ....-eseee--ee etieciveencisiieeeesccecescmase 2142

along railroads...2. 2222. eee i ee nlacetiera ute Gee <TgS
division___..... siisdoucoches ene eeeeee ecvenceamencencernennss 144
exterior or road... 2.2... seseceetasscn Sensseecsvousewcwseswes 147

held to be fixtures... 22.2 .2.222---2.--e- wecnccenennccnencenee 73

rule as to repairs of, on leased Iand_....._._. eaemancnencnwescens 247

statutes relating to... .. peetarseot wens wan necennccennccennsenes 143

when not necessary.......- seatee lie wmecancccwnsncncenscceses 47

what are legal... 2.2L Le sinseewenscea dchisnineneieusiowssemcec 149

Fence law, applies to improved lands_..........---- Scceesceeccerwecens 146
Fence viewers, their duties..._.- 2-2-2 eee nen neon 144
Fires, careless setting of unlawful, liability for....._.-... 177
injuries from may be waste_...........-- wenceecncacenccccnenense IAI

when property may be destroyed to prevent.....0..-cue--eneceeceee 130
statutes as to setting... 22. gieesocaweeee, eerenns eeececeewtewos 278

Fish, right to in private waters _.....0..cescececee enn eeee suicenie wereeee 134
Fishing, when it is a trespass._... ses Sue ecceees we esecaeeemeecseesosecis 133
Fixtures, things that go with a farm. ... 2.222222... eeee asaceweseececenis 69-76
principles governing.............. SbBacedsbuowaccccdetonsace - 70

growing crops held to be...._...---..... wewncenneecenccecneee 93

fences held to be._...... Wiedliodbehesese Veelceussecetusscacces., 73

hop poles usually are.... 2.22.2... Sacasiesecediare! eucawescesane- 74

rule as to agricultural machinery_..2. 2... -.ecceceeneennneceees 74

tule as to farm bells._.... 222. sisinicneeecesesscarsasuscescewee 7S

rule as to heir-looms, etc..... 0... .ceececceaeccencccccuenenees = 76

rule as to manure_.____.__. sidmcewiees slaesecatsvscsanecesnces”. 96

Tule as to pumps, sinks, etc. _.-..-_.. Vacoieuaece Seeuuaeae via TS

rule as to title deeds... ....2 2-1. dcaseeceeesesccdovecccens: 76
rule as to statues____._. Pakessevacessase Sas Cuseoucnenebesanent' £98

rule as to stones, Cte... ccc ence ncecrccnceerceneucneccacceces 76

Foot passengers, rules a5 to... ees nese nnn ceeeccaencncencccercescens TI?
Force, when it may be used for protection ........-cecsanccnceccsccenee 137
Foreclosure of mortgages, remarks on._... sininicinicavecweeweseccccecces: 68
“tithes under. occceccencascusscectcccacvecces 30

Form of contract of sale... 12 -- eee ec cecenncncnccccccccencceee S18
 

GENERAL INDEX. 471

Page

Form of memorandum of sale _..._... oe say ae ete Ee amaneeias 212
of articles of appenticeship............ Bepesiehe ct de ee eis fred etm aoe 190

of protest... 22-2 eee ERR ee et nA hc A scesowcer 286

for drawing legal instruments. ___ 2... oe cce nce eee enccwue A Eta 346
Fowls, injuries by, remedies for............222. Dee ameae ses ae we--- 167
Fractious horses, do not drive them in streets.........- aise eiga’ eee onceaes 11g
Fraud and deceit vitiate contracts__._.....-.2...2.e Lise aed, SEs teed oe 8
Frauds, statute of, explained... 2-2. eee ee erin team eewcme., 35
Fruit, on overhanging trees, who owns it_._..... brdwia hock ae tea eeshsasea! “A74
Fruit trees, sale of, implied warranty...._.. Seacrest hei rn ti nas Moet beget ese Oe

G.
Game, wild, who owns it..._......2-----2. Gimalgedsisweddceweredecsescer 135
Gates, swinging into street, when a nuisance__.......---0---- weeweceeene UTE
Gas fixtures, rule as to..-..... 2.2222 --e ee MS ei eS, daa Baan Ble a aaa ctearayes 75
General land office at Washington. .....__- Mood Mebwideesececcdteweccsons 3°
General warranty, what it covers_......... Soesescnesss ome wee nnn eeneene 219
Goods and passengers, duties of carriers of....... Seaswecies teedecuamocse 226
Goods, stoppage of, in transitu................ mag danaeaiicosd sas acinar a224.
“ Goods, wares, and merchandise,” defined_._.. Luter lous Lecce auueomeer Hekg
Glossary of law terms_........ Saviasuseosse sae eee enn n ence ence e =~ + 309-345
Grace, days of.....--.-..-----ee te deka fois wiatkis eSictateeiwiececarellcess, 2205
Growing crops are fixtures. __...2....00.---20--0--e eee aeitnernsieccatee 73
Gun powder and nitro-glycerine factories, when nuisances....._.......0--- 71
Guaranty, law as to...... cede Gece Sanoaeeececene Swieddcdaccwatecssecme 434
H.

Hamilton, Alexander, originator of homestead law.....-sae-casceeacecsee 2
Help, hiring of, chapter on_....._....----------+ es siseeeoesees enee-- 184
Heir-looms, ete., are fixtures... _..-----.--.-------e--- eee eee scares 76
Heirs, a word necessary to create fee simple.._... scudeusstessaemeces 13, 51
Highway, cattle in, chapter on.........-... we en ween en nen n neem nen ne 15!
cow yard near, held to be a nuisance_.._........ eeweeeeeneeee 172
encroachments upon, a nuisance..........-.-------.-- eeseeee 170

gates swinging into, a nuisance. ..... sdonestercscccsewesacene E7T
hog-pen near, held to be a nuisance. .._. weeccses Baiajecek ie Sa: 172,

how it may be used_.......--..------ iedaboecessece are cieiwie es 114

water wheel near, held to be a nuisance.....-.-..--------ee-0- ZI

what! iS:10 Pin ccccawie ce cc ceeseaeis wetsie eee cstsices tnenennn bee

rule as to boundaries upon._......---..---- Sescisstembedneaae' 184
discontinuance of ._.__...-..-.--------- Seecudocsessemnosene 126

how they may be used by adjacent owners....-...-----0------ 121

how made_.....---.---- aiejacweppininsicne seas eceecccscicewee 222

lawful rate of speed in .... 2... ccs seeeneccen nen cneenceneneee 118

law of..... wuteatsls Sasueecons std paiteineeee sane ecss ewcwcieiteoes! JNT2

liability for failure to repair. .....c0s--seesececsnsecneenncans 124
472 GENERAL INDEX.

Paex.
Highway, nuisances in._........... peace soesteeseecs med 120
obstructions in __ 223. eee eee ence eee ee wenccencecenne= 120
repair and maintenance of__... Riccictetineeeees eviscesestescens ) “U24
rule as to crossing .____--- eee ceeeee nececce ene Bacvcescsecews 116
rule as to passing teams in..........-- BEN ose a bs See neecians eee 116
Hired animals, duties of hirer... 222. ca cece scene ceccecceeeee caceee 242
rights and duties of owner__.._....--.e.7-0--eee wesoes oe 241
Hiring help, chapter on... eee ee eee ie eeepc eacasscoss: 184
Hiring of animals, chapter on._.._... bs thee ay aR re wah cs tosis wcecee 241
Hog-pen, near road side, a nuisance._....--.-.----asseee eh Cen .. 172
Hogs, laws applicable to... 22.2222 eee ewe eee Seexasucicwnsia 237
Homestead act, acquiring land under__........-..--0e-- séseenccoeseaen 25
histoty-4Of. oo scsceccetohccaccaccscateewesesacstwemes 26
Homestead laws, referred to... 00.2 oe nnn een c en nme eee nwo 259
Homestead land, not liable to execution for certain debts. .........-.---06 28
Homestead right, how released__._. 2... 2. e ee eee eee e eee nee occ ween 39
Homesteads, soldiers’, how acquired. . 2.22.22... 0. -ce nce een eneneeees - 28
Honor, debt of, not enforcible . 222. ooo ce cece cece ween cee aen eee . 7
Hop poles are usually fixtures....... Sscsccvecdcaccueneaseaseseveeecess 74
Horseback riders, law as to... 2 - enc ccne Se aati Ne ca eakeuaiwawee 7
Horse breakers, lien for services....._..2----eeees nen anne weeeee eee eenes 233
nights and. duties Of. cas eecccaleecsstepeseeceet 232
Horses, fractious, keep out of public highways_.....-.------------------ 119
frightened‘at elephant... .2sscseesecacccnacasccosscesesces.use 160
Che law a8 ‘to 2 cece saneigciiccova dees ce wsdeadiocemeusetensass 232
must not be left untied in streets.............. wae neecenwen rene 119
warranty of soundness in__. 2222 nen eee eee ene e ene nee none 220
Household furniture, not fixtures... 0.00002 wee eee eee wee nee een nee 73
House of Lords, members, quorum, etc.....- ..---- eae nce n ew een enone 307
House of Representatives, U. S., members, quorum, etc..........-- eesecee 397
Houses, sidé stipport fot. o.c joes ose vcmcusecemcsecescccenencceececeecsen 102
Hunting and fishing, trespasses while........... Ser cisteesteneeectenese 3133
I.
TMHegitimate child, mother entitled to earnings of... ..-.se.ees--neee neces 188
Illegitimate children inherit from mother. ........22.-.-----.-.-0------e- 259
Implied contracts of hiring... _.....20.----eeeene--- somelwnwawenaece 191
Tmplied license te enter lands_..._..... guieaeWerweudeccctkecendmoceneas 128
Implied warranties 222... ee ee ee cence eee eee w nen ce enone ene 220
‘mpounding animals, law as to... eee ene ee Kunscecceduih deme, 165
Incidental questions, in debate _.. 2.22 eee eee eee enn e eee n eee 299
Incembrances, covenant against in deeds. _.. . oon eee ween enn eee 42
Infants, their rights when hired out._.....2 22.22 -- oo ee eee eee ee suites 185
Injunctions, only granted when there is no other remedy_........-.-....-- 181
to prevent nuisances... 2. 2 e eee eee eee eee 181

Injuries by defective machinery... nk ence e eee cence mee ee nc eee 195
GENERAL INDEX. 473

 

; Paex.

Injuries by dogs, liability for... ooo. ceneneweecce-----enee eecevee 169
by fellow-servants, rule of liability .........-.-.----00« Sesenccas 10S
Interest, clause ia mortgages.___. 2... ee Bic as seater no at eed hectare 60
compound...---..-. eee l eee Bi cence Sees oeeetes secceswscus 62

legal rates in different States... .. Baise alae Ste ac satee 61
Insurance clause in mortgages_._-_- 2. ee eee c ene pbcetinalsas Abele 59
Intelligence, amount required to make a will... sidcveneageetacsecesss 266
Introduction of business in an assembly... 22.0200 2 22. e enn enneeeceneene 298
Insane persons, cannot make wills__.... 22-22... 2 --- cna ceceececcee 266
Instructions for getting land from government, how procured. _....-...---6 30
Inventory, administrator or executors.... 2.2.20 eee eee ee eee een nee e nee 274
Netipation, IaW'Ss 00.5222 ccedidcoscccecceucteneeeeseuadeesseck oe evee 108

J.

Jurat to affidavits... 2.2... seecetesUedelendenedesees Seexscecevate: 282
Jurisdiction of notary public........22.2. 2... esnueiae cases siveesediee 280
L.

Lakes as boundaries.........---.0--20.--- 2-6 senwiascesecan sescesencee 83
Land, amount mentioned in deed not always binding.........0..0.---eeee 4!

certificate, when may be assigned.... 2.22.20 eee oe epee ene en nee 32
contract for purchase of... 2. oe ee eee ee eee eee nee eee 35
described by metes and bounds.._. 2.20... 0 ee cence nec ee ee eee 4!
DistuctsU.)S-) numberof.) hie Bee a we chose cae ue cs 31
fees for obtaining at District Land Offices...........2-.-eeeese---- 31-32
how to obtain by tree culture... ... 22.22.22 e ene eee eee en eee 29
how acquired under homestead act_....-.2.--------------ee een e ee 25
how the government acquired... 2.22.0 ---2- eee nnn eee e eee eee 20
leased; law: conceming s «cae ssosswiesiwinwinsadaveeceasecesccsceiews 244
mineral, how obtained_............ getteweieceeceece cece cusees 30
office at: Washington. 2 ooo cecccccwamece ccs astsacececusceoscecce jo
@thce, feeb: cee eke l cose ka eecistedeee niet otewotoeeus 31-32
patent, refétied tO). coe ciccesn ast ucecinmaeinsnnw ecg secede sewanee 22
patent, form ef co 500 soetecs cece csupcusictessesscceccascaneaws 33
purchase of, precautions to observe... .2--- 202-22 eee en enn en eee 34
purchase of, from government. _._..-- 2-2. --2-e-ee cee nee e een ee 21
pre-emption: of... ace ceecctie wen ce nscacceceawensecceesaeceues 23
sharksvand: tax: les) cc.coocsscsctas soadsdceoaassccuatabsstesee se 207
two ways of obtaining _. 2.22222 o 2 eee eee eee ene nen eee eee «617
quantity of, as determining boundaries.........2--.---------...--- 81
what constitutes possession of... eee ee mee eee ee ene 135
what this term includes._.......-...------ aieiebweccedietewece scien, 9

Landlord and tenant, chapter om . 22-221 ee eee nn eee eee 12. 244
and tenant, collecting rent... -.-.--- 22-2 ee ee eee eee eee eee 248
and tenant, law of waste important to....... ciate Sigalata ha Swieiate an «138

