Elements ' ' \ '^^^m^^^^^^^^m. (IJnrnpU ICaui ^rl^nol Hibtary Cornell University Library KF 386.L47 A treatise on the elements of law :desig 3 1924 018 806 939 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018806939 A TREATISE ELEMENTS OF LAW. DESIGNED AS A Text-book for Schools and Colleges Hand Book for Business Men and General Reader. BY J. ROSS LEE, A. M., LL. B., Principal of the Law Department of the Ohio Normal University, Ada, Ohio. ADA, OHIO. WAGNER BROTHERS, 1886. Entered according to Act of Congress, in the year 1886, by J. ROSS LEE, In the office of the Librarian of Congress, at Washington. Press of Hann & Adair, Columbus, Ohio. PRE KAC K. To The Reader: • INCE "Ignorance of the law is no excuse," when a party is brought into a court of justice, it be- ^~ comes highly important that all should know the permanent and fundamental principles of the law by which their acts and contracts are judged. To provide for the student, the business man, and the general reader, a tsook containing the permanent and fundamental principles of the law, set forth in clear, plain and simple language, without the introduction of technical terms, has been the aim in writing this book. It is not intended to be an " every man his own law- yer " manual. It is not designed to supersede the necessity of professional advice. On the contrary, its chief value, it is thought, will consist in pointing out the occasions when such assistance is heeded, and to prepare the recipient to appreciate it more fully when rendered. It is thought that the information contained in this work should form a part of the knowledge sought by all desiring to possess a practical education. The teachers in our Common Schools and High Schools will find that it contains much general informa- tion which they can use to good advantage in the school room. Especially, however, for the young men who are now in Normal Schools, Colleges and Univer- sities, preparing themselves for the active duties of a business life, has this work been prepared. If on their 6 ELEMENTS OF LAW. graduation day some old Socrates should meet them and, being informed that they have just graduated, should ask them a few of the following questions: What is law ? And what are the chief classes ? What is a contract? And what contracts are required by law to be in writing? Can you draw a contract in the proper form? What is a promissory note? And can you tell a negotiable from a non-negotiable note? Did you ever own a bill of exchange? What is a court? What is the jury system? Do you think it ought to be abolished? Why? Why do we have a dual system of courts in the United States? As you have a di- ploma, you say you have a right to be called a gradu- ate; but what is a right? What are your absolute rights, and wherein do your civil and political rights differ? How many of these questions could they answer if they had only completed the usual curriculum of studies? Yet every young man should be able to an- swer all of them. It has been the aim of the author in writing this work to furnish answers to the above questions and many others just as important and to set forth the subject matter in a clear and forcible manner. It was with a purpose that all logical analyses of subjects were abandoned; terms in many cases describ- ed rather than defined; and each new term explained when first made use of This led to many circumlocu- tions of expression not otherwise to be justified or ex- cused. The law student will therefore look in vain for that terse, formal and logical mode of expression to be found in a text book intended for the regular student of law. I desire to acknowledge in a very particular manner my obligations to R. L. Starr, Esq., Bryan, Ohio, and to H. L. Roberts, Second Lieutenant, 19th Infantry, U. S. Army, for the valuable suggestions and assist- ance rendered in the preparation of this work. The Author. Ada, Ohio, July 1st, 1886. In GQemop^y — OF — t THE CHRISTIAN HOME In \a^hich I WAS Reared, AND AS A TOKEN OF LOVE, "Gl^ls Wofl^ is r\e§pect|-allv| De6icate6 —TO" + 1VLY FATHER AND MOTHER,-^ TI^OMAS M, AND l^JARY L LEE, , THE AUTHOR. Table of Contents. CHAPTER I— What is law? , . . 13 Classes 14 Man as a member of society 14 Kinds of law '. 15 Why we came to have written law 18 Kinds of customs 19 Kinds of statutes 19 How the laws of the United States came to be influenced by the English common law 19 Objects of laws 21 Kinds of rights 21 The English Constitution 25 CHAPTER II— Contracts— Definition ; 26 Analysis of the term agreement 28 of obligation 30 Object and classification of 32 Elements 33 Proposal and acceptance, rules of 34 Statute of frauds 44 classes of contracts affected by, class first , 48 . class second 48 class third , 51 class fourth 51 class fifth 52 Consideration, kinds of 54 Capacity of parties to make contracts 56 Assent, genuineness of 61 Mistake 62 Misrepresentation 67 Fraud 68 Duress 69 Undue influence 69 Legality of the object of contracts 70 Why contracts should be reduced to writing 77 Forms 81 10 ELEMENTS OF LA IV. CHAPTER III— Principal and Agent 82 Kinds of agents °4 Who may be agen ts ^° Duties of agents °° Liabilities of agents 9° How agency is terminated 9^ CHAPTER IV— Partnership — Elements of 97 How formed 9^ Kinds of partners i°3 Who may be partners 105 The power of partners 106 Liabilities of partners 109 Rights and duties of partners no How a partnership is terminated in Effect of dissolution 114 Partnership property 116 Forms of partnership articles 117 CHAPTER V — Negotiable Paper — Introduction and definitions. 121 Elements of bills and notes 126 Parties to negotiable instruments 12S Indorsement 131 Kinds of indorsement 132 Duties and liabilities of parties to negotiate instruments 137 of the drawer 138 payee 138 drawee or acceptor 142 indorser 144 indorsee or holder 146 Why should notice of dishonor be given? 146 Who are prior parties? 147 When and where must notice be given? 14& What must the notice contain ? 1 50 Surety 152 Guarantor 157 Rights of a bona fide holder 158 Protest 167 Forms of bills and notes 168 Interest 1 7a CHAPTER VI— Property— Real 172. Ownership 174 Estate 174 Title. 174 Feudal system 1 74 Allodial estate and fee estate 176 Inheritance i yg Qualified or base fees igl Recapitulation of terms lg2 Deed " jg^^ Dower ig^ Curtesy ,gg Rules of descent in Ohio jgg Mortgages '\' j^, Lease ,gj^ CONTENTS. 11 Personal property igc CHAPTER VII— Sales— Definition and elements 197 Sale of specific chattel, conditionally 201 Sale of a chattel not specific 204 Effect of fraud on the sale 208 Warranty 212 Delivery, Acceptance, Payment 219 Lien 220 Stoppage in transitu 220 Remedy for breach of contract 225 CHAPTER VIII— Bailments 229 Classes of 230 Deposit 23 1 Mandate 23 1 Loan 231 Pawn . 232 Hiring ; . 232 Inn-keepers 235 Common carriers of passengers 237 CHAPTER IX— Wills 241 Definitions 242 Who can make a will 242 Written wills 244 requisites of 244 revocation of 249 what may be disposed of by 249 Legacy 250 Form of a will 252 Unwritten wills 254 Gifts causa mortis 255 CHAPTER X— Taxes— Kinds 258 CHAPTER XI— Domestic Relatioi^s— Definition of terms 264 Master and servant 264 kinds of servants 264 Husband and wife 272 marriage 272 requisites of 273 mental capacity 273 Age 274 Consanguinity and affinity 275 Race and color 276 Prior marriage 276 Duress 276 Fraud or deception 277 Formalities of the ceremony 277 parent and child 279 guardian and ward 280 CHAPTER XII— Slander and Libel— Slander 282 Libel.... 283 12 ELEMENTS OF LAW. CHAPTER XIII— Criminal Law • 286 Crimes, misdemeanors and felonies - '^'->1 indictment and verdict 289 manslaughter 290 murder 291 arson 293 burglary 294 larceny 296 embezzlement 297 assault and battery 298 affray 299 bribery 299 forgery 299 counterfeiting 3°° perjury 3°' self defense 3°4 CHAPTER XIV - Corporations 308 Kinds 310 CHAPTER XV— Courts— Definition of State, Government and Administration 319 Federal courts 322 State courts 324 Recapitulation 324 Jurisdiction ■. 324 CHAPTER XVI— Jury System 327 Kinds of j uries 328 How Grand and Petit jurors are chosen in Ohio 328 Oath of grand jurors 330 Indictment 331 Verdict 332 Arguments in favor of jury system; by Chas. S. May 334 Arguments against the jury system; by C. H. Stephens 346 CHAPTER XVII— Is our law just to the poor? by Dean Kent 361 CHAPTER XVIII— The Citizen and the State.. 381 The Elements of Law. CHAPTER I. WHAT IS LAW? Many definitions have been given in answer to the ques- tion, Wkai is Law? Of the many, perhaps none more fully define it than that of Hooker, which is in these words : "Of law there can be no less acknowledged than that her seat is the bosom of God ; her voice the harmony of the world ; all things in heaven and earth do her homage ; the very least as feeling her care, the greatest as not exempt from her power; both angels and men, and crea- tures of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of peace and joy." In its most general sense, law is a rule of action. Little idea is conveyed by this definition. Perhaps few terms whose use requires equal precision, serve in so many diverse meanings as the term law. In its root it signifies that which is laid down, that which is established. "In the largest sense," says Mon- tesquieu, "laws are the necessary relations which arise from the nature of things; and, in this sense, all beings have their laws : God has His laws, the material universe has its laws, intelligences superior to man have their laws, animals have their laws, man has his laws." Law in its broadest sense is a science. As such, it treats of the theory of government, the relation of States to each other and to their citizens, of the rights and obliga- tions of States, of individuals amon^ themselves, and to each other. 14 ELEMENTS OF LAW. Law is generally divided into four classes, viz : Natural Law, International Law, Public Law and Private Law. Natnral "LttkMi is the Divine will, or dictate of right reason, showing the moral deformity or moral necessity there is in any act, according to its suitableness or unsuit- ableness to a reasonable nature. Sometimes used of the law of human reason, in contradistinction to the revealed law, and sometimes of both, in contradistinction to posi- tive law. International Iiaiv includes the rules of conduct regulating the intercourse of nations. A Public Law is one that effects the public, either generally or in some classes. Private Iiaiv is a term used to indicate the law that relates to private matters which do not concern the public at large. It is of the last class that we shall speak chiefly. Man as a member of society, must be obedient to the "rule of civil conduct prescribed by the supreme power in the State." He no longer can claim the right to conduct himself as it may please his fancy. As a member of society, he had a share in saying what should be the rule of civil conduct in that community, and, when that rule is once authoritatively announced by the supreme power, he should obey it. If he considers it not the proper rule, it is his privilege to win others to his view, and, when he has a majority on his side, change it. But unless he can so change it, the necessity of organized society demands his submission to it. Much of the nature of municipal law depends upon the form of government. The rules of civil conduct prescribed by the supreme power of the State of Ohio, which rules are termed the municipal law of Ohio, differ widely from those that we would^ expect to find in Russia or China. The more perfect the form of government, and its adapta- WHAT JS LAW? 15 tion to the peoples under it,' the better will be the munici- pal law of that State. Sir Wm. Blackstone truly says: "In general, all man- kind will agree that government should be reposed in such persons in whom those qualities are most likely to be found, the perfection of which are among the attributes of Him who is emphatically styled the Supreme Being ; the three grand requisites, I mean, of wisdom, of goodness and of power; wisdom to discern the real interest of the community; goodness to endeavor always to pursue that real interest ; and strength, or power, to carry this knowledge and intention into execution." The great question to be answered, after they have so agreed, is, how shall those persons be ascertained? The answer to this question designates the form of government preferred by the individual. But, be the form of government what it may, when it has once spoken its will, that will is law and must be obeyed by all the citizens of that government. Kinds of Laiv. In the United States the will of the various State legislatures, which constitutes the laws of the various States, and the will of the National congress, which constitutes the laws of the Federal government, are all written. A writing containing the will of congress or a State legislature is termed a statute. - Laws created by statute are called written laws," "leges scripts." Laws that owe their origin, not to a direct expression of the will of a legislature, but to cus- tom, are called "unwritten laws," "leges