‘
 

474 GENERAL INDEX.
Page.
Landlord, must pay taxeS. 1.2... -ccccnnccnccecccwcccaccoteccnces aenee 245
title of cannot be disputed by tenant........-.s0-c0----eeeenees 749
duties of............... sistaasaceces wkddecetecdcccScicmsecewes “248,
Lateral support as an easement... .cccccceeee ne ew er ccecweneenennwecee 99
Law applicable to hogs.........2. DN rl Fodor daca metho eaten ae 237
as to apprentices...... Wadesbiniicesccaeectecces see cwee een nnnnene o- | 188
HS00 BiG e ck cee ay ata cata a! Sosa cw ene esceee ug spcialea ime wale eis 91
as to cattle generally__..... Scdeecteseescoees comes ecdee weesnwnee 234
as to cattle in public streets........----- ener ewe ncn wee ene necennee 155
as to descent of property...-.....-. i Wieeiiidelaa ee eee VcsWisnnwcaes 257
as to foot passengers... . 22. ...e-20----e- scarecnncanencemcccenes= IIT
as to horseback riders_..,..-..--0.-en-ecnce LdkbboWdcwe snow wandewd yz
as to horses..... aa gahewceskinwsce tdci scetwases enn asain mieiute - 232
as to light_....... secok Si eSeewasewe weeoesobawserssesessescceses 89
as to real estate... pe cence cenn cece Sivedow Saccuwe' Sisiuwiericecce 10
as to sheep --.2.2.....--e- eee wewscenccenncene secseiciietseences: 235
definition of..........-.-..200 S25 occweseeeee se Seine Sisisleseis 1
license to enter upon lands, given by_...........---0-- seccismenmese 128
of the road__....-.--.2e senwivleegcees ee SoC mawuile wine Siccinmiuain eonne 112
of sales, chapter on........... dea e wn eewm sais itioaares ee ere 209
of wills._....-.. sacestes Ssticesioersesoess Secsucwessins wan nneenue- 264
sources Of........-006 de eeSsassiecessssecsecs eo Sciewseceueosow se 2
terms, glossary of......... Sebaseecceete ssaccces nee Giecsscmaniat 309-345
the common, remarks on__..... Geredaacoe kes SusieceSseccoseaccs 3
where land lies governs deeds........ Sissiseien we memennciewsisceSewe cs 37
changes in, affecting title... 2.2... cee. e ee eee eee eco eee eee 52
concerning farm animals, chapter on.......-...... seeeceresoserses 232
Leased property, rule as to repeirs...... 2. eee ea eee weeeeescecscceeue w-- 246
Leased land, law concerning......-..- 2-022 --ee see nec enenenee eaceesk 244
Leases for mining purposes, easements concerning. ....... 22... eens we. IO!
verbal, when valid._....22..-.2.eeeee wauteas avcessueuccuews wne- 245
when must be in writing... 22.2... eee ee eee ewe ee Saeees 245
Legal fence, what constitutes_........ eatselcesesecses esenswsks aceeececs 149
Liability, of master to servants.......2.2...... ecdudeceteseleccasatcce 194
of carrier, when it begins____. 22.2... 2202 oe eee eee ene eee 228, 230
of carriers, what excuses will relieve. ..........--.20. aed Oe 231
of carrier, when it ends_.....22 2.2.2 eee eee eens 228, 230
of carriers of persons.....2..0..... ncaa Siewckuea meee ae 229
for animals, chapter on._...... Sesecdsdowseees sxseavees Sewers 156
of employer for employ2’s acts... 2... cnet ene e Geawesecs2c 199
for trespasses upon lands... .. ‘Wecheeweswattec sce sasdceseetecus 132
for injuries from unsafe structures........2_222. eye tae ed 173
of farmer for careless setting of fires_........... wecitescse socess. 478
License coupled with an interest in land_..._. iin does pceibowmuncmuecesests 131
express, remarks concerning. ......-.--.-....004 nigveweincmecice o. 130
to enter land, implied. ...-. 2.22.2 e eee ee seeesceceseses 128

Lien, agistor has none at common law......0. -.ceccnccanne
 

GENERAL INDEX. 475
Paex.
Lien, of horse breakers for services. ____ Deletes bocnccecsevabnex 234
Light, law concerning. ...._._... sbi eiewobeluwerebucwte Svacecuseseve: 89
Limitation of liability of carrier....2.22 2... ll. blair helen St pasate 227
Limitations, statute of, referred to_.... 22.22 ole Wotetnumeee es Dae
Lions, tigers, bears, etc., is it lawful to keep them ?_.....-.-. cc ceccec cece 159
Lis pendens, notices of, effect upon title...........2.0.00- wosede ae his wiee 47
Live stock in the public streets........... ei dbwasetoerwccescseweeteseae: 151
M. y
Machinery, defective, liability for injuries by... 2... .cacccccacccceccece 1988
what is a fixture..... eiicsedind sinks Sbecioceskeocceseeecenes 75
Manure, composted, rule respecting. ___.... Scieeeee iaes scesesdecesscsce: 139)
is usually a fixture_.__ 2-2. ne eee eee eee een sesesdcevess 74
when removing it constitutes waste.......... avdaatat Sika cialis ieee 139
Man-traps and spring-guns, must not be set......--..... sivediseitereseses 158
Marriage, law a8 t0.22sssccesosciccesneccccecsmauneewsccdcesssesusaece 442
Marriage of minor works his emancipation. .... seis boudoecesedinceelecs 187
Married women, deeds by................. Soauscwecemcowhecweodeceuse 40
“Married women’s acts,” referred to... 2.2.2 -e-cceee PILI SASS. wae 40
Mass meeting, how to organize... 02.222 cnc ce cee n conn nec nceecnse 292
Master and servant, law aS tO. - 20.222 ene eee e nee ence enc ece éeeseecuss 184
Master, duty of, toward apprentice._.__........ ecwiceeaies Giemsa coe csews. 189
his liability to his servants... 2.2.22. cece cne cence acne cee een enee 194
Majority vote, questions that it will not decide............ esesesceeecesee 307
Meander lines as boundaries. 22... eee no ee eee cece cee nceeenee 86
Meeting, township, rules for 1. ..0. 0c. cen eee ceen tenes cen nceneee ae reales 2C4
how to organize_..._....-- acbeweneecisicseccen See ere 290
political, rules for _.......-........-.- esocsacsesan Bases cso 292
primary, how conducted.......-.-..... svasoacacaseccs eeccoes 292
Members of deliberative bodies, punishment of... _. sieileldeetoseeceseecue 306
TIGHtS: Of. isos es wesc cuemreutaciosemceee wee. 300
of ‘societies, (trials:6f. c.5 secccwasesccwcwccciuswaacicecenccaws 307
Memorandum of sale, form of. .....-..- 2-20. ee ee eee e nee eenee- eee 212
Metes and bounds, description of land by......2...2 2.2. ene eee enn een 41
Michigan, method of arbitration in _..-..... Ss sochacaevtieracieiioes 254
termination of tenancy in..........-2 2. eee eee eee eee ee eee 250
Mining claims, remarks concerning__......--.2----0----0e------ sees eee 30
Mining lands, how obtained from government_........... sviwewieaeaness 30
Mining leases... 2. 222-0 -- eae ee ence cee ean e nce en conn seen ccncs nance 1or
Minors, contracts for labor by... 2.2... se. eee n ee en ee ecw eee een seen ee nee 185
who owns their wages........ senanie weenie disisinisnae see clears ses 185
Misconduct in the road... 0-0 eee eee eee nen ene n een eee Sinecenees 119
Mortgages, assignment of.............- eebs Se meinsdn cieenmeweccecse see: 63
chapter on, begins. ......-2.2--0---0-- eee ceee nen ene tieiciclaiciata 54
definition of _. 22... 2 ence enn enn e tence een w eee e ene cen eccecns 54
discharge:0f 2..:250icqmwess sees cmosecseee ken cececeacsees 64
execution, delivery, and recording of........ eieecee Sdeswioesy 59
476 GENERAL INDEX

 

Mortgages, foreclosure of.._... icin Aas peeeeeunyescwsteeesenese
insurance clause in . 2.2.00. .cecuscneceecnacescee Jacweceicee
payment of.......-.-2... 22. e ee ceiuaeals Seeenees sececes wee
power of sale in.....-.-...2.. esccnicn cele seeeeesese weccccces
redemption of....__........ eiieeieiate einiviaiscieccueecinwenes oesue

Motions, questions, etc., in debate.........----20- siecewestestseeees wes

principal, enumerated _.... go Soeewer, piccaseceeteeecenee wecee .
order of precedence of_......... wiccewacsetececs, aviedeseseceece
for reading of papers.........-.---- esecescue eassccsssees nese
tO:GMeNG oi oS escoce ciel eaceeeue ites wcseesessiccen's aneee
to fix time to which to adjourn........0...-e0sceeeee asecsees 3
to postpone to a day certain..... seeswsesecoses Sieewes CSoiweown
to postpone indefinitely____.....--..-...- seeves ee neccavccrecce
to reconsider... .. wiccecece sseecesecadesecee enececcocs weesewe
to refer to a committee...........02.--2- ene esbecssese secnewee
to lie on the table _-_. 2-1... 22 ee ene ee oe eneetcceeecreesan
subsidiary, explained -.. 22.2. ..22------ ce anceencnaceenncnee .

Mother entitled to minor child’s wages if father is dead.........-.... esess

Monuments for determining boundaries........2.....200 secnvoctsecssas

Moving buildings through public streets....... wectcusessescs Seeecaececs

N.

Necessaries, contracts for binding upon minors.._..- ekeee ccees nine ecenser
Negligence, contributory, excuses for injuries by animals_.__.. aweewe swaeas
of carrier, evidence of........-.-...--2- swacieessadewssaces

by owner of animals, makes him liable_.... Ses cetcccccecses 7

Nets, must not be set across streams. .......20....-0c- seeusceus weemeece
Notaries public, chapter on__..._...2.2.. neteeasuces woeees atieeesecws ie
duties of... 2222-1. Sulecucceceuss ieee os wenesecess

remarks on office of... eS sitintinseasctesdeccuennsecensces

jurisdiction of.......2..0.. eesees Saeeosscue meccecccns

should have seals. ...2...0--cenee Muacwoswatenneder sce’

liability of... 2... cece eee cence coe ececs cs:

how to become___.___... sidscceceswsl eo iw eceiwenee

qualifying for office of_......... ecisdiweceeee ee wees cwews

special duties of......_.. gecesecsesecescueeecwes aesece

Notice, of protest ......2.2....00. es oaeic tisla Suis eeats seecews Skaeses

to abate nuisance... 22.1... eee cee nn ene SeWaeeseaisSeectcecce
should be given to trespassers... 2.1.0 .ca---eeceecccennccccuccee

to quit in Michigan

Nuisances, on the farm, chapter on_._...._...... beth vesesidncccue ee
Judge Cooley’s definition of. ....2.0.2..-02 ce. eucees aienbeset is
kinds of._......... Hesecodecus SWieSeeoewieaeacwowwnes wacueoee
sbatement Of 002002225 io es sccanccsisiae ceeesccos atecesceces

abatement of in streets.

ane eesenanattas au msasasneasaneasnanse

Paen.
65
59

298
298
299
gor
302
299
goz
303
303
302
301
298
187

80
114

157
230
157
134
278
280
279
280
284
281
279
280
288
287
170
134
250
169
169
16g
179
GENERAL INDEX.

471

 

Nuisances, action for damages for........ isa ta eee 2a ae eee ekcss
dangerous excavations may be... ...,.cccceeccece-cece Sad:
injunctions to prevent... ...... Sdelec ceca cuescwebens'dahes
in highway, what constitutes. .......... cece eucoe ccniswenleees
BR Streets koe ss Sot oueaeeueee saenG Sais eek weer ss
old and unsafe structures sometimes are_.... seecksiesreis: éeosees
privy vaults, cesspools, etc,, may be._....... amen aeveneceess
remedies for... 2.2.2.2... MeectecesSes eksdQenewenccsouade! ns
everhanging trees. ..._......-.---....---- fate aS eseuacwaes
steam whistle near public road held to be..........--. ewarsvee
when private person may abate..... eaters Seereeiiete seiesenes' 7
who responsible for._.........-.----e.-.0- secccecsestobuces

Nursery stock, is warranted to be of kind sold for.....-..--cecececcocceee

oO.

Oath, how to administer_.._... Ssces aasie ah anenueaseuewuswsorsousees

Objections to question in debate_...........-..0- Sascwees en naw eens neces

Obstruction of ways. 2.0.2. cece ee eww nce wee enn eenne noes aus

int highways: 1... 20sisn6sesecsncecesccces Savie a cecoaee a)

Office grant, title: by co ce cic: oesoceecw se actemescececcececdecdcesesccs

Officers having papers to serve may enter lands.._...... ocieceee melee weieieis

Organization of a meeting. .__...-_.....--.-.-..-------- webedcseswocies

Order of business for deliberative bodies.........-...-- siivenes See seesans

Overhanging trees, when nuisances. .._......-.---- eeekceeoctiecawes owes

who owns fruit on._...-......-.. seeevecsves wcieaceesis cone
P.

Parliamentary practice, chapter on__........ sicceseccssus Sass ewossecicns

Parel evidence as to boundaries. .....-. sieseonseeccd Shisewevsdeasesteews

Parties to a contract... 2... ne een ene eee e ee ne ge edisew nc ccmenicmenteindicce

to deeds... 2... ..2... Seadcnecmmine'cine owiede enn eetnewcecerennsace

Party walls, law as to......... Swes chine wetee cewEeSeeemshace, eeee teens

Partition fences...._.... edcssaceahe waren HeReetocecesdeedeccdewsesd

Parliamentary law, sources of... 00.222 -2-0-- nee eee eee ence siceeesee

Passage on streams, right to....-... ab enisewieaceaeecsc cesseadeocins siceccie

Pasturing animals, law concerning. .......------------- eben ocmssiceeedes

Passing in highways, rules applicable_._....... wene eee ceeecareinae seneswed

Payment of debts by administrators__.... wow wre anenn nwo renee seteawees

of mortgages ._.....---------- saesieeeccoseserese sicvisemaseece
of commercial paper, place of. .........-.--- dsecceuetocees caw,

Permanent society, how formed_.........--------- seceess Sc ineiseincisisig Be

Personal property, descent of__.........-.--- ee eewrecennseee sane e eens

Place of payment of commercial paper........---. wet earmemaneccnewnccs

Political meeting, how to organize. ....---------s-0-----0-- menereraccne

Ponds, slough, swamps, etc., when nuisances.......-...---0- waicisiselewoees

Power of attorney, remarks concerning......-.---------- sacamieesecsinwss

Paan
181
172
181
176
120
173
174
179
174
172
129
170
222

282
300

99
120

33
129
290
3°7
174
174

289
81

39
102
144
290
III

449
478 GENERAL INDEX.

 

 

 

Possession, acquiring title by_...._.. aiesscee cued weckin ReeeeereaweecE Nese
exclusive right of to farm._............- enw ewww ane nnceeeee
how it may be regained.._..--....-- eiisaiesinsacmacsessseesess
of land, what constitutes............ alee aisiaia weeeees weemerece
of lands, protects all rights........-.--- a eta eenn wee een nee
of property, may be protected by force. .....------0+---+- eens

Power of attorney, requisites of.....---...---------- ere reer r or

how revoked__._...-..-----.-- we cee new nce e neem ane eeenccrasens

Power of sale in mortgages. .... pie wetsiers wiascsaubesembcweinemciawecce's ss

Power to tax limited_.......... seas oen si aetsvece sees slecicicieweceeceenee

Pre-emption of public lands. ............--.----------

lands: subject to... csc encnenes ces cis cance
who entitled to right of.