non scriptm." The student no doubt has heard much concerning ' 'the common law of England," and, that he may fully under- stand what is meant thereby, we shall give a brief expla- nation of its origin and its influence upon the laws of the United States. The "common law" is spoken of as the unwritten law of England, in contradistinction to the written law, which 16 ELEMENTS OF LAW. is the will of Parliament expressed in the form of a statute. Parliament had nothing to do with the origin of the common law. It is anterior to Parliament. According to some writers, the principles of the common law are as old as the primitive Britons, and while England has passed through various mutations of government, these principles have remained unchanged and unaltered. In order to get a clear view of the manner in which these rules were formed into customs, having the binding force of a law, let us suppose an island, inhabited by a people organized under an absolute monarchy. Under such a form of government, if a dispute should arise between two of the citizens, there is no one to whom they can appeal their case for decision but the king. Whatever decision the king may render, it must be the result of his own judgment, for there is no criterion by which he can be guided. When the decision is once made it is, of necessity, iinal. There can be no higher power to change it in any way. This then, is the first known -will of the king on the point which was in dispute. The decision being made, all the citizens of the island will hear of it, and thereby know the will of the king on that particular point. Knowing the will of the king, and that he has the power to enforce obedience to it, the citizens will obey it that they may not incur the displeasure of their sovereign. The king being the sovereign power in the island, and the decision being his will, we are justified in caUing the decision a law, which we saw, was defined to be the will of the sovereign power in the State. Suppose the king causes his first decision to be written down and placed in some convenient place for safety. Some years pass away and another dispute arises between other two of his subjects. They appeal their case to the king. He examines their cause and renders a decision. WHAT IS LAW? 17 This, likewise, becomes a law. But, suppose the sec- ond point in dispute was identically similar to that of the first, the king, instead of rendering a second decision, would call to their mind his former decision, and, declaring it to be a law, would proceed to judge the second case by that law. In this manner, as disputes arose on various points, the king, from time to time, would make decisions, and each decision, being his will as to that case, would become a law on that point. The mind can easily see how, in the course of time, nearly every imaginable question of dispute would be brought before the king, and, being passed upon by the king, would thereby establish the law upon every such point. Likewise, if the king became convinced, when a second case arose on the same point, that his first decision was erroneous, he could change the second decis- ion, and make it conform more nearly to reason and justice. In such a case, the last decision, and not the first, would be the law, because it is the will of the sovereign power of the State. Now, from this simple supposition, let us pass to the real case in hand, the Island of England. The king, not desiring to be troubled with passing on questions of dispute between his subjects, established courts for that purpose. He delegated to these courts all his power to make decisions, only reserving the right to review and alter them, if he was asked to do so by the parties, and should deem the decision of his judge erroneous. A dispute arising between two of the subjects as to what was right and what wrong, they would resort to this, court and ask the judge's opinion. When he gave this in the name of the king, it became a law. The opinions of the court would be known and talked of throughout the neighborhood where these parties lived. Thus it was that the people found out what was the law 18 ELEMENTS OF LA W. by which they were to be governed. By and by another dispute arises. One of the parties affirms that the former decision was so and so, the other denies it. They appeal to the court for a decision. The court causes the first decision, which has been kept on file, to be examined, and then gives judgment. As a matter of fact, the decisions were not, in the early history of the island, kept in writing, but, by a fiction, the judge was supposed to know all the past decisions, and, when he made a new decision, it was taken to be like some old one that was supposed to have once been rend- ered in a similar case, and which had been observed by the citizens in all their actions since. This uniform action is termed a custom. Customs form the habits of a people. To ascertain what the old decision was, the judge exam- ined the habits of the people which were supposed to be the result of customs founded on previous decisions. Hence we say, custom has the force of decisions or laws. Now, if we were to define "common law" as the customs of England, the expression would convey a clear idea of what we mean. Likewise, when we say that the common laAV is the unwritten law, the statement is clear. The question arises. Why did we come to have a written la^w? It is a result of necessity. Courts were established in every locality or community. Each judge was supposed to be a perfect repository of the com- mon law decisions. These decisions being the result of judgment, would, naturally, differ in many respects, for "men's judgments differ on the same point. We find that these judgments were rendered so as to give validity to the transaction of small groups of persons living in particu- lar localities, and without any reference to the degree or the mode in which those transactions affected the well being of all other persons in the community. WHAT IS LAW? 19 They, of course, would agree upon some points, and then that custom on which they all agreed was termed a general custom. Those on which they differed, particular or local customs. All the citizens must obey the general custom, but only those of each locality, the local custom. This would naturally lead to great inconvenience. A Parliament would be called by the king, and they would examine the customs. If they were considered as being too lax in some points, they would pass a statute restrict- ing the custom ; such a statute was termed a restraining statute. If they thought the custom too much re- stricted, they gave it more scope, and termed that statute an enabling statute. Thus we see that the unwritten or common law came, in time, to consist of general and particular customs modified by restraining and enabling statutes. "It was not," says Sir Matthew Hale, "the product of the wisdom of some one man or society of men in any one age, but of the wisdom, counsel, experience and observation of many ages of wise and observing men." So much for the origin ; let us next determine hew the laivs of the United States came to be influ- enced by the English common law. To-day, when emigrants come to this country, they must obey the laws of the United States, because they come to be citizens of this government. But the case was -entirely different when the Pilgrim Fathers landed on our shores . There was no organized government which they sought to enter as citizens. They were called upon to establish a form of government and to provide lav/s for their protection as members of that organization. How natural it would be for them to say that "The laws of the country from which we have come shall be the laws under our new government." It would have been absurd for them to have rejected all the laws with which they were 20 ELEMENTS OF LA W. SO familiar, the meaning of the language of which they all knew, and to have tried to establish a new system of laws and penalties. So we find the Pilgrim Fathers adopting the laws of En- gland to be their laws ; but what laws of England did they adopt? The written or unwritten, the statute or the " com- mon law?" It was the common law. But the common law of what period or time? It would, from necessity, have to be the customs of England as modified by re- straining and enabling statutes up to the time of James I, of England, who was king of England from 1603 to 1625. As the Colonies were under the control of the English Parliament until 1776, any change made in the common law of England, from the time of James I, till the reign of George III, that was applicable to the Colonies would work a like change in the common law of the Colonies; so that tlie common laxir of the States, 'nrhen they threiv off their allegiance to England, iras the common laiv of England as modified by statutes up to that time. Thus we see how the laws of the original States became influenced by the com- mon law. As the pioneers of the West were chiefly from the Eastern or original States, we see how easy it was for the principles of the common law to pass into each of the new States and permeate every fiber and tissue of their laws. There is no common law in the National Government. When we wish to know the powers of the Nation we look to see if the power has been delegated to it in the Constitution. If it has not, it does not possess it. Looking at the Constitution of the United States we find that the common law has not been delegated to the National Government. If the people should see fit to do so, it could be done by amendment. "Some of the States have abolished the " common law," and make all laws of the State depend upon the statutes IVHAT IS LAIV? 21 of the State. If anything is not provided lor by statute, the courts can give no redress. There is no common laiv in Ohio. It was repealed, by statute in 1806. How- ever, the principles of the common law have been care- fully gathered up and put into statute, and, in the con- struction of all words, the courts have resort to the com- mon law principles as guides. Whether it is wise thus to do away with the common law is doubtful. Experience has shown that it is impos- sible for any man or class of men to embody every neces- sary principle in a statute. Some unthought of emergency has not been provided for, or some unjust principle has been overlooked, and thus remains a part ot the law; and so it becomes necessary to add supplements to reach new emergencies, amendments to eliminate a pernicious prin- ciple, and explanations to give the sense in which the words are used, because the language of statutes bears more than one construction. We have been led into so long a discussion of this point that the student may fully understand the meaning of the term " common law," and hope that he will not be dis- pleased with so lengthy a discussion. Objects of Laws. The objects of the laws of any State are, naturally, so very numerous and extensive that, to be able to consider them at all, we are compelled to classify and distribute them methodically under proper and distinct heads. These chief divisions are Rights and Wrongs, each of which are again divided— Rights into Rights of Per- sons and Rights of Things, Wrongs into Private and Public Wrongs. 1. Rights of Persons.— A right is a well founded claim enforced by sanction. No right can exist in favor of you without a corresponding duty resting on me to per- form it. 22 ELEMENTS OF LA W. In a state of nature it is evident that the rights and duties of men differ materially from those that exist in an organized society. When men formed society they of necessity gave up some of the rights which they possessed by nature, and which are termed natural rights, and took upon them other rights and duties, which were the fruits of organized society, and are termed relative rights. They did not give up all their natural rights ; some were only restrained or curtailed, the others brought over with them from their unorganized state into the new organized society. The ones thus brought into the organized society are termed absolute riglits. Some writers will not acknowledge a time antedating political organization, and, therefore, antedating law, in which every individual has rights. The absolute rights are the natural rights so far restrained, and no farther, as is necessary to organized society. These rights are what we are pleased to term our liberties. In the United States we term them natural, inherent and inalienable rights, given to us by the law of nature. Natural or absolute rights, therefore, may be defined to be rights which are so fundamental and so essen- tial that they ought to be universally conceded as belong- ing to man as man and universally recognized and pro- tected by government. Absolute rights and relative rights, taken collectively, are termed civil rights. The student must not confuse civil rights with political rights. Political rights con- sist in the power to participate, directly or indirectly, in the establishment or management of the government. One may possess civil rights but not political rights, but he can not possess political rights without also possessing civil rights. In this country every male citizen possesses a right to vote and of being elected to office. There is WHAT IS LAW ? 