Prescription, title by, explained___..-......-.--.-. meee we ncen eens ncerene

as applied to streets_.........--------- cece cccwwnenenwnccee

Previous question:....-.<-cnesnesienccie cree <6 ainersiiatels ow ec ec cenncnnsnce

Principle, a general, running through law_.... scisie cde. asenecsesceseress

Princip=] motions, explained__._....-..-- wemecmeacee asics Saccccisseeeescs,

Primary meeting, how conducted_..,-....----- samimeees: eeGcoe ns geeteues

Private grant, title. byiccocso2sGensceebeyseccenesin sis dceniseceeseescescss

Privy vaults, cesspools, etc., when nuisances.__... Wadisatcwecesebecewcesee

Probate court, remarks upon._-.......-..- Bie SieRiaaiadcee,

Privileged questions, enumerated_.....-..-...- dccdbinienseeseesesereeces

Promissory notes, referred to....---.. Da Snieacesececewe Jocceccuws

Property, descent of..........--. Ligedeccinemababeene chase dececouccces

Property in general, how divided..........--..-- aScoseue Swicsiesisseecies

personal, distribution of.....-..-..---- ecesees ieendeeceseceess
ways of disposing of at death._... adeoe ser denteesteccecece ees
when may it be destroyed to prevent fire... 2.0... eee nnecceeccee

Protests as evidence.._.... wininisPidineciminelaicmsiaieies weed eceameeind secjmecws

forms of._...... sceeeniismceeclaiees cceepddecisee ease cueancmsce
HOUCE Of: sc SueCc ews le caieecwemcwtetact sabe kecdccadunscanese
shipping, explained......-. sia Sisicleaiieis ta Seis oe Piaeisle NGlewatemecioe

Protesting commercial paper_._..... aieeeeinls Sew eared Opeicwrcisuiewenticese

Public drains, town and county ditches_......... Score he eseeesinedceeiciice

Public grant, title given by government....__.. ésesuseseabbeueeciocwasene

Public highways,—see highways, streets, and roads__..... Seictaisactasecis, <

Public lands, how obtained by government... 2... oes nen ee cw ween neneccce

Pumps, sinks, etc,, whem fixtures_.......-0.....0-2.00- sisieaigaececie'sisic wa:

Purchase of farm products_..-...-.. siecebeeceswoecececen, eS swiamelaicacicg

of land from the government..... siectewbeeeeswbecrescwesceces
of spurious seeds.........--- os eucowscn/sedSencdessecsoatesee

Purity of air, right tO... occ ccsincceseacwnsdsenwecnnscccmeseneccscncsens

Q.

Quality of goods, when impliedly warranted __... eeweeewe ce sdeccecsscses

123
301

298
292

34
174
276
299
285
256

261
264
130
288
286
287
288
284
109

20
122

20
o

75
209
21
221

gI
GENERAL INDEX. 479

 

 

Paex.

Quantity of iand as indicating boundaries. _..____. So ete nat oe jhe h(i By

Qualifying for office of notary public_._.-..2 2. 2-2 leek. toda es cececce 280

Question, the previous... 22.2... eee ee cece eee eee nce e eet eene escone ol

Questions, incidental__._..2 2.2 eee eee soedeus oeeeuc oes e- 299

in debate, privileged..... 22222212 e eee a inicio eee waneeee 299

motions, etel, in debate. wwiscewc cece ccwcaccs ooeadsecentocene 298

Of order in Cebates 2226) cuisn roc coun esd cecem ees see 300

Quiteclaim deeds 5 j)3 soo bos cemceseniocecacoweee eta shccesecss 41

Quorum, what constitutes... 22.0.2... eee eee eee hid wins ninnioiceis Ges - 307
R.

Railroad fences, statutes concerning 148

Railway companies, liability of... oo... eee eee e ee eee ee eee cece 229

Raising, crops on shares... ooo ccc cnc ieeesccewetaccdecccumceoen 251

Raté:of speed in highways... -...-onsssemsescceccnneerieecensie sees oc cien 118

Rate of wages in absence of agreement... 1... cote ee wwe eee ee pase ee tenet 192

Reading of papers, motion for__.._.....22.222.--0---neee wamwiceckinsse - 301

Real estate, acquirement of, chapter on_...2. 2.020. --ee seen eee ne eee Sede’, 17,

in general, chapter’ on. - sc.c6. 5 soe ccesssinwectc nda cise as 9

law of; ‘generally. <)0 Jocceecbanccwcncsmcuaceneccucceetcwane - Io

ownership of; degreésiOf ..cco5 sos csenceeedosuad dhascavasohee 12

tutle*to ;kinds of 57. ucccccnccucudecedccwascsst ibsateoos cas: 2

descent)Oft cick Ge coe bow eck sous Cocke scaeascecc gases 256

Recording of deeds___-..------ S aicte ater la ale ataleteiaiacinieiare ale siaisierctclows eae 44

Redemption of mortgages ._ 22. ---- eee eee eee eee eee en ee ee seaseusat ae 65

Relatives, rule as to services rendered for. ....-..0.---20--- ee ene nn eeenne 193

Release of dower, how accomplished.._....---...----------- eueseccce ae 49

Remedies, for breach of warranty... 1.2... een cee e eee wee nee cence ene 223

for NUISANCES 2.c5.2sccciccad sens eencccn scaeteeesesencesces ase 178

for vicious injuries...--....--.--.------+-- siajaisa wbieSins Se aee es 167

fOr WAStE 2c oc lata wehbe cr eeawuceieeestecesacewceccecees 14!

legal, for injuries by animals...... saeeecee mete cle <tes Sieioseiarctes 164

of buyer of goods__._..... wawesdpeeesesseemeceenaceu wesces 225

of seller of goods___. 2.222. eee eee ccc ee eee omen nn ewe en cee 223

Rent, methods for collecting.....-..---- 2 cia mececedarwcic cnosccemaceocs. 248

Repairs of buildings, general rule as to.....----.-- Hesceeewmcinmclccessis 141

of leased property, rule as to. ...---------+ 220-22 eeeee see Scala 246

to fences on leased land_.._-..-.-..-.-- uesceneccaes siatewelniictec sas 247

Requisites of a contract....--..----- eee thee eee eiwmene 5

of a deed_.....- Jubiddesossecsensouetasse sarc micice errr see. 38

OF Will sic ccs Joccticedacnnesoce wees see sesioes Seb eieieeeiste 267

Reports of committees, how made......-..--- Hghodusiecasuasessaassee 304

Revocation of wills........ ---------- sSauicuensecutwesies eeooeebiogeeie - 270

Rights of exclusive possession of farm.....-..---------- semvaniveusenes 127

in the road, chapter on........---.------- weiene ces eacecie wevetcns 11?

of adjacent owners in streets......----- Swe ce neem ecwelsiewan weceesis gi

33
480 GENERAL INDEX.

 

 

 

~ Paee.

Rights. of buyer of goods_..._. 1-2 1 ee nee e nnn n ene deseevesigcess eee- 225
of members of deliberative bodies_........--.+------------- ereee 300

of owner of hired animals... 22.22.20 eee eee e eens wasiosee 241

of seller of goods. __. 0... ec ceee nena ne nnennceee siseimataiascias wsesece 223

of way, law concerning....__. 2 ceeeee neu neeeeneeees eh hd aha - 94

On thé farmytatsce wt cece kodwencccaecaes waieceocecmmecess -- 127

to eaves drip......_.. sa cGa nants eranaiyss ora Dray Satatcaatarc variate mia wi ayoie wietel ate mCNcieiey WI

Risks, assumed by employes..........- steennccceee wicviceeneceenes 195, 197
not incident to employment. _........-2.------++ ------ enreeeee 197

Road) fences: along: ..2...c-ncccccsccseeacesaneresctenscee weeees wenenee 147
rights in, chapter on._....... eanoeue eEaeeseeess Sceu sche eeeeeee 12
how Wade 205 clock ce cetececinnetcccc swetbecewenscsne eeceece 122

Rules adopted by carriers........ Scusse ete wseeceseus Ussodcecaceseee 231
as to gas fixtures......2..-0-ce0---- Last has eke Ue (accede. 9s
for deliberative bodies... 2.22.0. .22-- eee een eee e een eee eee weeee- 289
of conveyancing should be known by notaries......------------ wcce 284
suspension of, in debate... 0. nee nne nee n ene neeceeenenecceecees JO

Ss.

Sales, law of, chapter on... 22.02 cen new cence eee n ec ececceecen ences o--- 209
contract of, form of_........-.2- Ben eat eawstieeecueescccoses -- 22
memorandum of, form of_. 2.2.2 c ee eee eee eee nnn wee e eee ~ 212
cases where title passes at time of contract__-..._...--- svedcacs acee 216
cases where title does not pass at time of contract......... eneenee e- 215
of bad seed, who must stand the loss... 2. eee eee ween enee woe 222
of fruit trees, law concerning._........ Wiwceccassaccsaccts eases - 222
of lands for non-payment of taxes.........2.--0-- dieeveucesectte - 206
of thing not yet owned by seller_._.2. 2... .- 0 eee nn een e eee e eens 210
of wool, “ caveat emptor” does not apply ........--.------------- 236
Upon Condition: 2:32 teeta eens tas eweeos 217
a weewsecass Bae aeace 210

“« Sale or return,” term explained .._..-....-.---. Sosscncecsccoes weccwa: 218

Sea as a boundary... 2.2 ee eee 83

Seals, well for notaries to have 284
when and when not necessary....... sisiesecec! Siiiceewia wetiedesaeed - 4

Seeds, spurious, purchase of ......-..--.--4 Behe eae estes ae eee 221

Seines, statutes forbidding use of........------2-.-- aswickicesceeesaece 134

Servant and master, law asto__.._......----.- Baewerktcnmascuewes wennee 184

Services, when rendered for near relatives, rule___._ Cwwaciceeacsiaes acuee 193

Side support for buildings .......... Seetea onetsectesececeeemeeeee tees, 102

Signing ofwills.. 2.4 weuo26+cseccunscassmesbasetaseseceeciccocweeass - 268

Silver and gold, mines of, who owns_.._.._.- eee a Plas a eevetua ~- ‘Io

Sheep, diseases in, duties of owner _. 22.2... .2eeeee eee e ee en eee eceecee 235

taking on shares... 2.2... cchia/awie weewieencte es cesumeceeutecweses: 1296
special laws as to._.....-----.....-. ween meen nec wwee cane cenes 235
Shipping protests defined. ..__... has tease twee e waeWodaecuscudsecucsce wo «388
GENERAL INDEX. 481

 

 

  

Paex.

Society, permanent, how formed... 2... eee ween ccceccececceccecne-+ 294
Soldiers’ homesteads, how acquired.._._..2.- siveutsoue infra ci eiccssecwee 28
Soldiers, beware of swindling land agents_.._..2.---------ee ene ee eee ee - 28
mourees of JaW sooo eect cet oa sus ead aedesaaeetecceaee 2
“Sound mind and disposing memory,” meaning of.......-.... weeeeeess 266
Special duties of notaries_.._.__... eae bah est ac Morte Sucmecomene 288
Speed, lawful rate of......2.2.02-- 26. Sete ERI IRAE Ded htt chen arias 118
Stallions, special laws concerning.......-..-.--- Hei EL cee noha ya eae eels 233
State constitutions. ...2.2...--¢.2.2.- 7 eee SII oe EN 8 Seal SE i e 2
State statutes.......2...... ee eaeeees ddetenecccdudeecbeccecsceecosss 3
Statues are usually fixtures... OEE LL SC 5 Sat FREI PG al De ch a 76
Statute of frauds explained... 2.222. oe ee ee eee ee eee een 35
asiiaffecting! ‘sales 2422 ctcsecummsciteecececeececeuses 211

Statutes of limitations, referred to_......- NE SL aaah el NA Oat Besa IER - 418
Statutes as to descent of property...._... Scmin smattedvewscetees sctecese 256
as to setting fires......0.2---0..-e satenugeesonsececececseseaes 178
concerning arbitration__..........----- i 254
concerning railroad fences..._......---.-- eeiciccioueecesece 148

giving liens to agistors.....-...-.. scariest fucassctatabonichad cacdakce ys Gaveasuan 239
regulating fishing rights..ccsccsse sere cussiesnesnecesconcesece= 134

relating to wills.-- 22s. cs0. ccesec es ceneresiceececesescesess 265

relating to fences...-.......----------- Scaccceeseee ie ce taestes 143
respecting minors’ wageS.._..----------- no nnn eee nee nen eee 187
respecting cattle in highway__.__.....---.-+-------- someusecces 153

Steam road engine on highway, not unlawful__......-----.-------- succes 172
Steam whistle, reckless blowing near road, a nuisance__.......---.--..--- 197
Stones, éte., when fixttires. occ. cocceconceseteesctesccnekeoestienes c= 76
Stoppage of goods in transitu__......----2------------- ee eee ee eee ee = 224
Stopping by the wayside___.....-------- 2-2-2 ---- een e een eee - eee 118
Streams a5 boundaries. .cncses cca sec cece ccnus-sedteswioncerscaesese 82
Streams or natural water-courses.._..---------------------- Satvessin cues, - 106
right to passage OD___......----------- soteecesis Bee seedesesice II

Streets, discontinuance of..._--.------------ iecic ata iiomtciearemees een oare 526
how they may be used.___-...-.-------------- etisiswow uence - 4
liability for failure to repair .....---------------------0---+ seoesi N24

made by legislative authority.....-.---------------------------- 12%
obstructions in._.....----------- eodeaoue ose ssee esas wowace 120

repair Of... 222 -- ee een nen eee eee nent e reer nenene as 124

rule as to crossing them.___.....----------------------- 22-222 116
stopping by side of..._.-.----------------+- 2-2-2 ee econ eee-- wee 118

. use of right of “eminent domain” in making. .<cccosesecenue Eiesas Mee
Subjacent support, an easement_.--..-.- spees tien csacer ses ecinnwoeasesess 99
Subsidiary motions, explained... wokeeenedewsccscee'setsee see seaice ---. 298
Support for buildings, an easement......--------- escues Biscsscenccessce: 100
Surface waters, rights in........------ sicasmianebiaewecece soseuee, weecces: 116
rule as to ownership of__...----..------- suicwnesssee ere 105

Surveying the farm. ic scecrcucecmmnwseesaacsh-cr en decdeawsswercassene<J9-87
482 GENERAL INDEX,

 

Pace.
Surveys as determining boundaries........-. ersicccesees weceeeacee we «685
Suspension of rules in debate..-_........--.- eeebeeer merce enrnnnceee o- 301

Swamps, sloughs, pools, etc., when nuisances. _...-2-~-----------0-2-e08 175

4 te
Taxation, chapter on.......---- diceenednmesasecous weeneceneacesence-= 202
devices for escaping it--....-----------------s-e------eee «-= 203
exemptions from... = 22 as scnccccccccmeccecnecesncceses a-- 202
falls mainly upon land 2.< jcccoec econ ccecaeeceooracceceseses - 203
principles governing power of.....-.----------- eesace siscices 203
Tax claims, etc., as aftecting title......-.---.---.-- ccuemeciewacseedes w-- 52
Tax deeds, why so often worthless.._._.-.-.----------- Seiwa etewecs e-- 34
observations upon..._.2----2----------- = dota stouless: --- 206
Tax history, necessity fori. cccccc owe can scence en wnewscgceesccceessssece 52
Tax sales; refered tos 2soc me cacieenaeuineesieese iced oseedeeus sige pees 34
must be regular, etc,.......---------------- seebeesses eaceeee 206
Tax titles, land ‘sharks, etc:...0 202 2-s-ccsss eos ese ccseseccescs eeccee 207
Taxes, definition of_._...-..----.------------ +2 eee eee ee Secioeeae eace 203
are they valid? how determined__.._.....----.----------4-- esse 204
if paid cannot be recovered_._.....--.-....--- Souaesesesames] oe. 205
landlord must pay...-..--. wspdses seusteseeboeweestecceececus 245
must be for public purpose. ...-.-.----------.--+------- omeswcem- 204
must be levied upon principle of equality......-.-_.----..-2----. - 204
stipulation in mortgages concerning. _..._.. Peseeocdaaseess occ s 60
Teams, traveling with in streets._........-----.- daescsversteccssad wees ING
Tenant, and landlord, chapter on_........-.-------------- sebnsccubicewe, 244.
alterations that may be made by_........-...---..- weeboccpeoswe 248
Cie Gl vadivurewsibes buacehinwemee neni aimee eGiceesnerness 247
must guard property._.......-----.---. soscweseee msorsimieencien = 249
what things may be removed by_........-....-------- eeesieces - 249
Tenancy, termination of_.........2-..-.------------ Suigaciane ee ee - 250
Things held to be fixtures..__.. ha as She pega ce i oh stebeanonodal sli - 72
Timber culture act, history of.......22 2.2.2 .-eeeneeeee side eiemialetelaicctwis sien 29
how to proceed under......._. dabivcccacsveieseues tem 29
Title, abstract of, necessity for....--..-...------------. ese cmbaceeeiens 47
by private grant. oc2. ac save siewcieiciewacec ne weesaus sisteininwlcisieeiseie 34
by prescription, explained. ..........-.-- eescaerees si seserseslaent. 19
by estoppel, explained___......... Siwpineesericcemica, Scusaceeaaces 20
how acquired by possession. __._.-.-22.2-.-------- aizaees Sadessaas, IS
of landlord, tenant cannot dispute.._. 2.2... .ee nec cee watitdacocns 249
to real estate, kinds of__..2- 2. ee een Vabiscecowas easiness Ir
to land, examination of... ... 2.22.22... Sheecusueemesios saceeexe (46

when do it pass on sale of chattels... 22. seen eee ee neaeeces - 214
when impliedly warranted... ..2 2222 eee eee ene tee eee een ee eee 220
to hired animals warranted by owner_...........- eeicnswceesecetes. (249
deeds are fixtures... 2... 2 eee eee Saacoses SceWemeneeownas 76
GENERAL INDEX.