23 one restriction on the political rights of a naturalized citi- zen ; he can not be elected President. Civil rights are also called legal rights, in contradis- tinction to moral rights. The law enforces civil rights, but, from their very nature, the law can not enforce moral rights. It has been tried in the past, and the Spanish Inquisition is a standing commentary on its success. None but a blind, bigoted fanatic will endeavor to compel another by law to worship God, or for a moment will sup- pose that the decree of a court can make an infidel " wor- ship in spirit and in truth." The absolu^te rights are generally divided into three classes, namely: Personal Liberty, Personal Security and the Right of Private Property. To these classes Chancel- lor Kent adds a fourth — the right to the free exercise and enjoyment of religious profession and worship. This he says ' ' may be considered as one of the absolute rights of individuals, recognized in our American constitutions and secured to them by law." By personal liberty is meant the right of free loco- motion — to go about at will. The exercise of this right is subject to restraint only by arrest and imprisonment according to due process of law. The phrase ' ' due pro- cess of law " is defined by Daniel Webster in his Dart- mouth College speech thus : ' ' The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of general rules which govern society." The words "due process of law" and "law of the land " are used interchangeably, and mean the same thing. Hence, any unlawful arrest or detention of the person is a violation of this absolute right, for which the party injured can have redress in the courts. By personal security is meant the right to the legal and uninterrupted enjoyment of life, limb, body, health and reputation. 24 ELEMENTS OF LA W. The word limb, as used in the definition, means those members which may be of use to one in a fight so as to aid or defend himself; the rest of his person is termed the body, in the sense in which it is used in the definition. Whenever a person is unlawfully killed, or maimed, or beaten, or given deleterious victuals, or slandered, we say his absolute right of personal security has been invaded. By the right of private property we mean the right to secure, possess, enjoy and dispose of property in any manner the person may see fit, so long as he does not thereby interfere with the like right and privilege in others. These rights are secured to the American citizen by the National and State Constitution. But we are not the only people that possess or enjoy them. We derived them from England. At this point it will not be out of place to explain what we mean by saying that England has no written constitu- tion. Many get the idea that what is called the English constitution cannot be found written in books. This is an error. Here the word unwritten is used in the sense that there never was a convention held in England which drew up their constitution and reduced it to writing as was done in the establishment of our constitution. Their con- stitution was the growth of centuries. From time to time Parliament would gather together all the great and leading principles and put them into the form of a statute, which they called a declaratory statute, that is, what it contained was the common law principles of their constitution. Thus it came in the course of time that the English had reduced their constitution (the word constitu- tion means simply the fundamental law) to writing, and the Englishman can read and study his constitution as well as we can ours. In England the Parliament has the power to alter or WHAT IS LAW? 25 change the constitution at will, while in the United States we proceed in a more deliberate way. The English constitution consists chiefly of the follow- ing state papers of England, namely: Magna Charta, granted by King John, on the 19th of June, 1215, on a little island on the Thames, within the county of Bucking- hamshire, and which is still called "Magna Charta Island." The preliminary interview was held in the meadow of Running Mede, or Runny Mede, and this' is why it is sometimes said that Magna Charta was granted at Running Mede. 2. The Petition of Riglits, granted by King Charles I, in the third year of his reign, 1628. 3. The Habeas Corpus Act, passed in the thirty- first year of the reign of King Charles II, 1679. 4. The Bill of Rights, which embodied in statutory form many securities to personal rights, and was presented to, and granted by King William and Queen Mary, when they were called to the English throne after the dethron- ing of King James II, in 1689. It will be seen from the date of these statutes that they were all well established long before our fathers thought of founding a new govern- ment. And, when that time came, they brought over and engrafted into our constitution the essence of these statutes, so that to-day, if an Englishman and an Ameri- can were desirous of studying together the absolute rights of each other, they could each enter the same class and pursue their studies together, and each use his own con- stitution as a text-book, without the necessity of purchas- ing any other, so similar are the absolute rights of an Englishman and an American. We can go no further in a discussion of absolute rights as an object of the law. Any further discussion, together with all the relative rights, would not be within the scope of this work. 26 ELEMENTS OF LAW. The right of private property will be spoken of. inci- dentally, in connection with our chapters on real and personal property, while wrongs will be reserved for a separate chapter. CHAPTER 11. CONTRACTS. Definition. Something of the importance of the law of contracts may be gathered from the following words of Professor Parsons : " The Law of Contracts, in its widest extept, may be regarded as including nearly all the law which regulates the relations of human life. Indeed, it may be looked upon as the basis of human society. All social life pre- sumes it, and rests upon it ; for out of contracts, express or implied, declared or understood, grow all rights, all duties, all obligations and all law. Almost the whole procedure of human life implies, or, rather is, the continual fulfill- ment of contracts. " Even those duties, or those acts of kindness and affec- tion, which may seem most remote from contract or com- pulsion of any kind, are, nevertheless, within the scope of the obligation of contracts. The parental love which pro- vides for the infant when, in the beginning of its life, it can do nothing for itself, nor care for itself, would seem to be so pure an offering of affection, that the 'idea of a con- tract could in no way belong to it. But even here, al- though these duties are generally discharged from a feeling which borrows no strength from a sense of obligation, there is still such an obligation. It is implied by the cares of the past, which have perpetuated society from generation to generation ; by that absolute necessity which makes the performance of those duties the condition of the preserva- tion of human life; and by the implied obligation on the CONTRACTS. 27 part of the unconscious objects of this care, that when, by- its means,they shall have grown into strength, and age has brought weakness upon those to whom they are thus indebted, they will acknowledge and repay the debt." It is apparent then that one should fully understand the essential elements of so important a subject, and, to do so, it will become necessary to carefully analyze the definition of contract. The word has been variously defined. Thus: "An agree- ment between two or more parties to do or not to do a par- ticular thing." Taney, C. J. U. S. "An agreement in which a party undertakes to do or not to do a particular thing." Marshall, C. J. U. S. Blackstone and Kent define it to be " An agreement upon sufficient consideration to do or not to do a particular thing." Of the last definition Mr. Parsons says: "Consideration is not properly included in the definition of contract, because it does not seem to be essential to a contract, although it may be necessary to its enforcement." And Mr. Stephens while commenting on the same defi- nition adds the following objection : "First, that the word agreement itself requires definition as much as contract. Second, that the existence of a con- sideration forms no part of the idea. Third, that the defi- nition takes no sufficient notice of the mutuality which properly distinguishes contract from a promise." In sup- port of the use of the word consideration we have Mr. West adding "lawful consideration," and Mr. Story, "legal consideration." These are short and very terse definitions. Perhaps the fullest and most complete defini- tion of " contract " is that given by Mr. Bishop in his work on contracts. Says Mr. Bishop: "A contract is a promise from one to another, either made in fact or created by law, to do or refrain from doing some lawful thing ; being also under the seal of the promissor, or being reduced to a judi- 28 ELEMENTS OF LAW. cial record, or being accompanied by valid consideration ; and not being from want of writing, or other lack of form, violative of the special rule of law governing the particular transaction. In actual affairs the promise is often more complex ; being made by two or more persons than one, or being mutual between two or more. But still, in essence and general idea, the contract rertiains the same." Analysis of the terms Agreement and Obli- gations. Two ideas are found to exist in every defini- tion of contract. Agreement and Obligation. And, to get a full conception of these distinct ideas, we shall follow Sir Wm. Anson in his review of Savigny's analysis of these two conceptions. Agreement is the union of two or more minds in a thing done or to be done. This definition includes the following points: 1. No agreement can be created without at least two parties. There may be more, but can not be less. There can be no union without parts, and parts are contrary to the idea of one. 2. The parties must have a distinct intention and that intention must be common to both. Distinct intention alone is not enough. A may have a distinct intention to do a certain thing, and B just as dis- tinct an intention to do another act, but there is not in the least any agreement in intention between them. Wherever doubt exists as to the intentions of A and B, or where they differ, there cannot be said to be any agreement between them. For example: A meets B and says, "Sup- pose I desired to sell my farm, would you give me my price for it?" B replies, "It is possible I might." Here is no certainty, but all doubt. It is doubtful if A will sell or even wants to sell, and equally doubtful, if he did, whether B desired to buy or whether or not he would give the price. Again— "A says, I desire to sell my house and lot, will you give me one thousand dollars for it?" B replies "Very CONTRACTS. 29 possibly. " Here we have, on the part of A, a distinct in- tention but doubt on the part of B, and hence no agree- ment. Now take the case of difference. — A says to B, "I will sell my horse for ^150, will you buy him?" B replies, "I'll give you ^145 for him." Here there is no union but a difference. Both have a distinct intention, but the sarne in- tention is not common to both. 3. Not only must there be a distinct intention and that intention common to both, but it must be communicated to each other. A secret acceptance of a proposal can not constitute an agreement. The justice of this rule needs no comment. To permit B secretly to accept a proposal and then compel A to abide by that secret acceptance would make A forever un- certain whether he owned the property in question or whether B had accepted his offer and claimed it as his by virtue of the contract. For example: A writes to B offer- ing to sell him a horse for $200. B accepts the offer but does not notify A of his doing so. A receiving no reply in a few days sells the horse to C. B can not sue A onthe contract on the ground that he had bought the horse, for, riot having communicated to A his intention to accept within a reasonable time, A was justified in considering the offer as not being accepted and in selling to C. 4. The law can not and does not deal with abstractions. There must be something of value at stake. Not only must there be a distinct intention, common to both and the same convened from the one to the other, but that inten- tion must be intended to affect and capable of affecting legal relations. But whose legal relations must be so af- fected? Most evidently those of the parties so agreeing. If we were to permit it to affect the legal relations of others than the one so agreeing great harm would follow. From the foregoing statements we can readily see that not all unions of two or more minds upon a thing done or 30 ELEMENTS OF LAW. to be done, and this union of mind so declared, constitute an agreement in the sense in which we are now considering it. For example, Twelve men are called as jurors. They hear the testimony, retire to the jury room, and each gives his verdict. Now suppose the verdict of each juror to be the same. Here we have a distinct intention, common to each, communicated to each, and intended to affect and capable of affecting legal relations, but lacking one of the elements required to make it an agreement in the sense used in defining a contract, and that element is the fact that the legal relations to be affected were not the relations of those agreeing. So it must be remembered when we use the word agree- ment in contracts it includes each and every one of the above numerated ideas or elements. Obligation means duty. It is a power of control, exercised by one person over another, with reference to future and specific acts or forbearances. Obligations are divided into moral and civil. Of the first the law can not and does not take notice so as to en- force it by action. It is only binding on the party's con- science and depends on his sense of natural justice to right the wrong. It is a civil obligation that is noticed by the law. A civil obligation is one that has a binding operation in law, and which gives the obligee a right to enforce it in a court of justice ; in other words it is an agreement bind- ing on the obligor. The chief classes of civil obligations are: (a) Express. — This is where the obligor binds him- self in express terms to perform his obligation. (b) Implied.— This is where the obligor does not bind himself expressly to perform the obligation, but does some act from which the law implies a promise to perform the obligation. For example, A sends ice CONTRACTS. 31 daily to B without any express authority, and B makes use of the ice in his family, the law raises an obligation on B's part to pay A the value of the ice. (c) Conditional. — This is where the obligor binds him- self, but the execution of the obligation is not immedi- ate, but is suspended by a condition which, if fulfilled, then the obligor must perform, but if not fulfilled, the obligation ceases to bind the obligor. For example, A agrees to pay B a sum of money if B will by a cer- tain day do a certain act. Now if B does not do the act by the day specified, A is no longer bound to pay; if he does the act before the day, then A must pay the sum specified. (d) Alternative. — This is where the obligor under- takes to do several things, but in such a manner that if he does one or more, then the others cease to be bind- ing; as for example, A promises to pay B ^loo, or give him a horse. Here if he pays the money he does not have to give the horse, and if he gives the horse he is no longer bound to pay the money. (e) Absolute. — This is one that gives no alternative to the obligor, but requires him to act according to the engagement. (/) Accessory. — This is one that depends on anoth- er obligation which is principal ; for example, A sells his house and lot to B. The principal obligation resting on A is to make B a title for it; the accessory obligation is to deliver to B all the title papers which he has re- lating to it, to take care of the estate till it is delivered to B, and the like. {g) Joint. — This is where two or more undertake to do an act jointly. They do not agree to do the act separately. If one dies the survivor must perform the act. It will readily be seen that the same obligation may fall in two or more of these various classes. 32 ELEMENTS OF LAW. From the nature of the definition of obligation it will be observed. 1. There must be at least two persons, or groups of persons, one or both of whom is invested with a controlling power which he is capable of exercising over the acts of the other, who for the specified act supposes a diminution of his ordinary freedom of action. 2. The act or acts must be certain and definite. If uncertain and indefinite, it would be a species of slavery. If it included all acts and all time, it would certainly be complete slavery. 3. The thing to be done must be such as pos- sesses, or is reducible to, some pecuniary value. If A were to promise B to go walking and refuse to do so, he would violate a social obligation, but not a legal one, as it possesses no pecuniary value. If you were to save me from some great danger, I may be under a moral but not a legal obligation to repay you for your act, because it is impossible to reduce your act to a pecuniary value. It is the value that distinguishes a legal from a social or moral obligation. So much for the analysis of the words agreement and obligation. Object and Classification of Contracts. Every contract must have one of the following objects, namely: To pay a sum of money, to do a certain act, or, to omit doing a certain act. It is possible to include all in the same agreement, but it would then seem more like the union of several distinct contracts. The most important classes of contracts are the fol- lowing, viz: («) Expressed, which are those in which the terms of a contract or agreement are openly and fully uttered and avowed at the time of making it, as, to pay so much for a certain horse. CONTRACTS. 33 (B) Implied, which may be implied in law or in fact. A contract implied in law arises where some pe- cuniary inequality exists in one party relating to the other which justice requires should be compensated, and upon which the law operates by creating a debt to the amount of the required compensation, for example, A gets the goods of B by fraud, the law raises an implied prom- ise to pay the value of the goods. A contract imphed in deed arises where there was not an express contract, but there is circumstantial evidence showing that the parties did intend to make a contract, for example, A orders goods of B, a merchant, nothing is said of the price; the law raises an implied contract (in fact) to pay the real value of the goods. The differ- ence between a contract in law and one implied, in fact is this: in the former idea of a contract is a mere fic- tion, having no real existence ; in the latter, it is inferred as an actual fact. (c) Specialties, which includes all contracts under seal, as, deeds and bonds. Mr. Parsons also includes contracts of record under this class. Contracts of record are judgments, recognizances, and the like. {d') Simple. This class includes all contracts in writing not under seal as well as oral or verbal con- tracts which are not written. The only difference be- tween an oral and written contract is in the mode of proof (e) Executed. Here the transaction has been com- pleted, nothing remains to be done by either party, as, A buys B's horse. B delivers the horse and A pays the price. (y) Executory. Here some act remains to be done, as, A agrees to build B a house in six months and at the end of the time B is to pay A for his work. Elements of a Contract. The fundamental ele- 34 ELEMENTS OF LA W. ments of every good and valid contract may be classi- fied under the following heads, viz: 1. Proposal and Acceptance. 2. Form and Consideration. 3. Capacity of Parties to Make a Contract. 4. Genuineness of consent expressed in Proposal and Acceptance. 5. Legality of the object of the Contract. We shall now proceed to consider each in its order, and first of Proposal and Acceptance. Every agree- ment must originate in a proposal and acceptance. It should be borne in mind that either the proposal or acceptance, or both, may be expressed or impHed. If two philosophers were discussing some topic, and desired to agree upon some point, one would say to the other: "Do you think so and so?" The other would reply: "I do." They are then at one, and we say there is an agreement of mind. But in business life the questions take a form somewhat like this : A says to B, " Will you do so and so?" or "Will you pay so much?" or "Will you abstain from doing such an act? " and B replies: " I will." Here, also, we see that they are at one, and we call that an agreement in a legal sense, for there exists a distinct intention common to both, communicated to each other, capable of affecting, and intended to affect, their own legal relations and which has something of value in it. It will be observed that all contracts can be reduced to this form of question and answer as well in the case of im- plied contracts as expressed. If A were to go into B's store and take from the shelf certain goods, the law im- plies as follows, viz : B, by having the goods on the shelf, says: "I will sell these goods for so much " — their value — and A, taking the goods, by that act says: "I will take the goods and pay that price." From the above statement we see that all contracts spring from the offer of a promise or act and its accept- CONTRACTS. 35 ance. The offer may be by words or signs, in writing or orally, personally or by a messenger. The contract may arise then in the offer of an act for a promise, as, a hackman offers to carry you to State street, you will pay him one dollar when you land at State street. Here he offers an act for a promise ; you accept, and it is a con- tract. Again, there may be an offer of a promise for an act. A says to B: "I will give you a dollar for a day's work," and B accepts. B does the act, relying on A's promise, which the law will compel him to make good. There is a third form of proposal, which is the offer of a promise for a promise. A offers to pay B so much by a certain day if B will do certain work for him, and B prom- ises so to do. The writers on contracts lay down certain rules that govern the law of proposal and acceptance, and which ought to be strictly followed by all desiring to make a valid contract. We shall now proceed to state the rules : Rule First — The proposal must be intended to affect, and capable of affecting, the legal relations of the parties. Rule illustrated — («) A offers to sell his house to B for a certain price. Here A intended the proposal to affect the legal relations of B and himself, and the proposal is capable.of so doing. This, then, is a good proposal. (V) Suppose the case of a father saying, in the presence of and to a young man, that "he would give to him who married his daughter with his consent the sum of ^500." The young man to whom the above language was spoken, afterwards, with the father's consent, married the daugh- ter, and then claimed the fulfillment of the father's prom- ise for the payment of the ;?500. It will be seen that he can not hold the father for the payment, for "it is not reasonable that a man should be bound by general words spoken to excite suitors." Here there was lack of intent on the part of the father when he made the statement that 36 ELEMENTS OF LA W. it was to be taken as a proposal to the young man. " Had the father said "I will give you ;^500 if you marry my daughter," the case would have been different, for then the intent would have been manifest. (c) The following case is given as an example where the proposal is not capable of affecting legal relations: A is desirous of purchasing B's horse. B is not anxious to sell. A, to excite B to sell, says: " I will give you $\2^ for the horse, and, if he is lucky to me, will give you $2i) more or the buying of another horse." B sells. A after- wards sells the horse for a large price, and B sues A for the $2i). He can not recover, as there were no words used by A capable of affecting legal relations. Who knows what is meant by "lucky" or "the buying of another horse?" Rule Second — TJie acceptance must be absolute and identical with the terms of the proposal. Rule illustrated — («) A offers to sell his horse for $\QO to B. B replies: " I will take him if you leave the bridle on him." Here 'there is a condition in the acceptance. It is not identical with the proposal. There was no bridle mentioned in the proposal, and the condition containing it in the acceptance vitiates the contract. There can be no conditional acceptance, for a conditional acceptance is, in fact, a proposal, as the following example will shoyv : A offers to sell B a span of horses for ;^5oo. B replies : "I'll give you. ^475 for them, or $500 and you give me the harness." This language in effect says. " I'll not give you ^500 — I reject your proposal, but will make one to you," which he does as above. A, of course, can accept B's proposal, and there will be a contract ; but, if he re- fuses to accept it, B can not, after using the above lan- guage, say: "I'll take you at your offer," and thereby hold A to his proposal. The reason is, his reply was in effect a rejection of A's offer and a counter proposal, and he will not be permitted, after having once rejected a pro- CONTRACTS. 