 

 

Town meetings, how conducted_......._. ve tenes Ma eteseeex soetoseetsee

Traps should not be set for dogs... 2... eo eee eee eee eee eee eos

Traveling in highway with teams.................._-... En iia Rtas la ates!

Trees, kinds that may be planted under timber culture act........- Shee
overhanging, who owns their fruit..............- saistoenaeearereleeraigies
when cutting them is waste._._.........----- Sat BD Lode ons A eae

Tree claims, how acquired_. 2.2. ee eee eee Be tet es

Trespasses, how committed____....22-2 222-2 eee eee po teeie 2 ied Oe ace

by animals, general rule of liability. ..........2. Staten eta te Et
by dogs. se ceoe cbs caskedemsascedcees weseeesesks seieeesene
by domestic animals, remedies for....._. PER Peon a etree Re ee:
by servants, liability for...... 2.2222. eae CaN me cecneteee th
by persons hunting and fishing..._-.......... wie eseckeweue
by animals pastured_.. 2 _-_e ele eesteccbeccs seeueoseces
beasts may be turned into highway... ...-..--ee-cee-- secs
no liability to for injuries from nuisances___._. sseecees ashieae .

Trial of members of a society__.._..-..._.-.-.--- seoaees se waweeuseiuis

Trust deeds, used as mortgages_.___.....-..-.2- Sceusulasisscverwatoeees

“Turn to the right,” rule of the road_.__-_.-2-2 2. odigeeasaseecesucs

Turning out, rule as to, in highways._............. auiscecuseewewe: wowed s

Uz

Uncle Sam, how to get a farm from_..._.... mslsisenleninidencesewcusseseuss

Underground waters, rights in... 2. ee eee eee een eee ee eee “

Unrecorded mortgage, effect of... .2....002---2--neeenne oi seeic seness .

Usury, laws concerning in different States..._.. assanStesaecaacstwstaseus

Vv.

Verbal bargain for land not binding.__.. Steaws wetcacocasonceesabuseee -°

Verbal contract to sell land, not valid_......2...22.--. Bees Conicnis wneee

Vehicles, must be roadworthy___.......-.2----------e0--0- ea eewweneece

Veterinary surgeons, farriers, etc,........-20----enee ehvederecs ia eiaiievers %

Vicious animals, injuries by......2..22. 222.222 eee eects ce sie claninaiweniesins

when lawful to kill them.........22. eieialaicleiafaicioveiaiachcs ars <

Voting, methods of........-----------0--000- siicewbeu es aewiesmaee saints

Ww.

Wages, of minors, statutes respecting......... simccersiee, sewrseoess cecemes
who owns those earned by minors__._........-..--0----200e- oneee
rate of when no agreement is made............ setecese eanceeeen

Wagons, must be roadworthy___.....-.------------0e Sdacicee wes macueee

standing in road, may be a nuisance. _.... 2.22. nn eee een ene

“Warranty,” term defined _..........------+- sais weaeaw wereeses eae

as distinguished from condition._...........-+------- oseees
General. cc cic sececncoenn sce saciweuvenmneceweneeess

133
165
132
133
240
166
173
397

115
114

21
IIo
51
63

34

35
118
233
157
168
306

187
185
192
118
171
218
218
219
484 GENERAL INDEX.

 

 

Z Paaz.
Warranty, of horses. _.... Maes etna ee Fat Onc aeeee tet sees 4220
express, how made...__. a pSrecte Nos ae da lmmeccta Scmdecseee: 218
implied, of title.......... araadwacess cocveseeess wnneeeeeeee 220)
implied,’ of quality... oc .sccckdsuweececcwcsorseosemsdess e220
of title to hired animals___.__.... Goaeceeesimce wesecetaeeces 241
breach of, remedies__-__-_....--..----eeeeee wacamcieeie ee wees 223
covenant of in deeds.......-_..---- phar en pecdafaitnaven sarcimeeee 41
when to be in writing. .....2....--- iL cdema eemame ema ae wauee 220
‘Walls, party, law concerning... 1. oe eee eee e eee ween ee ne eee ween eee enee 102
Waste, general rule as to........--------e- eee ge PIAL Cth wane 138
chapter concerning. ......-.--.2.---eeeeee Se A dees tae oh se 138
by removing manure from the farm...........---------------0+- 139
permissive, what is................- gaaetedsesehecepineisines ---- 140
remedies for.....--..22..2 scubenaewoecee SO eee we tee emen cecaelele 141
by cutting trees, ete.-.-..2 2.2228 e eee Seaton seuss earcee acee 138
purpose of the occupancy as determining.._......--.--..- ecenee-- 140
owner of life estate must not commit........--...-------- eneneee 15
Water as an easement____..__.. slarevauiels iaysae rareneeeed etc, eececanaccee §6—92
for running mills............... Semone eeeees dwicsiezcsicesicsees.t 107
three legal conditions of.___..-..........-- Metcmimeeneneed kewan FOS
unlawful discharge of, a nuisance........--------------0-- ween eee 175
USCOf fOr NTICAON oc cdccceeeecucnotssacesceenceseene 108
underground, rights in Ir
as a support for land.__... as ad Ret ASS Rah Y SOETID ANS 100
Water courses, artificial, rights in............-.-. aeitiieaseeecerSreeenaes 109
natural, rights in._.__....-------- JHobmiewedaseaeesaeay 106
Water-wheel, near highway, held to be a nuisance___..........---- sescus AI
Water rights and drainage, chapter on._......---.--20..- omen eseenccee 105-112
Water rights or riparian rights..........-.--.-+.--- Sees oe ene neeeene 92
Ways, how acquired, etc... 02. oo ee ee wee nee ee ee eee seer eas 94
obstruction of... 2. ...-22 leanne Stiniwasmacekta neceusveuseeae 99
by’ purchase: is 32652 o oe. oe oan le Se eer Reuse ts 96
how they may be used__....-.....0------- wi clk gael Sete Ue 96
by immemorial use... 2.22 ee eee eee eee eee eee egnateces 96
of Necesslty/. 52.2.2 Succcanheeet ce sedceessecctemccee se Shmame weee 95
termination of.....-....... sewecueeasbaukclonuuulauseoemasceecun 99
Which way to turn. _ oo... eee eee ee eee eee eee iafeiwinie aaveie wetatoven 114
Widow's dower right......2..--2--2---- ee noe wares Sottemeeeh accent 258
Widows of soldiers, rights under homestead law__......-----eeeceee ne 28
Wife’s acknowledgment, remarks on___.. 2.22.20 2.0--ee none nee 943, 52, 283
Wife should join in the husband’s deed, when_.___... 22. eee ee eee ene 39
Wild animals, not unlawful to keep them_._._... Suissioseces eeeuweeteees - 4159
Wild bees, who owns them.____._..... eaieccoss) Si caisiem owen’ Vssiguiceace 237
Wild game, who owns it....__.. its oaitoteescecenee an, EN ae NE ee 135
Wills, definition of__. 2.222. ee eee ween nn ee Se eaeeeterste'ss ~ 265
the law of... 2... ss ab hogs e aidan aoeiecantaeah sebeeccciwasoweeaeemscuees, 204

common law as to......... mretelabcnarctansr neuedatee eet sisade pbeciceiccic 265
GENERAL INDEX. 485

 

PaaGe.

Wills, different kinds of... _. 2. oc eee e econ eee Pics de oe net toss ee 265
AtheStat OM OF. os cop scecweetoan ccoce axeueucuen wel ocubeuceceeess 269
BITING Olle os ce cikciecire wes cicicial nei Odeon wae auweeseeewencue 268
witnesses to_..-o..-2. 5... tela ean trate hana aisibieiewicie 209
codicils to......22.... eee rate an amen Sbciianassca comets 269
revocation of......._ Smicvedac. buwckesteeteces edoswsneesssssis 270

form and requisites of... 22... ee. n ewan cee ne nee ce enewmeeccee 267

what causes will avoid... 22... eee eee wee eee eee eee bececeesiess: 267
Witnessing of deeds, object of...22 ooo eee eee enw ene eww ener eeee 43
Witnesses, to deeds, number required, etc,..... 200.2220 een nee enone enee- = 43
tos opt Ss ee ire er ayop ogi ea EG cate Soro eiciey ietewereiec'o ue 269
INDEX TO FORMS.

 

A.
Abstract of title, simple form of._............. aa,

Acknowledgments, general form of__.._o22 eee eee ce nee Bnet TN = 35°
of power of attorney. .....0.2.2---- eee eee ote ue 352

Dy asCOrporatioms ices carne apm ae eeaneeee peaked Jo 353

‘by audeputy sheriff. soccer ce ee cbon oedcdwesecewees 353

for use in New England. .._...-2..2--- ene eeen eee 353

for use in other States__.......--------26 mebeu aes 353-355

Affidavits, common form of..... Lisa dedemurboetekesaces seosiaschendiaters secees. 355
Jegal’ formvof;. 25-226 25 SCs Sede eure oarlads 356

of service of papers... 2.2222 e ee ee ene eee sdeeeseossezeses 356

tOra pethOn.2 25 foc caeen ee etedawaeses Meldencemcas woseumie 357
Ofsregularitys nce semua amen bactanineiosanccewecuslesacen ene -- 357
Agreements, or contracts: o.scescsec non pceeeaesesesaweeweceeeesecccces 358
general form Of... oc ctccccmmeecsensececcoss eeueteeeean -- 358

with provision for liquidated damages.._........-.-- wa sia male's 359
memorandum of, to sell land_......2.- ences aaua esate w--- 359

forsale;Ot Mand oi eek arate asec os wiaegecnacaces copssieee 360

land contract, installment plan.........----------e+-- wesncas 362

bond: forisalevof land: ec cecce-wecmcincaniccesectededteeeene 363

for building: a house... c02..c-scsseeetececsedewscsasis 364- 365

for bricklayers’ and plasterers’ work...........--...0- Madmied 366

to buy a merchant’s stock... ...0..e0c-enene n-ne ene ee eeeee 367

for'the sale of graine...comsnsceraxcuninmeticoacdceeceseee-sh— 367

for léeasingia: housed eco t cents cawincmsnmencemeecauecessos 368
with a clerk or workman for services...__...---.------ psn 368!

for the sale of goods, ete...._- 02.020 -- enone nee cence enone 369
tocultivate landion ‘shares... ca cceciece tees weoseseeseice 379
Apprentices 222.2 e en cee ee ene eee e een en ee eer ncennene 370
indenture of apprenticeship..........----~-------.- S aeeacieg 370

tonsent of father ar moter... .2.c...uncuewsceseenseeanenw 371

justice’s certificate, where mother consents.........---------- 371

Consentioh plaiiatic cc ees emnipewincmereboew anew ecm a-- 372
assignment of indenture...... ijcbiewieisonisiesentuiaswecesecaen 372
Arbitrationvand award. ced.5 < crconcccces caclasiceinismmiceicmicamsimetmene-< ere 372
488 INDEX TO FORMS.

 

PagE.

Arbitration and submission to arbitrators......._.-. ees sesseeseese<3725373.
agreement for judgment_.._._..2.-----.-- 2 eee en eee eee? 373
arbitration bond......... ok nolo dd cedowSecieeeeoeneda! - 373
notice of appointment to arbitrators.........--------++--+- 374
arbitrators’ oath. jtececrs axsire-nrerice nc ociaieastewemeaee scisnie: O74
notice of hearing_..... BN a ati Beh A eas scosaeese 375
oath of witnesses_.._-._..-.----6- scceeceiuwcesoesseses, 375
revocation of submission._.....-----e.e cceeseewcu eewcee 375
notice of revocation.........-.. Fey yt Ra ah SS sesessssess 375
award by arbitrators.....--.c-------neenneecceceneeeeoe 376
ASSIONMChtS 9400S ith 4 oo ASS SaaS yuione Seaceemaaiasencs acess week geseeess. 378
Of deeds: joc fe deo bcestucawe cee sindeenieecieeoceveeses” O27
of demands for wages_........--.----- Seesustowesaveesses=- .375
of accounts... occ ccc Set ceeeevcecs Salsa deecaseasdcsensae 978
Of leasesco 2 ct wen re arincdteSeccicnmuessoe maeses éescsecaucs- 379
of debts, generally... oot e eee eee gecdaeeeaeeeess379-350
of policies of insurance. _..... siickicnaeeaccceen wee eee ene 381
of shares of stock... 22. eee ene ween eects Usicacae aceeswa 382
of seamen’s wages... 20 -e nee e ne Bos dhcsee cece econ vee Boe
of a partnership interest... 0.2. ceeeeneeenccee ert giant 2382
by one partner to another..._._.... Ae ce cathe e aaah! -~ 384
of a bond by indorsement........... ences Sitgraeeseescess:. 335
by a debtor for benefit of creditors... __ edesancecsc waenneee 385
of a judgment......... Aes t EG set OTe ne een mae aecceeee 387
of a tax bid_. 2.2L. fs heey Va Nk Sevebbsccsdicauecas 387
of a mortgage oe eee ewe en eee Wuteteewesaccsecses's 908

B.

Bills of exchange and promissory notes... .-sanceccacuceccccccccecces 359
bill of exchange, common form_._._. Howleeics weecsiowes weeceeees 390
acceptance of bill of exchange..._. Wdisewesinae cucsuewsese eseeeee 390
foreign bills of exchange_....2 2 o-oo eee nee ene e wwe wewenee 390
inland bills of exchange___....... sectewocce ced dice eerscerenece 390
promissory note, general form of.......... scieladibailaa ie cel ade exaace SOT
note, not negotiable. __...-.2- Le. Sete dd nncer tows ee besveiees BOR
MOLE WALD SUT ety fea spect eee nA cea gs Etch Saas elt mead wetnccaeee 3OL
negotiable note.....2 22-2. wiécscuccecaacsecuems sciapeteskcicec= 39!
HOMME OCO asc pay SG ac mcaln owes Sane aes wixeeee ecacmceneen 392
indorsement to order._._-._.-2..2.. Saceheduswaenesee se eeneneeee 392
indorsement for collection___._..._. eet he ieiesusssasse e-= 392
indorsement without recourse__......2.- hic soeree seiccecewlakicwcess: 392
dratts, Checks: :€te: 02. diese ciacmmececiedcerccce cae aieiiwceimce wee 392

Bills of lading, common forms of_...... sieecisisdaayaweaciee sndaweciasease: 393

Bills of sale, short form of_._._... gegtussmedtigcects stidedeeriwewectense 394

ef goods generally... Phiwecwes ea Ciwedaeecosicascenwcece 394
of household goods._._._.... Dieceeucencued eecenunee aeeneee 395
INDEX TO FORMS.

 

Bills of sale, of horse with warranty,
of a vessel

Bonds, law as to
common form of_
judgment bond_...22 22... ele heels Ses Ads Lh eta See

for the fidelity of a clerk____. pth ar Gursuseuacsestatcacseoeon’

of the treasurer of a company

to indemnify lessee

of indemnity on paying lost note..... 222-2 eee eee cece eee e eee
of indemnity on taking goods on execution,
money (bDOndt 43 soe soe erck ereteiecan koa dee ooeaos ace cdecieatee
of a corporation, negotiable
of tenant, with surety, for rent
of administrator
of executor

Cc.

Certificates, of acknowledgment by notary
to copy of paper on file... 2. eee eee eee eee eee
by county clerk as to capacity of motary.........2-..---------

Charter parties, general form of... 222-20. sean ee ence eee Seioccezaeses

Chattel mortgages, general form of___...2.--.2---20- nce en eee neem eenee

Contracts—see agreements.

Commissioners of highways, application to lay out highway._....__.. oe oe

application to discontinue highway...........

Corporations, articles ef association for business company.._.... Screen cages

for literary society_.........-..--- Ses
for religious corporation....0....2-.-.-
engagement to take stock... ooo eee ence eee ne
transfer of stock........-.-----.----- subescceeictiidssenias
proxy to vote im_...... 2.2 Le eee démaSwicsine needed ecmciwaem

Deeds, of bargain and sale._.......-----0------+ cpedisesson es sseveuwme
of warranty, long form..........-.-0--2--------ee ee wisibeeteniswie

poll, in use in New England_......---..22-2-----------e eee eee
ef quit-claim, long form ___..2-2-2.2---------- eee ee eieetoweecn
quit-claim, with warranty against grantor’s acts....----.......--. ee
bya corporation... ...-ccseiceessvccse ed scee scones cccdameweicame
by an attomey.._.... Mccviocewaccantescaecasceeverteseeecenecem

of aright of way. ..... 2.02.22... ene n nce n een nee nn eee cae eeeee

421
422

424
424
49° INDEX TO FORMS.

 

Deeds, by executor, administrator-or guardian. ...... eneceenan weennenceee
Depositions—see affidavits.
DIVOLCEs.c.seceacoseis tees shee es ee celwseasatoccsewesteeeem aikeiaieee

Drafts—see bills of exchange.
‘)ivision fences—see fences and fence viewers.

E.

Estrays, notice to town clerk of finding...........-- geveusetcetdceucesd
notice of Saléei0fs J ccccwecce ce emoateccmece sieee a Seeessaceeces

F,

Fences and fence viewers, complaint to, of neglect to repair.........-.---
determination by, on complaint... 0.222. 2 eee ee eee eee eee ene
certificate by, as to value of rebuilding... 2.22.1. eee eee een e
assignment by, of shares of division fence
appraisement by, where one occupant has more than his share
notice of meeting of fence viewers_.... 2.2.1.2 open eee een eee ne ae
determination, where land is divided by water._-...... ....-------
determination of value of half of partition fence
agreement between adjoining owners, as to fence
notice of intention not to improve land. .._.. i

Foreclosure of mortgages, notice of mortgage sale_,.....--2.0--0-------e
G.

Guaranty, of payment of note__...........-.-- ciisineendewncwenenwexcca
of payment of rent_.........- semaine criowaemescuiaes: niveveeses
of collectibility -...-....-..... ansakecnseemns cedecaeeecwees

H.

Highways, release of damages by owner of land .. 222... ane ec enn n none
notice to persons to remove buildings from_....-......--..-06 a
notice to toll road companies to repair road

notice by overseer to owner to cut Canada thistles_.__. eieseteed
overseer’s list of persons liable to work on__.2 22. eee enn eee
Horses, receipt for with warranty_.._. 2.22.0. cee eee ee ec eee eaugéesees
with qualified warranty. .....00.cse-cccecnececnecens

L.
Land contract, general form of........... wuterwerswewereees ce weaeeaonee <
Leases, of a farm for term of years__._...... stalerard Riess Ric pe etictieeio eects x
with chattel mortgage security. 2... oo eee eee meee ence cece
short form of._._..-.2.22. cence Sia ckeewe wedge tecwonpoucoes
agreement of surety for rent........ eiSeeesees esc cmemamasenses
Letters of credit..... Si dsesaetioientossdcses bee ewesmesmcceueccusese

427
427

428
428
429
429
430
430
431
431
432
433
433

434
435
435

435
436
436
436
437
437
437

361
438
439

44I
441
INDEX TO FORMS. 491

 

M.
Paex.
Marriage, certificate of by a magistrate... 22-22-2222. idti sas Gree 442
by a clergyman. 20... eee ence cee cen e nena 443
Mortgages, short general form of... 21.22.0002 2. enc eec ee ce enn e een ne 443
long form Off: cocccseceesecseecwecacieewsceccuscowenee ecu 444
assignment: Of. \. ccis sexiocecnwsccariieceveeewsect coseeeseecs 445
discharge “Ofsc sce cace ee cis celucaspas qacweseesaccsewsewacese 446
chattel mortgage. ...........---2- eee ene Bewecsseesseet oad - 446
P.
Partnership, articles of copartnership._.......-..-.0-..----2--s weccesecd 447
advertisement of dissolution of... 222 02. - oot e eee ee eee 448
of a partner’s retiring. ...... 002-2. .e eee een 449
Petitions, to the U. S.. Congress... saecnceccccsssesaccsuncsnssenecns 449
to the: Legislature of @ State. sccccosceost ccc cccasscsacccasees 449
to the Executive of a State... eee eee en nee eee 449
Power of attorney, short general form of_........-----.0-------2-----e6 450
to colléct:rentsizc. .dvecsuecseddcachiueectecohoes ce. 450
fo collect sdebtsi.5 suc Hoes Seieia visi ctcicciveeaweicaeceus 450
to sell and convey lands__........2.--.-0----- ence ene 451
to morteage: lands) wis: sane cagoseweossnsaccesceceess 451
acknowledgment of j..csicseccsesnseesss sees sccaseees 352
FEVOCAHON Of; 5 cc amecetecccecesscesonscasccecses 451
Promissory notes—see bills of exchange.
R.
Receipts, for money......------- mene cence nen cee newer emcee enone een 451
for chattels) 2. cccocusnenelnue wives wcdpiesccesisceseveece ees 451
for papers, €tC.... 2.22. - en ween ee ene nee e en ee eee een 452
for cash payment in full of all demands..._.......-.---.--.---- 452
for money paid by a third person.._..-.---------.----------0+ - 452
for money on behalf of a third person_.-..--....---.-----20--- 452
to be indorsed on a written instrument_._........--------..---- 452
on account generally... 2. ----- 0-2-2 eee eee eee eee e eee eee ne 452
for a quarter’s Tent... - 2 ------ eens eee eee em een n eee seen nen ene 452
for payment for professional services ........--+--02---0--2---+- 453
for money to be paid over_.........-0----- tesheewmeeseeen ties 453
for money to be repaid........ on cece nnwec ewe nennnenaascacces 453
for stock put out to winter _....-----20--2-- 20-2 e ee ene nnn - eee 453
Releases, general of all demands. ......----+-----02----++eeeeene-- eee 454°
mutual, general... ....---0--20- 2-2 eer enn ree cnn e concen en -- 454

special ......-.- er neeeecens wee eee cer cree nee en nee nencenene 454
492 INDEX TO FORMS.

 

Ss.

Paez.
Societies, constitution for State Agricultural. .......2. sesiscndeececsccewss: 455,
constitution for County Agricultural... ..........-ee wasn teow -457
constitution for debating society......-...0--ee- atiinawaeteeeses 458
by-laws for a debating society.......... esbvecweew wwesaccceena 459

re
Tax history and tax statement__... i ahaa Oc ewwccwnccemewceacennccesene 350
Title, form of abstract of.........2.0-0- wees) westace st Ss cesectaseas, cose 347

WwW.

Wills, general form of both real and personal estate... 2-2 ..ee ennee 460
Ai PEN DIX,
 
  

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STATE AGRICULTURAL COLLEGE, LANSING
CHAPTER L

THE GENERAL RIGHTS AND DUTIES OF
EMPLOYER AND EMPLOYE,

 

s. Importance of the Subject. 5. Just Cause for Leaving.

a. Relation of Employer and 6. Employer’s Duties. —
Employe. 7. Employe’s Compensation.

3. Effect of Custom. 8. Liability for Labor Debts.

4 Breach of Contract.

1. Importance of the Subject. The serious difficulties’
which have arisen in various parts of the country over the
adjustment of the mutual rights of labor and capital have made
this subject one of great importance. A widespread movement
on the part of labor looking toward its complete organization
seems to be taking place. In some respects it is a revolution,
but proceeding by peaceful means. Its aim is, or should be, to
proceed under the law where the law is adequate; and where
the law is not adequate, by awakening the agitation necessary to
bring about its amendment. How important, therefore, it is to
have clear understanding as to the present status of the law, to
the end that evasions and transgressions of it may be avoided,
and where found insufficient it may, by wise legislation, be so
amended that right and harmony may prevail.

2. Relation of Employer and Employe. The reiation
existing between one who employs and the one who ia em-
ployed arises by contract of the parties. There is no way now
with us by which one person can becomé entitled to the services
of another except by the free consent of the person performing
the service. It follows that the capacity of parties to contract
may affect this relation. Contracts of hiring with minors may
not always a enforced against them. Upon this point see the
496 MANUAL OF THE LAW.

 

paragraph on the subject in another part of the book. The
relation of master and workman is one involving mutual cenfi-
dence and good faith, The employe agrees to discharge his
service to the best of his ability and to protect and advance his
employer’s interests. The employer agrees likewise to guard
the welfare of his employes, and he will be liable-to them for
failure in this regard. Upon the questions of the liability of the
employer to his employes and to others for the acts of his em-
ployes, see chapters on these subjects in another part of the
book.

3. Effect of Custom. In entering the relation of employer
and employe, parties are presumed to contract with reference to
the custom in vogue in the particular occupation in that part of
the country where the service is to be performed. Contracts of
hiring are not often written; they are generally made verbally,
and in either case but few words are used. The rest is left to
the custom of the trade; and the parties are bound by it. Thus
in hiring by the day, if nothing is said as to the number of hours
to be worked, the parties are presumed to have contemplated
the number of hours customary for a day’s work in that locality
and trade. If the statute determines this, as it does in some.
States, that will govern, unless a special agreement is made to
the contrary and is permissible—as it is in most cases. If the
hiring is by the month, the custom as to hours and work in the
way of chores or the like on Sundays and holidays, will govern.
But in all cases it is well to have every point covered by a.
definite agreement.

4. Breach of Contract. If the contract of hiring is for a
definite time, as for one month or one year, neither party can
terminate it before the time hax expired, except for good cause,
without becoming liable to the other for the injury resulting. A
farm laborer, for instance, cannot hire out for the season and
then leave with immunity at harvest time because he can get
higher wages elsewhere. If he does so, many decisions hold
that he cannot recover anything for the work already done, (19
Mo., 60; 25 Conn., 188), but the better doctrine seems to be that
he can recover what is due him over and above the damage
done his employer by leaving before his time is out. So if an
employer turns his employe away without just cause, he will be
liable for an amount sufficient to indemnify the employe for loss
RIGHTS AND DUTIES, 497

 

of wages during the time spent in getting new employment and
for loss of excess of wages contracted for above those obtained
at the new employment.

5. Just Cause for Leaving. It is difficult to state with
accuracy what will in all cases justify the employe in leaving
before his time is out. In general if the employer requires the
employe to perform immoral or illegal service, or if he fails to
pay him according to contract, or to furnish him proper food or
other necessaries when such are included as compensation, or if
he willfully misuses or maltreats him, the employe may leave
and may recover the amount due him and damages.

If the employe is guilty of immoral conduct, willful disobe-
dience, habitual neglect of duty, or does not possess the skill com-
mon among workmen of his class, the employer may discharge
him.

6. Employer’s Duties. It is the employer’s duty to use
diligence and care in the selection of skillful, competent and
trusty employes. He must then furnish them with safe and
suitable means for performing the service contracted for.

Having does this he will not be liable to any one of them who
is injured through the carelessness of another if both are engaged
in the same service. (42 Me., 269). Nor will he be liable for
injuries which result from conditions incident and unavoidable
in the employment contracted for. Risks necessarily incident
to the employment are assumed by the employe when he enters
the service. But upon these points see the chapter on the
“ Liability of the Employer,” in another part of this book.

The employer will be responsible to third parties for all acts
of his employes performed in the scope of the employment, and
also contracts made by them within the scope of their authority
will be binding upon the employer.

7. Employe’s Compensation. One of the first duties of
the employer is to pay his workmen for their work. The pay-
ment of labor debts is more carefully provided for by the law
than that of any other class. They are usually exempt from
_garnishment, when due to householders, up to $25, as is explained
in the chapter on that subject. They may most always be
secured by liens upon real or personal property, as is set forth in
the chapter on liens; and they take priority over other debts in
very many cases. For example, the voluntary assignment and
498 MANUAL OF THE LAW.

 

bankruptcy laws of the several States usually provide that labor
debts shall be paid in full whether anything remains for other
creditors or not. ;

A judgment when obtained upon a labor debt cannot usually
be stayed for ninety days as in other cases, but execution will
issue thereon at once if it is not paid. Such is the law of Michi-
gan. (Howell’s Statutes, § 7o91 a.). In some States no prop-
erty is exempt from execution, when the execution is issued on
a judgment obtained for a labor debt, except such as the State
Constitution positively requires. In Michigan a female plaintiff
in a suit for a labor debt is allowed to recover an attorney’s fee
of five dollars in Justice Court in addition to other costs.
(Howell’s Statutes, § 7091).

8. Liability for Labor Debts. The liability for labor
debts is more extended than that for other claims. In the case
of limited partnerships, for instance, a special partner may put
in a certain amount of capital into a partnership and by comply-
ing with certain provisions have his general liability limited to
that amount. But it will be found on examining the statutes
providing for these limited partnerships, that the limitation does
not extend to labor debts. Such debts may usually be collected
from any partner, whether special or general. So likewise in
the case of corporations, the individual members or stockholders
are not personally liable. Their stock may be sequestered and
sold if necessary, in certain cases, but individually they are not
generally responsible for the debts of the company. Labor
debts, however, against corporations will be found to be placed
on a better footing and may be collected from any stockholder,
if the corporation has become insolvent. Such is the law of
most if not all the States; even in the case of railroad, mining
and manufacturing corporations, where the owner of a single
share of stock may become responsible for labor debts aggre-
gating many thousands of dollars.