37 posal, to consider it as still pending, and, by accepting, bind the proposer. A must make a new offer before B can accept. (]}) Suppose the Governor of Ohio were to offer a "re- ward of ;$5oo to anyone giving information that will lead to the apprehension and conviction of the murderer of A B. " One C D, before hearing of the offer of the reward, arrested the murderer. He afterwards furnished the necessary information that led to the conviction of the murderer. Has he secured the reward? It is clear from the wording of the offer that the information must lead to both apprehension and conviction — that is, both must happen. If the information led to "apprehension" only, no one will claim that C D has earned the reward ; neither can it be claimed if his information simply leads to con- viction. It must be such information as leads to the ful- fillment of both the conditions of the offer, viz, apprehen- sion and conviction. As this is a most imf)ortant rule, we will give another case : A writes to B, living at Ada, say- ing he will sell a certain house in Pittsburgh for ^10,000, and adds, "If you accept, address me at No. 48 street." B is willing to accept, and, hearing that A was at Toledo, addressed his, acceptance to Toledo. A re- ceives the acceptance, but there is no contract. Why? B should have followed the directions as to place where the acceptance must be sent. For aught B knew A may have had an agent at Pittsburgh waiting the r-eply, and who could have acted at once in the case, and thereby have secured some important gain to A. From these examples it will be seen how important it is for a party to be careful to make the acceptance absolute and identical with the proposal, and, if any condition be annexed to the pro- posal, follow it strictly to the letter. Rule Tliird — A proposal that has not been accepted does not affect the rights of the parties ; or, a man can not by 38 ELEMENTS OF LA W. any form of offer bind the person to whom it is made be- fore he has expressed his assent. Rule illustrated— («) We have seen that neither a conditional nor qualified acceptance is binding. It would seem to follow naturally that a proposal not accepted at all will not bind either the proposer or the one to whom it is proffered, and such is the law. Yet, nevertheless, some attempts have been made to so frame the proposal that if the person to whom it is made does not expressly reject it he will be considered as accepting it. This is wrong. No person has a right to say to me you must do an act or be liable on a contract. That would be destroying my free will. But to illustrate. A writes to B saying, ' ' I have a horse which I desire to sell. I will take ^125 for him. I am informed you want a horse, if I do not hear from you I will consider him sold to you." . Now, it is manifest, that to say B must reply an(i reject the offer or else be held as having bought the horse, would deprive him of all independence and free will to act. What right has A to command B to do an act unless B is his servant? None. B can remain silent, and not be held as having accepted the offer. Or, suppose the wording runs, " I will give you $125 for your horse, and if I hear no more about him, I consider the horse is mine," this, too, is not binding. There is no contract unless the party to whom the offer is made freely accepts. Rule Fourth.. A proposal may be revoked before ac- ceptance but not after; an acceptance is irrevocable. This is a very important rule. It follows from what has gone before. We have seen that a proposal, alone, creates no rights; also, that neither a conditional nor qualified acceptance will be binding on the party pro- posing ; hence it ought to be that an absolute and identical acceptance should be binding as a contract, and irre- vocable, and such is the law. We see that our rule CONTRACTS. 39 divides itself into two parts, ist, when the proposal may be revoked, 2nd, when it may not be. Of the first: It is a most evident case of justice, to say to the proposer, so long as the person to whom the proposal is made has not accepted, you may withdraw your offer, since no rights can be injured thereby. And of the second it is just as reasonable to say, after acceptance you can not revoke the offer. This all seems very simple, and so it is, so long as there are no confusing circumstances attending the proposal and acceptance. But it is often the most difficult question to tell when the acceptance has been made and the right to revoke ceases. We will now proceed to discuss the various cases that may arise in the transaction of the most ordinary classes of business. It is certain that the proposal may be revoked before acceptance, but must the communication of the withdrawal be communicated to the party to whom the proposal has been made before it will be effectual? Two classes of cases exist, viz: ist. Where the parties are in immediate communication with each other the proposal may be revoked without notice to the person to whom it has been made. To illustrate. A and B are in conversation. A makes a proposal to B, but B does not accept it. They separate, and B, the next day, meeting A can not signify his acceptance and bind A, unless A is willing to allow his proposal to remain open; for the proposal would otherwise fall at the time of separation. This is a simple case. Take another that is more complex but which will be more readily understood by the student when he comes to the section on consideration. Suppose the previous case; but A, in making the proposal, uses these words, "I will let this offer remain for two days." The next day C meeting A, asked him concerning the subject matter of the proposal to B, A tells him of his offer to B. C says,, ' ' I will give you that amount for the 40 ELEMENTS OF LA W. article." A accepts. Shortly afterwards, the same day, B comes back and says he will accept. A informs him that C has purchased the article. B is out. He can not complain. A had a perfect right to revoke his offer to B and need not communicate the fact of the revocation to B. The reason is, A had not received any consideration for the promise and so it was not binding on him. Again, no rights are affected simply by proposal. A could not compel B to accept, and B can not make A liable while he remains free, unless he gives A something for his promise. 2nd Class. Where the parties communicate by cor- respondence, notice of revocation, in order to be valid, must reach the person to whom the proposal was made before he has accepted. Here are presented the most difficult questions to be answered. In the following examples we will for convenience locate A in New York City and B in Chicago. Then the following cases present themselves for solution: (a) On April 15 th A writes to B making a pro- posal. B receives the letter on the 17th and on the i8th mails his acceptance. On the 19th A changes his mind and writes to B revoking the offer which letter B receives on the 21st, A receiving B's acceptance on the 20th. Is there, or is there not a contract? It is certain that on the i8th both A and B were of the same mind. But A had changed his mind before he had received B's reply. Will he then be bound? It has been claimed by some that A ought to have the right to retract until notified of the acceptance by B. But the law is otherwise. It is stated thus : "If that were so," namely, A's right to retract till he had received B's acceptance, "no contract could ever be completed by post. For if A was not bound by his offer, when accepted by B, till the answer was received, then B CONTRACTS, 41 ought not to be bound till after he had received noti- fication that his answer had been received by A and that he had assented to it; and so it might go on ad infinitum. A must be considered in law as making, during every instant his letter is traveling, the same identical offer to B, and then the contract is completed by the acceptance of it by B. Common sense tells us that transactions can not go on without such a rule" {b) In the first case proposed it was observed that at the moment of B's acceptance A was of the same mind also, but changed his mind between the moment of acceptance by B and the time of receiving notice of the acceptance. Now let us suppose another case. A writes on the ijth of April and B receives the proposal on the 17th. On the i6th A mails his revocation which B receives on the i8th, but he had accepted and mailed his acceptance on the 17th. Here is a case where, at the acceptance by B, A was not of the same mind as B, still the same rule applies. For we saw that in law A is making the same offer every moment of time the letter of proposal is on its way to B, and hence, in law, he was still in the same mind as B when B accepted, although in fact he was of a contrary mind. This, then, is an arbitrary rule of law adopted from necessity. It is admitted that it does work injustice in some cases, but greater injustice would follow the contrary rule. A knows his offer is out to B; he can very easily inform himself as to B's acceptance before he sells to another; but B, after accepting, by our present rule, can resell and thereby make a profit, but, if he must be subject to the possibility of A's revocation, he could not act with safety till he had heard from A of the arrival of his acceptance. This would be a clog and weight on business which the good of commerce can not permit. So the rule is now established, that the acceptance is complete and the contract valid upon the due posting of 42 ELEMENTS OF LA W. the letter of acceptance, notwithstanding the delay, or even entire failure in arriving at its destination, provided such delay or. failure has not been occasioned by a wrong address of the letter of acceptance, or other fault in the party sending it. Of course the letter of acceptance must be placed in the post office before any intimation is received that the offer is withdrawn. As the contract is complete at the time of mailing the letter of acceptance, it fojlows of course that the party accepting can not, after mailing the acceptance, overtake and countermand his acceptance by telegram, any more than he could countermand his acceptance the instant he had spoken it, if he were in the presence of the proposer. To permit the acceptor to countermand by telegram would be a violation of the last clause of our present rule which is, "and acceptance is irrevocable." But how does the law stand in regard to contracts made by telegraph ? Is the contract complete when the acceptance is deposited in the telegraph office? The law on this point is not settled. Some cases say "Yes" and some "No," that the acceptance must be received by the proposer before the contract is complete. The last is the opinion of Prof Parsons, and he states the law for and against it as follows: The reasons for not holding it (i. e. the contract) complete on placing the accept- ance in the telegraph office, may easily be stated. They in fact resolve themselves into two. One is, that the mail is a governmental institution. It is the agent of all the people and each and every one of them, and may be considered as, if not guaranteed to a certain extent by the government, still guarded as well as regulated by the power of the government. It is not so with the telegraph. Efforts are now being made to place telegraphing in the hands of the government and put CONTRACTS. 43 it on the same footing as post offices. It may become so, but is not so yet. Another reason is, that when a letter is deHvered, it is perfectly certain that the assent of the accepting party, in precisely his own words is, so far as the writer can do it, made known to the offerer. This can never be certain where the message is sent by telegraph. The operator or copyist at either end may make a mistake. And so he adds: " We are of opinion, therefore, that, at present, the contract is not complete until the message of acceptance is received, or, at least, that the law is not settled otherwise." Rule Fifth — The proposal may become null otherwise than by revocation, as follows : First. — By the expiration of a prescribed time for the acceptance. If A should see fit to set a time within which B must accept, if he accept at all, he has a perfect right to do so. If h^ sets such a time the only question that arises is, does he intend the time fixed to be the limit within which B may accept and place the letter in the office, or the time before the expiration of which A must receive the letter of acceptance? The first will be pre- sumed unless it be distinctly stated to be the last condition. Second. — If no time is set within which to accept, the acceptance must be made within a reasonable time. What is a reasonable time must depend upon the circumstances of each particular case; due consideration being given to the subject matter and the situation of the parties. Third. — By the death of the proposer before acceptance. There can be no union of mind if one party be dead. The same is likewise true if the proposer becomes insane before acceptance. Fourth. — By death of the person to whom the proposal ■was made before he has accepted ; likewise if he becomes insane. 44 ELEMENTS OF LA W. Rule Sixtll — Proposal and acceptance need not neces- sarily be written or spoken, but may be acted, wholly or in part. Rule illustrated : («) A sends goods to B. B accepts and uses them. By so doing B becomes liable to A on an implied contract, and must pay for the goods. Here both proposal and acceptance were acted. {b) A asks B to work for him. B makes no reply, but goes to work. This is an acceptance by act. {c) A goes to B and begins to do work for him. Any reasonable man would know under the circumstances that he was not intending to work for nothing. B lets him work on. A completes the work. The work is the pro- posal by act, and the silence of B is the acceptance. The case would be different if B does not know of A's working and has no opportunity to disaffirm the work or proposal. Rule Seventh. — A proposal need not be made to any ascertained person ; but no contract can arise until it has been accepted by an ascertained person. Rewards are familiar examples of this rule. They are made to the public at large, but, when a particular per- son acts under the offer, then, and not till then, does a contract spring up. The same is true of the offer to sell by an auctioneer, and the highest bidder is the " particu- lar person." Form. In the early history of the law, form was of more importance than now. The truly formal contracts are so few that we shall have nothing to say of form. The Statute of Frauds, as it is termed, does not make the form of the contract an element of its validity, except those contracts which came under section seven- teen of that statute, but is simply remedial in its nature. The contracts that come under "section four" of the statute are valid even if they do not conform to the requirement of the statute, but the law simply provides that the courts will not lend their aid to help enforce the CONTRACTS. 45 fulfillment of them unless the contracts are found to con- form to the requirements of the statute. Contracts under seal are not included under the Statute of Frauds. It requires a certain class of contracts to be in some form of writing other than under seal. This is the most important class, and the student is asked at the outset to give close and diligent attention to all its parts, and especially to those contracts that fall under this classification. It was early observed that great frauds were practiced, and liable to be so practiced, so long as it was permitted to parties to make all kinds of contracts orally — that is, not to have the evidence of the contract in some permanent and lasting form, but trusting wholly to the memory of the parties. It was observed, that equally honest and truthful men differed widely as to the contract, and this, of course, led to great abuse of character, injustice and perjury. To avoid this, the English Parliament, in the twenty-ninth year of King Charles II's reign, passed what is known as the Statute of Frauds. This famous statute has been unduly praised by some judges and denounced by others. How- ever, let its merits or demerits be as they may, it has been permitted to stand as law of England till the present, and, substantially, sections fourth and seventeenth of it have been re-enacted in the several States of our Union. A few of the States have not re-enacted the seventeenth sec- tion. It is not in Ohio. Section four is in these words : ' ' No action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement made in consid- eration of marriage, or upon any contract or sale of lands, tenements or hereditaments, or any interest in or concern- ing them, or upon any agreement that is not to be per- 46 ELEMENTS OF LAW. formed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." Section seventeen reads as follows: "No contract for the sale of any goods, wares and merchandise for the price of .£^10 sterling or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contracts, or their agents thereunto lawfully authorized." We shall have nothing to say of section seventeen except by way of contrast with section four. It will be observed that the agreement under section four will be good even if not in the form required by the statute, but that if it lacks that form the courts will not help to enforce it. But if it lacks the form required by section seventeen, the agreement or contract is not allowed by law to be good. It is as though no contract ever had been made. As to section four, attention is called to the following important points: The section requiring the writing in order to bring the action is only evidentiary. It does not go to the essence of the contract. The law does not require the contract to be reduced to writing at the time the contract is made, but it may be reduced to writing at any time between the making and the commencement of the suit. If the whole contract is reduced to writing, that is, of course, a perfect exposition of the terms of the con- tract and the parties to the same. But suppose only a note or memorandum is made ; what must such note or memorandum contain? It will be necessary for the note or memorandum to contain the names of all the parties, but if the name of a party does not appear, and there is a CONTRACTS. 47 description of the contracting party, it will suffice ; for it is settled that a description of one of the contracting par- ties, though he be not named, will let in parol evidence, otherwise inadmissible, to show his identity. If the mem- orandum consists, as it may, of various letters or papers, they must be connected, consistent and complete. If they did not refer to each other, the signing of one could not be said to be the signing of all. Another important point to be noticed is, that the statute does not require that all the contracting parties must sign the writing, memorandum or note but only the one sought to be charged. For example: A and B enter into a contract. A wishes to sue B — the con- tract is in writing — it must be signed by B, or A can not sue on it, for B is the one sought to be charged, and, if his name appears, that is all that the law requires. A's name may not be signed at all, but, if it is not, B can not sue' A. So it will be seen that, under the operation of this statute, it may be one of the contracting parties can sue the other, but is not liable himself to be sued. By whom must the signing be? By the party sought to be charged, or his agent duly authorized. ' ' The signa- ture need not be an actual subscription of the party's name, it may be a mark ; nor need it be in writing, it may be printed or stamped ; nor need it be placed at the end of the document, it may be at the beginning or in the middle." But, if the word "subscribed" be used in place of " signed," then the name must be at the end of the writing. Having prefaced so much concerning the form of the writing required by this Statute of Frauds, we will now proceed to notice the various classes of contracts affected by it, so that the student may be sure to what contracts it does or does not apply. The statute itself gives the classes which are affected by it, viz: 48 ELEMENTS OF LA W. 1. Special promises by an executor or administrator to answer damages out of his own estate. 2. Any promise to answer for the debts, default or mis- carriage of another person. 3. Agreement made in consideration of marriage. 4. Contracts for the sale of lands, tenements or heredita- ments, or any interest in or concerning them ; and 5. Agreements or contracts, not to be performed within the space of one year from the making thereof. Class First. Special promise of an executor or ad- ministrator to answer damages out of his own estate. By law the executor or administrator of an estate is only held liable to pay the debts of the deceased person to the amount of assets or money of the deceased ; that is, A is executor of the estate of B. B's estate, or assets, amounts to ^5,000. He is in debt to the amount of $6,- 000. A is only liable to pay the creditors of B ^5,000, and they must lose the ^1,000. Now suppose A; for the honor of the name and memory of his deceased friend B, promises the creditors of B, or any one of them, to pay the other ;^ 1,000 over and above the assets — the creditors can not enforce this promise against A, unless it is put in writing and signed by A. Why? Because it is a ' special promise to answer damages out of his own estate. The student must bear in mind that the reducing it 4o writing and signing it will not be enough to bind A unless he is given a consideration for his promise. What is meant by consideration will appear when we come to con- sider that topic. Class Second. Any promise to answer for the debts, default ot miscarriage of another person must be in writing. It will be necessary to explain the sense in which each of the words "debts," "default "and "miscarriage" i§ used. By debt is meant that which is due from one per- CONTRACTS. 49 son to another, either in goods, money or services — that which one person is bound to pay or perform to another. By default is meant the neglect to perform a legal duty or obligation. By miscarriage is meant all those wrongful acts for the consequences of which the law will make the party committing them civilly responsible. The student will more fully understand this class of cases when we speak of "torts." It will be seen from the scope which these words include that we are now considering a very important topic, and, since we are, let the student give close attention. When one promises to answer the debt, default or mis- carriage of another, it follows that there must be at least three parties — a debtor, for whom the party promising undertakes to pay ; a creditor, to whom the party prom- ises to pay, and the person making the promise. In its simplest form it may be represented thus : A owes B a sum of money. C promises B that he will pay the debt for A. From this example it is clear that there are two prom"ises — one the principal or direct promise, which exists between A and B ; another, or collateral, which exists between B and C. A has nothing to do with the collateral, and C nothing with the principal promise. But the principal liability existing between A and B is the foundation of the collateral one between B and C; otherwise the liability of C to B would be a principal one itself. The first question to be determined in all cases that are supposed to fall under this rule is. Does there exist a prin- cipal liability? and then, Is there a collateral one founded upon it? The following rules have been laid down as guides to be followed in determining the above question: I . The party for whom the promise is made must be liable to the party to whom it is made. To illustrate : A makes a 50 ELEMENTS OF LA W. promise for B to C. For this rule to apply, B must be under liability to C. 2. The principal debtor must not be relieved from his lia- bility by the new promise. If he was completely discharged, then there could not exist any promise on the part of the surety to pay the debt of another, but he would be pay- ing his own debt, which he had assumed. To illustrate : A owes B. C says to B, " If you will discharge A I will pay the debt." B discharges A. C will be liable on his promise, although not in writing. , Why? Because the debt of A by such an agreement is extinguished, and B's pre-existing remedy is abandoned, and C pays his own debt, the consideration for his promise being the discharge of A. But if C had said, "If you defer sueing A for two months I will pay the debt," this will not be good unless in writing, for A is still bound by his liability. Great care must be exercised in applying this rule. The language of the parties and their intentions at the time are to be carefully considered. In respect to the sale of goods this rule takes this form : If the person for whose use the goods are furnished is at all liable for the debt, any other promise by a third person to pay that debt must be in writing, or it will be void. But if the credit is given and the debt for the goods is contracted by one person, and the goods are, at his request, delivered to another, to whom no credit is given and who incurs no debt, the per- son to whom the credit is given being alone liable, his promise need not be in writing. Thus, A says to B, a bookseller, ' ' Let C have the book and I will pay you for it," and B lets C have the book. This is the debt of A alone, and need not be in writing. In this case no credit was given to C. Had A said, "Let C have the book, and if he does not pay you I will," the credit is primarily given to C, and A is not liable unless his promise is in writing. The question to be determined in these cases is, To whom was the credit given? Who contracted the CONTRACTS. 