Mechanics liens cannot attach to public buildings of any kind;
but most States have provisions for securing payment of wages
earned on public buildings. In Michigan, the contractor and
sub-contractors are required to give a bond for the payment of
all labor debts or debts for materials furnished in the construc-
tion of public buildings. (Howell’s Statutes, § 8411 a.)
CHAPTER II.

LIBNS FOR THE PROTECTION OF MECHAN.
0S, LABORERS AND OTHERS.

1. Use of Liens. 9. The Michigan Statute.
8. What is a Lien. to. Notice to be Given.

3. Common Law Liens. 11. Priority of Liens.

4 Statutory Liens. 12. Enforcement of Liens,
5. Mechanics’ Liens. 13. Other Statutory Liens.
6. Requisites of a Lien. 14. General Principles.

7. Equitable Liens. 1s. A Precaution.

8. How to Secure a Lien.

1. Use of Liens. It has sometimes happened that unscru-
pulous contractors and others have secured the valuable services
of workmen in the erection of buildings or other structures, and
having received their pay for the same have made off leaving
the workmen without pay for their work. For the sake of pre-
venting such kinds of injustice, and of making persons who
furnish labor and materials secure in their compensation, the
law gives them in certain cases a claim on the product of their
labor, and when that product is a structure of any kind, upon
the land on which it is erected also. It is important that work-
men should know how to take advantage of this wise and just
provision.

2. What is a Lien? A lien is a claim which one person
has upon the property of another as a security for some debt.
The security given by a lien is very much the same as that
afforded by a mortgage. Liens are of two kinds, common law
and statutory liens.

3. Common Law Liens. At common law a lien consists in
the mere right to retain in one’s possession the property of
another until the debt is paid. It may be the right to keep any
property of the debtor on account of a general balance due; but
in most cases the lien attaches only to the particular piece of
property upon which labor or money has been expended. For
500 MANUAL OF THE LAW.

 

example, whenever a workman or mechanic takes into his own
possession a piece of property, like a wagon or watch, etc., to
do some work upon it, he is entitled to keep it until he is paid
for his work. (14 Pick., 332; 7 Barb., 113). This is particu-
larly the case with mechanics, tradesmen and others who are
obliged by law to receive the property of others and be at some
trouble or expense concerning it. As for instance, carriers, per-
sons who have repair shops of any kind, etc., and who are re-
quired to serve the public generally, are entitled to a lien upon
the particular property concerning which the service was
rendered.

Thus: An express company can keep a package of goods
until the express charges are paid. A tailor may keep a suit of
clothes made from of his customer’s cloth until the making
is paid for.

In all of these cases the lien is lost as soon as the possession
of the goods is voluntarily given up.

4. Statutory Liens, It will be seen that the common law
liens do not give protection to the great majority of workmen
and mechanics, because most of them are employed upon or
about property which remains in the owner’s possession. Per-
sons employed in the erection of buildings of all kinds, have ne
protection of this sort at common law. The legislatures of the
several States have therefore endeavored to supply the deficiency
by enacting laws which give protection to contractors, laborers,
and in many cases to persons furnishing material, by giving
them a lien upon the result of their efforts.

5. Mechanics’ Liens. The most important of these statu-
tory liens is that given to mechanics, laborers and material men
for work or material used upon the buildings or other struct
ures which their labor and materials have brought into exist-
ence.

Each State has its own laws upon this subject, all of which
have the same object, but are not identical in their provisions.
To secure the advantage afforded by these statutes it is usually
necessary for the mechanic or laborer to give the owner some
previous notice. Having done this he secures a claim not unlike
a mortgage upon the structure which is being erected, and also
upon the land under it. Such a lien when secured, attaches to
the buildings and to their appurtenances, as for instance, the
outhouses and other buildings necessary to the enjoyment of the
premises.
OF LIENS. 501

 

Where a wing is being built on to a structure already built,
the lien will attach to the main building, and the whole structure
will stand as security. A material man cannot secure such a
lien until the material he has furnished actually goes into the
building.

One who furnishes lumber, for instance, must wait until it is
attached to the building before he can claim a lien.

A building erected for any unlawful purpose cannot be made
subject to the lien, if the contractor or laborer or other person
seeking the lien, had knowledge of that fact. No lien can
attach to any government building.

6. Requisites of a Lien. In order to secure a common
law lien, the property upon which it is claimed must have passed
lawfully into. the hands of the person claiming the lien. No
lien exists if the possession was acquired by wrong or misrepre-
sentation, or by act of the owner’s agent, unless fully authorized.
Lawful possession being the necessary element of all common
law liens, it follows that if the creditor once parts with that pos-
session, the lien is gone. (11 Cushing, 231). Of course, by
agreement the property can be returned to its owner and the
lien extended, though not so as to affect third persons. (36
Wend., 467).

7. Equitable Liens. These are such as exist in equity and
of which the courts of chancery alone take notice. They are
for the most part too complicated for treatment in this work.

The most common liens of this character are those for pur-
chase money. For instance, if a man sells land, he has an equit-
able lien upon it for the unpaid purchase price. So where the
purchase money has been deposited in the hands of a third per-
son to cover incumbrances or the like, the seller will have a
lien upon it.

8. How to Secure a Lien. It follows from what has
been stated that Common Law liens are secured by the mere
possession of the property upon which they exist. The benefits
of the statutory liens can only be secured by carefully comply-
ing with whatever conditions the statute prescribes. The
mechanic or workman or the person furnishing materials must
carefully examine the provisions of the statute in force in his
particular State, and see to it that he complies with them in every

particular.
go2 MANUAL OF THE LAW.

 

As these statutes are not identical in the several States, it is
impossible to lay down with accuracy any set of rules to be fol-
lowed which will be safe to depend upon generally.

It will only be possible to throw out such hints as will enable
the reader to secure the protection afforded by his local statute.
The statutes of the different States can usually be found in the
offices of all Justices of the Peace, township officers and the
clerks of the various courts, and provision is usually made
whereby any citizen may have the privilege of examining them
in those places. The reader therefore, if he does not possess a
copy of his State statutes, should either examine them in one of
the places above indicated, or should consult his attorney.

For the sake of showing, in a general way, the operation of
these statute liens, the Michigan statute will be examined and
the method to be followed under it indicated.

9. The Michigan Statute. In Michigan the statute pro-
vides (see Laws Mich. 85, pg. 293), that every person who shall in
pursuance of a contract between himself as contractor and the
owner, part owner, lessee, or person having other interest in real
estate, build, alter, improve, repair, or furnish labor or materials
for so doing, any building, wharf, machinery, or other structure,
and every person who shall as sub-contractor, laborer or mater-
ial man, perform labor or furnish materials to the original con-
tractor for so doing, shall have a lien therefor upon the structure
being erected or repaired, and also upon the interest of the
owner, part owner, or otherwise, in the land under such struc-
ture;—not exceeding one quarter section of land in the country,
of one city or village lot if the land lies within the limits of any
incorporate city or village. The lien is upon the interest which
the owner has in the structure and land at the time the work is
commenced, and also upon any subsequently acquired interest.
The aggregate of all such liens shall not exceed the amount due
or to become due from the owner. Where the materials and
labor are furnished for a structure erected on the lands of a
married woman in pursuance of a contract with her husband,
but with her knowledge and consent, the lien attaches just the
same.

10. Notice to be Given. Every person who wishes te
avail himself of the provisions of the act, must make and file in
the office of Register of Deeds for the county in which the land
upon which the structure being erected or repaired is situated, a
OF LIENS. 503

 

just and true statement of the demand due to him over and above
all legal set-offs; stating the time when the material was fur-
nished or labor performed, and when completed and for whom,
and containing a correct description of the property to be
charged with the lien, and the name of the owner, part owner,
lessee or otherwise if known, which statement must be verified
by affidavit.

This statement if made by the principal contractor must be
filed within ninety days, and if by a sub-contractor, material
man, or laborer, within thirty days from the date on which the
last material was furnished or the last of the labor was per-
formed.

This statement may be in the following form:

FORM OF STATEMENT.

STATE OF ..cceeeeeees ];
BS.
COUNTY OF .... 00000

Ay Bool ccicsacsaase ws , being duly sworn, says, that on the
asore WAY OF sca jeeediocies , 18..., he furnished certain labor (or
material) in and for building (or altering, improving, repairing,
erecting or ornamenting) a certain ..........6+ situated on the
following described land, ............. » in pursuance of a cer-
tain contract with C. D. the owner, (or the contractor or a sub-
contractor or other person, as the case may be), and that the last
of such labor was performed (or material was furnished) on the

sar day OF wiieis:aaisis , 18..., and that there is justly and truly
due deponent therefor from the said C. D. over and above all
legal set-off the sum of ........ dollars, for which amount

deponent claims a lien on said land (or building) of which ....
is the owner (or part owner, etc., as the case may be).
Biiieiciss, Dsistsieie

Subscribed and sworn to before me, this .... day of .......
8..

A failure to file such statement within the time will not de-
feat the lien except as against purchasers or incumbrances in
good faith without notice whose rights accrue after the ninety
or thirty days, as the case may be, and before the claim of lien
was filed.

To preserve the lien against the owner and prevent payment
by him to the principal contractor, the sub-contractor or laborer
must within thirty davs serve upon such owner, a written notice
504 WANUAL OF THE LAW.

 

of the filing of such claim. Such notice may be served by an
officer or by the party himself. Every person claiming such
lien shall, if required by the owner, within three days after
demand therefor, furnish to him a written statement of the
amount of work or material furnished to the date of the state-
ment and not paid for, as nearly as he can ascertain, and every
owner when requested by any sub-contractor or laborer, must
within three days produce the contract between himself and the
contractor or sub-contractor, and allow such laborer or sub-con-
tractor to make a copy thereof, and also furnish any claimant of
a lien a written statement of the amount due and unpaid on such
contract. A failure to comply with this provision is punished
by a penalty of one hundred dollars and all actual damages
occasioned by his refusal.

11. Priority of Liens. The liens provided for in the act
take priority as follows: 1st. All liens for work, labor or ma-
terials furnished, shall be deemed simultaneous mortgages.
They shall take priority of all garnishments for the contract
debt, whether made before or after the commencement of the
‘work or the furnishing of materials. They shall be preferred
to all other liens or incumbrances which may be put upon the
building or structure, or the land upon which the same are
situated, made subsequent to the commencement of said building
or other structure.

They shall take priority over any other title, claim, lien or
incumbrance or mortgage to or upon the land except any mort-
gage which secures money advanced for the building of the
structure of which said lien is claimed.

12. Enforcement of Liens. The only remedy or use of
the common law lien is to allow the creditor to retain possession
of the goods. He cannot enforce or foreclose such a lien by
selling the goods and retaining from the proceeds of such sale
the amount of his claim, excepting by virtue of some statute.

There will be found in most of the States statutes governing
the foreclosure of common law liens, and these must be looked
to for guidance in all such cases.

The statutory liens are enforced by a method somewhat simi-
lar to that by which a mortgage is foreclosed.

In Michigan such liens continue for sixty days after the affi-
davit of amount due is filed. They then cease unless proceedings
OF LIENS. 505

 

are begun to enforce them. These proceedings consist of a bill
or petition in chancery. Persons claiming liens are complain-
ants, and all persons having rights in the property affected, and
all persons holding other like liens are made defendants.

The enforcement of a lien is a matter which should not be
undertaken except by an attorney, and the details of the method
to be pursued are therefore not necessary to be given in a popu-
lar treatise.

13. Other Statutory Liens. Aside from the common law
liens and statutory mechanic’s liens heretofore described, there
are other liens given by statute for the benefit of mechanics and
laborers. For instance, these will be found in most of the States
statutes which supersede or reinforce the common law liens
already referred to.

The following provision from the Michigan statutes (see
Howell’s Mich, Statutes, Sec. 8399) is given as a sample of this
kind:

“ Whenever any person shall deliver to any mechanic, artisan
or tradesman, any materials or articles for the purpose of con-
structing in whole or in part, or completing any furniture, jew-
elry, implements, utensils, clothing, or other article of value, or
shall deliver to any person any horse, mule, neat cattle, sheep
or swine, to be kept or cared for, such mechanic, artisan, trades-
man, or other person shall have a lien thereon for the just value
of the labor and skill applied thereto by him, and for any
materials which he may have furnished in the construction or
completion thereof, and for the keeping and care of such animals,
and may retain possession of the same until such charges are

ai 2
. Another somewhat similar provision of the Michigan statutes
(see Howell’s Mich. Statutes, Sec. 8400) is as follows:

“When any person shall deliver to any mechanic, artisan or
tradesman, any watch, clock, article of furniture or jewelry,
implements, clothing, or other article of value to be altered,
fitted or repaired, such mechanic, artisan or tradesman shall have
a lien thereon for the just value of the labor and skill applied
thereto by him, and may retain possession of the same until such
charges are paid.”

In these cases, if the owner of the property shal! =ot, when
the article shall have been constructed or repairea, or the time
506 MANUAL OF THE LAW.

 

for the keeping of the stock shall have expired, pay to the
mechanic, artisan or person, to whom the charges are due, the
amount thereof, such person may enforce the lien as above indi-
cated.

The liens upon personal property are enforced by a suit for
the recovery of the charges which they secure. The judgement
obtained is satisfied out of the property covered by the lien and
the remainder, if any, is turned over to its owner, but as this
procedure should be intrusted to an attorney, it is unnecessary to
describe it in detail.

There are still other liens given by the statutes of the various
States for labor on logs, timber, posts, and other things of the
sort, but as these are of not universal application their consider-
ation is here omitted.

14. General Principles. The courts, in passing upon the
statutory liens, have laid down some general principles which
it may be well to refer to.

All statutory liens must be strictly pursued to acquire rights
under them. It must appear that every essential requisite in the
proceedings was regularly taken. (38 Mich., 592).

In order to create a lien there must be a contract with a per-
son owning an interest in the premises upon which it is claimed,
and the contract must be adhered to, and be performed upon the
lands against which the liens is sought to be enforced. (49
Mich., 12).

A lien cannot arise under the Michigan statute in favor of par-
ties merely for sale of machinery or materials which may or may
not go into a building, according as the purchaser may determine,
(37 Mich., 313).

15. A Precaution. Before leaving this subject the reader’s
attention is again called to the fact that in order for the mechanic
or laborer to secure the benefits of the statutory liens, the con-
ditions provided by the statute must be strictly observed. If the
laborer allows the matter to go until he finds he cannot get his
pay, he will probably also find that he has lost the opportunity
of getting a lien.

The local statute must be looked to, and the requirements that
it contains as to the filing and serving of a preliminary notice
must be strictly followed.
CHAPTER II.

THH LAW OF GARNISHMENT.

 

&. Its Importance. 7. Garnishee Cannot be Sued.
a. Subject Explained. 8. Demands Not Due.

3. Regulated by Statute. 9. Corporations as Garnishees.
4 When it May be Used. to. Garnishment in Attachment,
§. Liability of Garnishee. 1x. Who May Not be Garnisheea,

6 Final Proceedings.

x. Important to Laborers. It not infrequently happens
that a workman or mechanic finds when pay-day comes that his
wages have been “garnisheed,” as it is popularly expressed, and
a great deal of trouble, confusion and worryment is thus occa-
sioned, not only to employe, but to employer. It has been sug-
gested to the compiler that he cannot touch upon a matter more
practical to the laboring and employing classes, than this subject
of garnishment.

2. Subject Explained. Garnishment is a warning to a
person to appear before a Court and give information regarding
a cause there pending. It is a writ served upon a person sup:
posed to be indebted to the defendant in the suit, commanding
him to appear and disclose the amount of his indebtedness:
and to held the same subject to the order of the Court for the
benefit of the plaintiff.

3. Regulated by Statute. The whole subject is regulated
by statute in the several States, and it is only by careful study
of the local statutes that complete knowledge can be gained.
All that can be here given is a general outline of the provisions
of the Michigan statute, which is based upon that of New York,
and is sufficiently similar to that of other States to afford a toler-
ably practical view of the matter.

4 When Garnishment may be Used. When any
actiea founded upon contract is commenced, or after a judgment
508 MANUAL OF THE LAW.

 

has been rendered in any case, if the plaintiff has reason to be-
lieve that any person has money, property or effects in his pos-
session belonging to the defendant or is otherwise indebted to
the defendant, he may make and file with the Court an affidavit
setting forth such belief, and the Court will then issue a sum-
mons requiring him to appear and disclose the amount of his
indebtedness.

5. Liability of Garnishee. The person so summoned is
called the garnishee, and from the time the summons is served
upon him he is deemed liable to the plaintiff to the amount of
his indebtedness to the defendant, and he must not then pay
anything over to the defendant, for if he does he will still be
liable to the plaintiff to the amount of such indebtedness; except
that if the defendant is a householder, having a family, and the
garnishee owes him for’ personal labor, any indebtedness up to
twenty-five dollars is exempt, and is not in any way affected by
the proceeding. If the garnishee neglects or refuses to appear,
he may be brought before the Court by warrant.

The disclosures made by the garnishee are binding upon the
plaintiff. He stands in the attitude of a witness for the plaintiff
and his testimony is the basis of all subsequent proceedings
(33 Mich. 65.) If from his answers it appears that he has no
property of the defendant in his possession and is not indebted
to him, all proceedings against him are at anend. His answers
must be taken as true. He cannot be impeached. (7 Mich.,
103).

6. Final Proceedings. If the plaintiff recovers judgment
against the defendant, the garnishee may, if he is indebied to the
defendant, pay to the Court, unless an appeal is taken or a stay
of execution put in, the amount of his indebtedness or sufficient
to satisfy the judgment (except such as is exempt to household-
ers) and thereupon the Court will execute and deliver to the
garnishee a release and discharge for the amount paid, which
will be binding upon the defendant.

If the garnishee does not do this, the plaintiff may proceed
against him, and like proceedings may be had as upon a suit
brought against the debtor.

A judgment against a garnishee is the same as any other judg-
ment. Execution may issue thereon, and may be stayed in the
same manner as in other cases.

7
THE LAW OF GARNISHMENT. 509

 

If the plaintiff fails to recover judgment against the defend-
ant, the effect is to discontinue all proceedings against the
garnishee.

7. Garnishee Cannot be Sued. No suit can be brought
by the defendant against the garnishee for the recovery of the
admitted indebtedness while the proceedings are pending. IE
such a suit is brought it is a perfect defence to show the pro-
ceedings in garnishment.

8 Demands Not Due. If the garnishee shall disclose an
indebtedness owing and payable at some future time, the Court
will, if judgment is recovered by the plaintiff, continue the cause
until after the time that such indebtedness is payable, and such
proceeding can then be had as if the money had been due at the
time of the service of the summons.

g. Corporations as Garnishees. ll corporations other
than municipal may be proceeded against as garnishees in the
same manner and with like effect, as individuals. The sum-
mons may be served upon the president, cashier, secretary,
treasurer, agent, superintendent or other principal officer. Such
officer is required to disclose the same as in other cases, or if the
office of the corporation is in a township other than that in
‘which the Court is located, the disclosure may be made in writ-
ing under the oath of such officer.

ro. Garnishment in Attachment. This is a proceeding for
reaching the property of the defendent in the hands of a third
person when service cannot be secured upon the defendant.

The proceeding is somewhat complicated and does not have
direct connection with the law regarding labor.

tz. Who May Not be Garnishees. No public officer
having money in his hands subject to a demand may be gar-
nisheed in a suit against one to whom the same is due. (7 Mass.,
259).

. person holding authority from the law and obliged to
execute it according to the rules of law can be made a garnishee.
(8 Mass., 246).

Thus a county treasurer, or a sheriff, or constable, or any
other such officer having money in his hands for the payment of
a demand by an individual cannot be proceeded against as gar-
nishee; the money in all these cases is in the custody of the law
and is not liable to be arrested in the hands of the public officer:
§r0 MANUAL OF THE LAW.

 

It is really not the money of the defendant until paid over to
him. (34 Mich., 99; 33 Ills. 510). But where an officer,
seized under an execution a greater sum than the execution re-
quired, the surplus was held to be the money of the defendant
aad the officer was made liable as garnishee for the amount of
it. (1 Barb., 345). So likewise guardians, executors, admin-
istrators and the like whose duties are prescribed and regulated
by law, cannot be made liable as garnishees; at least not until
there has been a settlement by decree of the Court and a defin-
ite sum found due the defendant. (9 Vermont, 32}.

An attorney having money in his hands collecte? by him for
the defendant, may be made liable as garnishee (xn Mass,

441).
CHAPTER IV.

LAW AS TO STRIKES, BOrco7TTs, ETC.

 

s. An Important Civil Right. 6. Conspiracy to Prevent Em.
2. Limitation of this Right. ployment.
3. Free Will Must Not be In. 7. Statutes Upon the Subject.
terfered With. 8 Boycotts and Lockout.
« How Far Strikers May Go. 9. Contracts Not to Engage in
gs How Persuasion May be Labor.
Used.

x. An Important Civil Right. Among the civil rights
guaranteed to every American citizen, is the right to make use
of his labor in any lawful employment. He has the undoubted
right to hire out in the service of others as well as to refrain
from doing so if he shall see fit. Judge Cooley pronounces this
one of the first and highest of an American’s civil rights.
(Cooley on Torts, page 276).

2. Limitation of this Right. Perhaps the only limitation
that can lawfully be placed upon this liberty, is the right of the

State to determine what shall be lawful employments, It is
left with the State Legislatures to determine, in their wisdom,
what employments are harmful and demoralizing to the public;
and these they have the power to forbid. For example: Games
of chance, are forbidden and in many States, traffic in intoxicat-
ing liquors; and there is.no question of the rightful authority of
the State in such matters. Not only may some occupations be
prohibited as unlawful, but all may be regulated as to the man-
ner in which and by whom they may be conducted, in cases
where consideration of morals or public health are involved.

While the general principle is that no person shall be ex-
cluded from any lawful employment, still the law may make
exceptions in the case of children or of females where the em-
ployment would be hurtful to themselves or te others,

35
512 MANUAL OF THE LAW.

 

The employment of small children in mines and manufac-
tories is often prohibited, and the right to do go is unquestioned.
(120 Mass., 383).

In fact any reasonable regulation may be placed upon any
employment, and the test of what is reasonable must be found in
the judgment of the Legislature, unless the Constitution has pro-
visions on the subject. Whatever the Legislature ordains and
the Constitution does not prohibit is lawful. (73 Penn. State.
29; 65 Missouri, 325.)

It follows from the foregoing that every citizen, unless pro-
hibited by some positive law, may engage in whatever occupa-
tion he may choose and may hire others to engage in it with
him, subject to the regulations above referred to. He may hire
out to whoever he wishes and may contract to work as long or
as short atime as may be agreed upon. If he works by the
day, he may stop at the close of any day and recover his pay for
the work done. He may induce as many of his fellow work-
men to stop at any given time as he can, and in doing so he may
use any means which does not interfere with the free exercise
of his fellow workman’s will.

3. Free Will Must Not be Interfered With. It is one
of the foundation principles of our civilization that no man shall
be deprived of his life, liberty or property, except by due pro-
cess of law. A man’s labor is a part of his property and his
right to labor a part of his liberty. The right of every person
in America to exercise his free will in any lawful way cannot
be interfered with, without serious liability. Argument, persua-
sion, peacefal inducement of any kind may be lawfully used;
but force, fraud or intimidation cannot.

4. How Far Strikers May Go. It is very important to
know just how far strikers may proceed in order to carry out
their wishes; for when a strike is resolved upon it is often im-
perative to its success that every laborer at a given place or
institution join in it or remain out of a given employment for a
given time. To accomplish this, any agency which does not
interfere with individual free will may be used. The line is
drawn there. Strikers may band together, may promise each
other mutual aid, may induce others to join them by any repre-
sentations which are not fraudulent, and they may do this, even
though the effect be to ruin the property of their employera; but
STRIKES, BOYCOTTS, ETC. 513

 

the moment that force is used, an assault is committed and an
actionable wrong done. Every laborer has unquestioned right
to repel force by force, and he may defend his personal liberty
even to the extent of taking life.

Any employer who should attempt to prevent his employes
from exercising their free will to the extent of their legal rights
by any means involving fraud, intimidation or force, would be
equally culpable, and would be in the same manner liable to
action, and any force used by him might in like manner be
repelled by force. .

5. How Persuasion May be Used. Peaceable persua-
sion which does not involve fraudulent misrepresentation, can be
used to any extent. An ignorant or simple-minded workman
might within these limits be prevented in a sense from exercising
his free will, and for this there would be no liability; but while
persuasion may thus be used to any extent, care must be taken
to see that it does not involve false or fraudulent misrepresenta-
tion. If strikers tell willful falsehoods respecting employers, as
for instance, that they are pecuniarly irresponsible when such is
not the case, they will become liable to action for slander.

6. Conspiracy to Prevent Employment. What may be
legally done by the individual, may not always be legally done
by a combination of individuals. A conspiracy contemplates
the combination of persons to accomplish some unlawful pur-
pose to the injury of others. If the purpose designed is not
unlawful, any combination may be formed, and there will be no
liability, so long as the end in view and the means used are not
unlawful; but if the end in view is unlawful, the conspiracy
becomes so as soon as any step is taken towards its accomplish-
ment. The steps in themselves may not involve wrong, but if
they are in pursuance of an illegal object, they then become,
unlike those of the individual, an actionable offense, and may
even be prevented by public authority.

An individual may by himself plan and plot to his heart's
content, and he cannot be interfered with until he does some act
which is illegal; but a combination of individuals unlawfully
plotting, constitutes a conspiracy which is of itself unlawful and
may be prevented or punished.

7. Statutes upon the Subject. Upon this question of con-
spiracy the legislatures of the various States have enacted laws,
514 MANUAL OF THE LAW.

 

some of which have gone to the limit, if not beyond the point, of
validity. The following provisions from the statutes of Michi-
gan (see Howell’s Mich. Statutes, Sec. 9273-76), are here given
as a sample of State legislation respecting this general subject.

The validity of the Michigan statute has not been questioned,
though the act has been severely criticised by many persons
interested in the advancement of labor.

@ If any person or persons shall willfully and maliciously by any act, or
by means of intimidation impede or obstruct, except by due process of law,
the regular operation and conduct of the business of any railroad company
or other corporation, firm or individual in this State, or of the regular
running of any locomotive engine, freight or passenger train of any such
company, or the labor and business of any such corporation, firm or indi-
vidual, he or they shall, on conviction thereof, be punished by imprison-
ment in the county jail not more than three months, or in the State prison
for a period not exceeding one year.

“Src. 2. If two or more persons shal! willfully and maliciously combine,
or conspire together, to obstruct or impede by any act or by means of intim-
{dation, the regular operation and conduct of the business of any railroad
company or any other corporation, firm or individual in this State, or to im-
pede, hinder or obstruct, except by due process of law, the regular running
of any locomotive engine, freight or passenger train, on any railroad, or the
labor and business of any such corporation, firm or individual, such persons
shall, on conviction thereof, be punished by imprisonment in the county
jail, for a period not more than three months, or in the State prison for a
period not exceeding two years.

“Szc. 3. This act shall not be construed to apply to cases of persons vol-
untarily quitting the employment of any railroad company or such other
corporation, firm, or individual, whether by concert of action or otherwise.”

“If any person or persons shall by threats, intimidations, or otherwise,
and without authority of law, interfere with, or in any Way molest, or
attempt to interfere with, or in any way molest or disturb, without such
authority, any mechanic or other laborer, in the quiet and peaceable pur-
suit of his lawful avocation, such person or persons shall be deemed guilty
of a misdemeanor, and on conviction by a court of competent jurisdiction,
shall be severally punished by a fine of not less than ten dollars, nor more
than one hundred dollars, or by imprisonment in the county jail where the
offense shall have been committed, not less than one month nor more than
one year, or by both fine and imprisonment, in the discretion of the Court;
but if such punishment be by fine, the offender shall be imprisoned in such
jail until the same be paid, not exceeding ninety days.”

8. Boycotts and Lockouts. What has been said regard-
ing strikes is equally applicable to boycotts and lockouts. Any
means may be used to prevent persons from trading at a certain
place, or from using goods of a certain make, or from accepting
SERIKES, BOYCOTTS, ETC. 515

 

employment from certain employers, which do not involve
force, fraud or intimidation. It is possible that a certain sort of
fraud may be used without liability. For instance if the leader
of a strike shall say, to his followers: “This strike is certainly
going to succeed,” when he knows that it is not, it is a frand
upon his followers, but he would not be liable to the employers
for the injury resulting. He may practice fraud upon his fol-
lowers without being liable to employers unless that frand
includes false statements about employers. Great care should
be taken not to allow a boycott to run into a system of black.
mail, If an unlawful threat is held out or an unlawful fine im-
posed, it will amount to blackmail or something worse, and will
result in harm to the cause it was designed to help.

9. Contracts Not to Engage in Labor. A contract not
to engage in trade or labor is against public policy and is not
binding upon the one who makes it. Persons whe in joining
societies agree to refrain from labor when ordered by the off-
cers of such societies, are not legally bound by such agreements,
and if they do not choose to obey they are not under any legal
liability to any one. So likewise an agreement on the part of
employers not to hire labor generally will be equally void. The
decisions on this line of subjects are not numerous nor well in
point, and the law may be said to be somewhat unsettled.
CHAPTER V.

ARBITRATION IN LABOR TROUBLES.