51 debti" It must not be forgotten that the habihty may arise out of a wrong as well as out of contract. The examples are cases arising out of contract. We shall give one instance of a case where it arises out of a wrong and to which the word "miscarriage" applies, leaving it to the student to further illustrate when we come to study " torts, " to which subject it belongs. Example: A took the horse of B, and rode it without B's permission, and killed it. C promised B that, if he would forbear to sue A, he would pay him for the horse. This is the promise to answer for tke miscarriage of another. Class Third. Agreements made in consideration of marriage. This clause is not generally adopted in the different States. It is found in the Ohio statute. The mere engagement or promise to marry is not affected by this statute. If A asks B to marry him and she consents, this promise need not be in writing. The clause had great use and application when the law was. that at marriage the property of the wife became the property of the husband. It was then the custom to per- mit the intended husband to make an engagement that, in consideration of the woman marrying him, he would, after marriage, settle upon her a certain yearly income or amount of property that was to be called and looked upon as her separate property, and over which the husband was to have no control. Since the law permits the wife to keep her property after marriage, the need of the clause has passed away. Class Fourth. Contracts on sale of lands, tenements or hereditaments, or any interest in or concerning them. The student can not intelligently consider this clause until he has studied the chapter on Real Property, and then he can easily apply the rule himself to all the easier and simpler forms in which it will present itself. The great difficulty arises in knowing what are and what 52 ELEMENTS OF LA W. are not interests in or concerning lands, tenements or hereditaments, and upon this point there is no harmony among the different State courts. More of this later. Class Fifth. Agreements or contracts that are not to be performed within the space of one year from the making thereof must be in writing. The student is asked to observe the words used in this class as found in section four. It does not refer to a contract that may be performed within one year, nor that can not be performed, but to one that "is not to be performed within the space of one year from the making thereof." The cases that have arisen upon this clause of the statute are divided into three classes. 1. Where, by the express agreement of the parties, the contract is not to be performed within the space of one year from the making thereof; 2. Where it is evident, from the subject matter of the con- tract, that the parties had in contemplation a longer period than one year as the time for its completion ; 3. Where the time for the performance of the contract is made to depend upon some contingency, which may or may not happen within one year. Of the First Class: It is clear that all contracts falling within this class come within the statute, and must be in writing. Illustrations. A on April fifteenth contracts with B to work for him for one year, commencing from the first of May following. Here it is clear from the express agree- ment of the parties that the contract was not to be com- pleted -within one year from the making thereof The time is counted from the date of making the contract. It was said that class third did not refer to the mere promise to marry, but such promises to marry, if the day set for the performance of the marriage is more than a year from the date of the engagement, fall under this class. CONTRACTS. 53 Of the Second Class : If A agrees witlj B to publish a series of books, One of which is to be produced after the delivery of the first which is to be delivered in six months ; here from the subject matter of the contract, it appears that the parties did not contemplate that it should be done within a year and it comes within the statute. 0/ the Third Class: Where the time for the perform- ance of the contract is made to depend upon some contin- gency, which may or may not happen within a year, it is settled that they^do not come within the statute. Hence it need not be in writing. For example: A promises B to pay him a certain sum of money upon (B's) wedding day. Here nothing appears which will render it impossible for B to marry within a year. If he does, A's promise falls due and B can sue on it within a year from the mak- ing thereof. Suppose, again, A promises to pay B a cer- tain sum upon the return of a certain ship to New York. The ship did not return for two years. B can still hold A to his promise, although not in writing, for, by possibility the ship might have returned within one year from the time of the promise. Hence, if no time be stipulated for the performance of the agreement, and it is capable of being performed within one year from the making thereof, it is not within the statute ; though it be not performed till after that period. If, by the contract, one of the parties is to do all that he has to do within a year, but not by the other, it will be valid without writing, if an action upon it were brought against him who should execute the contract within the year, but would require a writing if brought against the other. It remains to be added that if a contract which, by its terms originally, came within the statute, and should have been in writing, has been entirely executed on one side, and nothing remains but the payment of the consideration, the other party can not resist the payment because the contract was not in writing, because the exec- 54 ELEMENTS OF LA W. utory contract which is the object of the contract has ceased, and has become executed, and it would be mani- fest injustice to permit the party to have the benefit of the contract, and not compel him to pay the considera- tion. So much for section four of the Statute of Frauds, and with it we close our remarks on the topic of Form, and now pass to that of Consideration. Consideration. When one person signifies to another his willingness to do or abstain from doing any- thing with a view to obtaining the assent of the other to the act or abstinence, he is said to make a proposal. When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise. The one making the proposal is called the promisor; the one to whom it is made is called the promisee. When, at the desire of the promisor, the promisee, or any other person, does or abstains from doing, or prom- ises to do or abstain from doing something, such act, or abstinence, or promise, is called the consideration for the promise. Other definitions of consideration are: The natural cause which moves the contracting party to enter into a contract; the price, motive or inducement to a contract; anything of benefit to the promisor or detriment to the promisee. We have seen that consideration is the universal requi- site of all contracts. The most important kinds of con- siderations are: Good, by which is meant love and natural affection. Valuable, by which is meant anything that possesses a pecuniary value. Marriage is, however, classed as a valuable consideration. Executed, where the act or abstinence is performed at the time of making the contract. CONTRACTS. 55 Executory, where the act or abstinence remains to be performed. Moral, such as are based upon a moral duty to perform an act. Past, an act done before the contract is made. It is not by itself a sufificient consideration to support a con- tract. A past consideration is sometimes said to be no consideration. The same is true in general of a moral consideration. Purely moral obligations are wisely left by the law to the conscience and good faith of the individual. The qualities of consideration may be stated in a few words. It need not be adequate to the promise, but must possess some value. The courts will not usually, unless to detect fraud, inquire into the adequacy of the considera- tion. It must be real, must not be impossible, nor vague, nor what the promisee can already demand, as, if A owes B one hundred dollars, and A were to promise to pay that sum if B would do some particular act, this would be no consideration for B's act, for B can already demand A to pay the one hundred dollars. Again, the consideration must be legal — that is, must not be any act forbidden by law to be done, or which, if done, would be a detriment to society. Before leaving the subject of consideration we desire to call the attention of the student for a moment to one phase of moral consideration which seems to be an exception to the previous statement that the law did not take notice of moral consideration. It is sometimes said that a moral consideration is sufficient consideration, but, as a rule, that such moral consideration must have once been valuable and enforceable at law, but has ceased to be so by the operation of the statute of limitations, or by the intervention of bankruptcy, for instance. The claim in this case remains equally strong on the conscience of the debtor. To illustrate: The law of Ohio will not permit the holder of a note to sue on it if the note is older than fifteen years. Now, suppose A gave his note to B in 56 ELEMENTS OF LA W. April, 1870. B can not sue A on that note in 1886, for the statute of limitations has attached, and will not permit B to sue A on the note. Of course A is as much bound in conscience to pay the note after it is barred by the stat- ute as before ; and so the law is, that if he makes a new promise to C in writing to pay the note, there need be no new consideration to support the new promise, but the moral consideration is sufficient to make it good. In other words, the rule amounts only to a permission to waive cer- tain positive rules of law as to remedy. Oftentimes a promise is the only consideration for a promise, and, as such, is sufficient in law. Such is the case of the mutual promise to marry. Capacity of Parties to Make Contracts. By nature persons are divided into two classes — males and females. In the eye of the law this difference of sex is not regarded in considering the capacity of the parties to make a contract ; but the law formerly made great and rad- ical distinctions between an unmarried woman, who is in law called z.fefmne sole, and a married ■womaxi, termed a femme covert. The former had equal power with males to make contracts, but the latter, at common law, could make no contract at all. But this law has been greatly changed of late, and now, in Ohio and most of the other States, if not all, a married woman can contract the same as a. femme sole. There is an arbitrary division of all persons, as regards their capacity to make contracts, into two classes, namely — adults and minors. All males over twenty-one years of age and females over eighteen years of age are adults. All under these ages, respectively, are minors. As to adults, the presumption of law is that they are capable of making any and all kinds of contracts, but, if it is shown that they are insane or non compos mentis, this presumption is overcome, and they will be declared incapable of making a contract. Why? Because an insane CONTRACTS. 57 person can not give assent, which is one of the essentials of a valid contract, yet, if it is made to appear that the insanity is periodic and that the contract was made during one of the sane periods, the contract will be valid. If one of the parties was so drunk as not to be capable of understanding his conduct at the time of making the contract, he can not be said to possess an assenting mind, and, hence, the contract so made is void. Again, if A threatens bodily harm to B or one of B's family, and B is powerless to resist the threatened injury, or unlawfully confines B and restrains him of his liberty, and B, to secure his liberty, or to avoid the threatened danger, enters into a contract with A to pay him a sum of money, such contract is void, or rather voidable, at the election of B, because B did not possess the freedom of mind requisite to give a valid assent in law. It is said that a contract made by a lunatic, if his condi- tion was not known to the other party and no advantage was taken of him, is good if it be executed or partly exe- cuted and the parties can not be restored to their former condition. These are the chief disabilities that prevent adults from making all kinds of contracts. These same disabilities apply also to the cases of minors, and to them is added the legal disability of age. The law has set the ages of twenty-one years and eighteen years, respectively, for males and females, when they shall cease to be called infants or minors. This is an arbitrary rule. Till they reach that age the law looks upon them as not possessing a full and perfect judgment so as to enable them to do busi- ness on their own responsibility, and hence the law steps in and places certain safeguards around them, so that unscrupu- lous persons may not take advantage of their lack of judg- ment and mislead them to their injury. This rule is based upon necessity, and its wisdom and justice have been fully demonstrated by a long series of litigated cases. The law 58 ELEMENTS OF LA W. does not say that all minors lack judgment until of age, but experience shows that, considered as a whole, their judgments are generally not fully developed until that time. No doubt many infants are more capable at sixteen or eighteen of transacting all kinds of business than some adults ever are. At common law, males and females both came of age at twenty-one. In most of States now females are considered of age at eighteen. The infant becomes of full age at the beginning of the last day of his twenty-first year, or the day before his twenty-first birthday. This rule is founded upon the principle that the law does not recognize parts of days, and therefore when the last day of the last year begins, it is considered as end- ing. If the birthday be April 15th, the minor is of full age at midnight of the 13th when the 14th begins. The student must not lose sight of the fact that the rules we are now to lay down have been established for the pur- pose of protecting the infant, and, if he keeps this princi- ple distinctly in mind, it will guide him through the intri- cacies of the law in regard to this subject. An infant has the power and can make any and all kinds of contracts, but they are not binding on him — that is, at any time after the making till he is of full age, and within a reasonable time after he becomes of age, he may avoid the contract, and the other party can have no action against him for a breach of contract. To illustrate : A is a minor of the age of eighteen. He contracts with B to do certain work for him . B is relying upon A's promise to do the work, but, when the time comes to do the work, A refuses to do it. B may suffer loss, but he can not sue A for the damages for which he has suffered, as he could have done if A were of full age. B knew A was a minor, knew he could disaffirm the contract at any time, and it was his own folly to risk the doing of the work on the promise of a minor. The more ancient rule relating to contracts of minors CONTRACTS. 