 

1. A Desirable Remedy. 4. Statutory Boards.
2. The Law of Arbitration. §, Standing Tribunals.
3. Compulsory Arbitration. 6. Special Tribunals.

x. A Desirable Remedy. The relation of employer and
employe should be one of friendly confidence. The real inter-
ests of the two are mutual, if not identical, and the remedy for
any failure of agreement between them should be one which
will not tend to break up friendly relations. The attempted
remedy by strikes, boycotts, and the like is one which often
brings disaster to both sides. Such methods of readjustment
breed distrust and tend to promote class feeling. A remedy
which will strengthen mutual confidence, and which will not
disturb business while the controversy is pending is therefore
greatly to be desired. Arbitration seems to be the only method
which can accomplish this. It goes upon the true assumption
that interests are mutual, and that the difficulty grows out of
failure to agree upon minor points. It enables disinterested par-
ties, whose judgments are not warped, whose minds are unbiased,
and who may, without prejudice, study all sides of the problem
and determine with clearness as to what is fairness can be done,
to adjust the differences without interrupting business, engender-
ing hatred, or precipitating conflict which may end in want, riot
or bloodshed. Arbitration should unquestionably be encouraged,

2. The Law of Arbitration. Arbitration, as a friendly
method of settling controversies between individuals, has been
long known to the law, and it has always been the policy of the
law to encourage it. The statutes of the several States regulate
the procedure with considerable minuteness. Whenever acon
troversy arises between individuals they may refer it to arbb
ARBITRATION IN LABOR TROUBLES. 517

 

trators for adjustment, and the award of such arbitrators, when
made in accordance with the statute, has all the binding force
and effect of the judgment of a court. In fact the award may
be entered in the records of the court and enforced by execution,
the same as a judgment.

But these statutory provisions respecting arbitration are not
adapted to the adjustment of differences between capital and
labor. Such differences arise most often from failure to agree,
not from broken agreements, and the methods now known to
the law will not work. There are therefore in America at pres-
ent practically no enactments respecting arbitration as a means
of settling labor troubles. A bill has been introduced in Con-
gress bearing upon the subject, and some of the State Legisla-
tures will no doubt consider the matter. In view of this fact it
may be well for parties interested to inform themselves as to
what has been done in other countries and as to what ought to
be done in this. In a recent lecture by Judge T. M. Cooley of
Ann Arbor, on the subject of arbitration, many valuable points
were suggested.

3. Compulsory Arbitration. Upon this point the learned
Judge said: 1. The law may make it compulsory and create a
statutory board for it. This is found unavoidable in England.
The speaker did not believe such boards could be of much value
here. They could not be given compulsory powers, except
when a violation of legal rights was involved. They could not
fix the terms of future employment or wages, for that would be
making contracts for parties. A law to compel arbitration
would be a species of slavery.

4. Statutory Boards. 2. A statutory board to which, by
consent, the parties might appeal without compulsion might be
of some use, but not much.

5. Standing Tribunals. 3. Standing tribunals might be
established in any particular trade or business by a co-operation
of employers and men, submission to whose mandates would be
simply implying honorary obligations on both parties. This is
found very valuable in England, where it is composed of equal
numbers of employers and men. It is always understood that
an endeavor is to be made by these to settle the controversy
without calling in outside parties, but if impracticable, an umpire
is agreed upon, It very seldom happens in England that either
518 MANUAL OF THE LAW.

 

side refuses to abide by the decision. Lockouts and strikes are
thus avoided. This would be particularly valuable in America,
especially in railroads. Each company, with their own men,
could establish such a board. Such action would build up a
feeling of common interest and union; would make the com-
pany more regardful of the interests of the men, and vice
versa. No difficulty is in the way of this except the unwilling-
ness of the parties.

6. Special Tribunals. 4. A special tribunal tosettle a par-
ticular controversy is often serviceable. Arbitration ought te
come into general use. Every successful instance of its use has
a valuable educating influence to prevent hostile resorts, but can
have no application to a case where outside parties, for reasons
of their own, undertake to compel employers to discharge all or
any of their men.
CHAPTER VI,

LAWS FAVORIN G THE ORGANIZATION OF
LABOR.

 

The rapid growth of labor organizations during the past few
years, and the evident good design of the movement, have led to
the enactment of statutes providing for thorough organization
and incorporation of such societies, in certain cases. In Mich-
igan, for instance, there is a law for the incorporation of Knights
of Labor Assemblies, and another for the incorporation of all
other societies whose object is to promote the interests of trade
and labor.

1. Charters for Knights of Labor. The statute (Laws
Mich., ’83, p. 171) provides, as follows:

Sxc. 1. Any local assembly of the order of the Knights of Labor of North
America, duly organized within this State under and pursuant to the pro-
visions of the Constitution and laws of the general assembly of the Knights
of Labor of North America, may become a body corporate and politic in
the manner following, viz:

First—At a regular meeting of such local assembly a resolution shall be
put toa vote of the members thereof present, expressing the desire and
determination, of such local assembly to be incorporated, and directing the
officers thereof to perfect such incorporation, and if such resolution be
adopted by a two-thirds vote of all members in good standing, it shall be
declared adopted, otherwise lost.

Second—On such resolution being passed, the master workman and
recording secretary of the assembly shall prepare articles of association
under their hands and the seal of the assembly, setting forth the number of
persons then in good standing in the assembly desiring incorporation, the
mame by which the assembly is known and its number, the date, of its
organization, a copy of the resolution mentioned in the first subdivision of
this section, the corporate name by which the assembly shall be known in
the law, the general object and purpose of the association, which shall in
no way conflict or be inconsistent with the object and purpose of the gen-
520 MANUAL OF THE LAW.

 

eral assembly of the order of Knights of Labor of North America, as stated
in its constitution, nor in conflict or inconsistent with any law of the United
States or of this State, and the period for which it is corporated, not
exceeding thirty years. :

Tkird—A copy of such articles of association shall be filed with the clerk
of the county in which such corporation shall be formed and, together with
the affidavit hereinafter named, shall be recorded by the county clerk in a
book to be kept by him for that purpose.

Fourth—The master workman and recording secretary executing such
articles of associations shall make and annex thereto, before filing, an
affidavit stating that they are respectively members of and occupy the
official positions above named in said local assembly, that the resolution, a
copy of which is set out in the articles of association, was duly adopted at
a regular meeting of the assembly, and by a two-thirds vote of all members
in good standing, and that all the statements in said articles of association
are true to the best of their and each of their knowledge and belief, and
that said local assembly is organized and acting under the constitution of
the general assembly of the Knights of Labor of North America.

Szc. 2. When the foregoing requirements are complied with, the local
assembly shall be a body corporate and politic by the name expressed in
such articles of essociation and by that name shall be a person in law, capa-
ble of suing and being sued, and a copy of said articles of association and
affidavit duly certified by the clerk in whose custody the same may be,
under the seal of the proper county, shall be prima facie evidence in all the
courts of this State of the existence and incorporation of said local assem-
bly.

Szc. 3. A copy of such articles of association, with an affidavit attached,
as provided in section one of this act, duly certified by the county clerk of
the proper county, may be filed with the Secretary of State, copies of which
duly certified, shall in all the courts of this State be grima facie evidence
of the existence and incorporation of said local assembly.

Szc. 4. Any district assembly of the order of Knights of Labor of North
America, organized and acting under and pursuant to the constitution and
laws of the general assembly of the order, may become incorporated by
adopting a like resolution as provided in section one of this act, executing
articles of association under the hands of its district master workman and
district recording secretary and the seal of the district assembly, containing
like statements as those required in articles of association for the incorpora-
tion of local assemblies, with a like affidavit annexed made by the above
named officers, and fillng the same with the clerk of the county where such
district assembly is incorporated, which articles of association and affidavit
shall be recorded by the County Clerk. A copy thereof duly certified by
the clerk of such county shall have the same force and effect as evidence, as
is provided in section two of this act. A certified copy of such articles
may be filed with the Secretary of State, in the same manner and shall
have the same force and effect as evidence as is provided for in said section.

Sxc. 5. Every corporation formed pursuant to the provisions of this act,
may take and hold personal and real property, so far as the same may be
LAWS FOR THE ORGANIZATION OF LABOR. 521

necessary or convenient for the purposes of the organization, not exceeding
fifty. thousand dollars in amount, and may convey, incumber and deal with
the same as it may from time to time determine by a majority vote of all
members in good standing, Provided, That no property held and owned by
such corporation shall be sold or incumbered except at a regular or special
meeting of the assembly, five days written notice of which shall have been
given to every member in good standing, and at the time being within the
jurisdiction, which notice shall briefly state the disposition intended to be
made of such property, describing it, and shall be signed by the district
recording secretary or recording secretary, as the case may be, and with
the seal of the assembly attached.

Sxc. 6, The management, direction and control of the propertv and
business of such corporations shall be vested in such of its officers and
members as a majority of its members present, and acting thereon, at any
regular meeting of the assembly, shall from time to time determine.

2. Societies to Promote Interests of Labor. The
other statute referred to provides that any number of persons,
not less than five, may associate themselves together and become
a body corporate for the improvement of their moral, social and
material interests, the regulation of their wages, the laws and
conditions of their employment, the protection of their joint and
individual rights in the prosecution of their trades or industrial
avocations, the collection and payment of funds for the benefit
of sick, disabled or unemployed members, etc., etc. (Laws
Mich., 85, 163.)
CHAPTER VIL

SPECIAL LAWS FOR THE PROMOTION AND
REGULATION OF LABOR.

s. Labor Bureaus, etc. q Statutory Safeguards.
2. Prevention of Emigration. 5. A Lega! Pay’s Work.
3. Federal Restriction.

There will be found in the statutes of the States generally,
various provisions for the regulation of labor and the promotion
of industrial interests. Some of these are the result of recent
labor agitations and are interesting as showing the direction and
scope of legislation so secured. Among them are the laws
establishing bureaus of labor statistics, laws restricting emigration,
and regulating the time of labor, and provisions for the safety
and comfort of operatives.

x. Labor Bureaus. For the purpose of securing informa-
tion as to the industrial condition of the country and the needs
of the laboring classes, there are in some States labor bureaus
operating as a part of the State government. In Michigan the
institution is called the Bureau of Labor and Industrial Statis-
tics, and its chief is styled the Commissioner of Labor.

Its duties are to collect, assort, systematise and present in the
form of annual reports, statistical details relating to all depart-
ments of labor in the State. It is directed to inquire particularly
concerning the hours of labor, the number of laborers and .
mechanics employed, the number of apprentices in each trade,
the nativity of mechanics and laborers, the wages earned, the
savings kept, the mental and moral culture with age and sex of
laborers, the number and kinds of accidents occuring, the sani-
tary conditions of institutions where labor is employed, the use
SPECIAL LAWS, 823

 

of intoxicating liquors and their influence upon the health and
mental condition of the laborer, the proportion of married labor-
ers and mechanics who live in rented houses, with the average
annual rental of the same, the value of property owned by
taborers and mechanics, etc., etc.

Also information regarding the subjects of co-operation,
trades unions and other labor organizations, strikes and other
labor difficulties and their effects upon labor and capital.

The Michigan Bureau has been in operation a little over two
years, and its reports have contained much valuable information.

2. Prevention of Emigration. Hitherto it has been the
policy of the States to encourage emigration in every possible
way. Commissions of emigration have been established with
powers to take extreme means to secure the incoming of for-
eigners of all classes; and even the importation of laborers under
contract, to be placed in direct competition with our home labor,
has not been discouraged.

The effect has been to overstock the labor market in many
lines to an extent sufficient to reduce the value of labor to a level
common with that of foreign and over populated countries,
Since the organization of societies for the investigation of labor
problems, a decided reaction has set in, and among the first fruits
of this reaction is the law of Congress recently enacted prohib-
iting the importation and migration of foreigners and aliens
under contract to perform labor in the United States.

3. Federal Restriction. The effect of the law of Con-
gress is to make it unlawful for any person, partnership wr cor-
poration to prepay the transportation or in any manner to
encourage the importation or migration of any foreigner into
the United States under agreement or understanding, that he
shall here perform labor of any kind.

All contracts made between any person, company or corpora-
tion, and any foreigner, to come here for the purposes above
indicated are utterly void.

Every violation of the above provisions is punished by a fine
of one thousand dollars. Every master of a vessel who shall
knowingly bring to the United States any foreign laborer, me-
chanic or artisan, who has previously entered into a contract to
eome here and perform labor, is deemed guilty of a misde-
meanor, and on conviction, is punished by a fine not exceeding
524 MANUAL OF THE LAW.

 

five hundred dollars. Every foreign laborer, mechanic er
artisan who comes here as aforesaid, may be imprisoned for a
term not exceeding six months,

The act is not intended to prevent the free emigration of
foreigners to this country, nor the hiring of such foreigners
after they have voluntarily come here, nor is it intended to pro-
hibit any individual from assisting any member of his, family or
any relative or personal friend to migrate from any foreign
country for the purpose of settlement in the United States.

The spirit of the act is simply to prevent contracting with
foreign, cheap labor to be brought into competition with our
own workmen.

The act was approved by President Arthur, February 26,
1885.

Besides this act there were others passed, one regulating and
practically prohibiting the emigration of Chinese to this country.

4. Statutory Safeguards. Among the statutory regula-
tions for the betterment of the laboring. classes, may be men-
tioned those relating specially to the employment of women and
children. For instance, many States prohibit the employment
of any child under the age of fourteen years, unless such child
shall attend some public or private school at least four months
during the year.- A provision similar to this is in force in Mich-
igan, (Laws, 1885, p. 37.) and is no doubt violated in a great
many cases.

Another statutory provision is that preventing the employ-
ment of any person under the age of eighteen years, or of any
woman of any age in any factory or shop of any kind, for a
longer period than an average of ten hours a day with at least
one hour allowed for dinner.

An equally important regulation is the one requiring that
seats should be provided for the use of females who are em-
ployed in factories, stores and shops: The Michigan statute
upon these points requires the chief of police in cities, and the
supervisors in townships to see that the laws are enforced.

A provision even more important than the foregoing, is that
requiring ample fire escapes to be placed upon all buildings,
factories, mills, warehouses or workshops where operatives are
employed.
SPECIAL LAWS. 525

 

The enumeration of these statutory safeguards might be
further continued, but the above are sufficient to indicate their
general scope and character.

gs. A Legal Day’s Work. The length of a day’s work is,
as has been stated, usually regulated by custom. Persons hiring
out to work in any trade are presumed to engage with reference
to the custom of the trade, and unless they make a special con-
tract to the contrary, they are bound by the custom. In many
States, however, there are statutes providing that, in the absence
of a special agreement on the point, ten hours shall constitute a
day’s work, in all shops, factories, mills, lumber camps, etc.
Such is the law in Michigan. (Laws, 1885, p. 154). If em-
ployers require their employes to work more than ten hours,
they must pay for all over-time at the regular fer diem rate,
unless a special agreement is made to the contrary. This law
does not apply to farm laborers, nor to domestic servants.
PUBLISHERS’ NOTICE.

 

We want representatives in every Township of the
United States for the sale of this valuable work.

Teachers, Students, Clerks, Ministers and Farmers,

Can secure profitable employment by corresponding
with the publishers of this book. This work is used as
a text book in many Universities and Colleges, and
being highly recommended by leading Judges and Law-
yers of the country, proves the high standing of this
book. As it treats the Common Law, which never
changes, this book is bound to be a standard work for

years to come. It is practical and useful,
A Necessity in Every Family,

And in selling it our agents are, at the same time, learn-
ing something that will be of value to them all through

their business career.

We sell our publications by subscription only, we give

exclusive control of field assigned, and protect our

agents in it.
For full particulars and our
SPECIAL TERMS TO AGENTS.

Address the Publishers of this volume.

For the correct address SEE TITLE PAGE,
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