59 was Stated thus : The contracts of an infant are void or voidable according as they may be pronounced to be pre- judicial or useful. In other words, if the court sees that the contract is clearly against the interest of the infant, it will declare it void ; and whatever contracts are not clearly to his prejudice, but may be useful, these will be held voidable. By the word " void " is meant that the con- tract has no "legal force or effect at all; "voidable" means that it has some force and effect, but which, in consequence of some inherent quality, may be legally annulled or avoided. A voidable contract may be affirmed by the infant when he comes of age, but a void one can not be. The more recent authorities say that all the contracts of an infant are only voidable and not void, and that it is the privilege and right of the infant only (not that of the court) to declare his contract void. ' There is one exception that is of equal application to each of the above rules, namely, the contract of an infant for necessaries. Mr. Parsons puts this exception thus, ' ' The contract of an infant for necessaries is neither void nor voidable. It is permitted for his own sake that he may make a valid contract for these things, as otherwise, whatever his needs, he might not be able to obtain food, shelter or raiment. And the principles which govern this rule show plainly that it is intended only for his benefit, and is regarded and treated as an exception to a general rule." The word necessaries as used above, means such things as are proper and requisite for the sustenance of life. When the word is used in relation to the contracts of in- fants it is not used in a strict sense. The social position of the infant, his means, and those of his parents, are taken into consideration. Hence the term is not confined merely to what is requisite barely to support life, but in- cludes many of the conveniences of refined society. What may be allowed as necessaries to A, who belongs to the 60 ELEMENTS OF LA W. highest circles of rich and' refined society, will not be allowed to Z, who belongs to the poor and more humble walks of life. Infants, when not maintained by parent or guardian, may contract for necessaries, but when living with and supported by the parent or guardian, they are not liable for necessaries. Necessaries for the wife and children of an infant are necessaries for himself. Infants 'are not lia- ble at law for borrowed money, although expended for necessaries, but in equity the contrary holds. The following articles are generally classed as necessar- ies, namely: food, clothing, lodging, needful medicine, and proper instruction. The quantity and quality must of course be determined by the circumstances of each case. Before passing from this subject of the right of an infant to avoid his contract, it will be proper to add : I. The contract ceases to be voidable if it be ratified upon the attainment of the age of twenty-one years. One very important point arfees here. It must not be lost sight of. It is this: Some contracts are valid unless rescinded, others are invalid until ratified. If an infant acquires an interest in permanent property to which obligations attach, as interest in realty ; or enters into a contract which involves continuous rights and duties, benefits and liabilities, as if he becomes a partner in a firm ; he would be bound unless he expressly disclaim- ed the contract. This rule is just. Take the case of an infant holding himself out as a partner. Suppose he con- tinues to act as a partner till he comes of age and did nothing to disaffirm the partnership, he will be held liable to third persons dealing with the firm, after he comes of age, not knowing that he had quit the partnership. Of this Mr. Best says: "Here, by holding himself out as a partner, the infant contracted a continual obligation, and that obli- gation continues till he sees fit to put an end to it. If he CONTRACTS. 61 wished to be understood as no longer continuing as a partner, he ought to have notified it to the world. When- ever the contract is continuous in its operation there must be a distinct disclaimer; where it is not continuous the infant is not liable unless he expressly ratified them. 2. The contract can not be avoided if it be for neces- saries. 3. While an infant can avoid his contracts of sale of goods or for labor and the like at any time, from the mak- ing till of age, he can not avoid his conveyance of land until he becomes of age. The protection which the law thus gives to an infant is only intended to operate as a shield to him, to protect him from improvident contracts, but not as a sword to do in- jury to others. An infant is, therefore, liable for his wrongs, as for slander, trespass, and the like. An infant can not retain the benefit of his contract, and thus affirm it, after coming of age, and yet plead infancy to avoid the payment of the purchase money. He must return the article or pay the purchase money. The contract can not be avoided by an adult with whom the infant deals. The contract of an infant to marry forms no exception to the rule that governs all his other contracts, and so may be disaffirmed at any time ; the adult is bound to his or her promise unless the contract is so avoided by the infant. Genniueness of Assents expressed in proposal and acceptance. ■■ No contract can exist without assent, either expressed or implied. And that assent must be to the same thing done, or offered to be done, in the same sense. It must comprehend the whole of the proposition, must be exact- ly equal to its extent and provisions, and must not qualify them by any new matter. It is the test of a valid accept- ance as to the union of mind or agreement. Assent itself is defined to be the approval of something 5 62 ELEMENTS OF LAW. done ; an agreement to do something in compliance with a request. The question that perplexes the parties to a contract is, not whether the parties intended an assent, but, having every form of contract, has there in reality been an assent expressed, or only its semblance? It only requires a min- ute's reflection to be able to recall disputes, known to the student, where the question between the parties was that, the parties did not mean the same thing; or, that one of the parties was led to form an untrue conclusion concerning the thing in dispute by a statement of the other party in- nocently made ; or, that the statement may have been in- tentionally false ; or, the assent may have been extorted by fear , or, the party so importuned as to give an assent, which he would not have given, if he had been left to his free will. Each of the supposed cases represents a different form of unreal assent which may be presented to the student in the course of his business life. We shall speak of each case separately. Mistake. Mistake arises where the parties did not mean the same thing, or, meaning the same thing, one or both may have formed untrue conclusions as to the subject matter of the agreement. There are two kinds of mistake, namely, of expression, where the parties misuse words in stating the terms of the contract, and of intention. It is of the last class, inten-. tion, we shall now speak. As a general rule, in law and equity, a mistake of law does not furnish an excuse for wrongful acts or a ground of relief from the consequences of acts done, in conse- quence of such a mistake. This rule is founded in reason and justice. It will be plain to all that a man ought to be bound to a contract into which he has entered in clear and explicit terms, and such is the rule; but mistake is an ex- CONTRACTS. 63 ception, and the class of cases to which mistake applies may be grouped under the following heads: I. Mistake as to the nature of the transaction. The cases that arise here must of necessity be few. Few men ever enter into business relations when they are so circum- stanced as to be protected by this rule. And, if a man possesses all his external senses, it is not to his credit generally to have to plead the protection of this rule. The following is an illustration of this kind of mistake: Suppose A to be an illiterate man. B owes him several sums of money. He desires by deed to release two of them and retain the others. He has the deed read to him and it is misread. It, in fact, contained a complete dis- charge or release of all debts owed by B, but was read as a release of only two of the claims. He says at the close of the reading, "If it be not otherwise I am con- tent," and signs the release. It is not good; there is a mistake of intention on the part of A, and the release is void. The courts have laid the law down thus: "It ig plain on principal that if a blind man, or a man who can not read, or who for some reason, not implying negU- gence, forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper, which the blind or illiterate man afterwards signs ; then, at least if there be no negligence, the signature obtained has no force. And it is invaUd, not only on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature, in other words, he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is ap- pended." In such a case more reason appears in favor of a blind man than of the illiterate. In this day, if a young man passes idly through the days of school life — neglects to 64 ELEMENTS OF LA W. educate himself, the law ought to let him have no more protection under this rule than good conscience stretched to the limit will allow. Ignorance and negligence ought to be frowned down wherever they appear. 2. Mistake as to the person with whom the contract is made. At first sight it may seem strange that a man will not know with whom he is contracting, but it can easily happen. Suppose A knew a firm by the name of "X, Y, Z " to be doing business at Ada, O. He has not been at Ada for some time, and, in the meantime, the firm of "X Y, Z" has sold out to " M and N." A desires to pur- chase some wares or goods which he knew that "X, Y, Z" handled. He writes to " X, Y, Z " requesting them to send the specified articles. "M and N" receive the letter and fill the order. Is A bound to accept the goods they send? No. A never contracted with them. There is a mistake as to the person with whom he contracted. He intended " X, Y, Z " to accept the order, but it was ." M and N " that accepted. But, it may be asked, what difference does it make to A, provided he gets the goods which he ordered, who sent them? It may not make any difference in thfit particular instance, but permitting "M andN, " as a rule of law, to sue A on the contract would be a bad principle in application to business. In the first place, it would destroy the rule that there must be an union of mind. A never intended his mind to agree with "M and N." Secondly, it would destroy the rule that no one can accept an offer but the one to whom it is made. Thirdly, when one man enters into a contract with another, he generally has some reason for dealing with that man in preference to another; his character, his solvency, the convenience of dealing with him, may be important elements in the motive which induced the con- tract. In the case above given, suppose the firm of "X, Y, Z " to be in debt to A to the amount of fifty dollars. They were slow in paying. A, desirous of getting his CONTRACTS. 65 money, determines to order books to the value of fifty dollars. He did not especially need the books, but did prefer the books to the account. He orders the books. " M and N " fill the order and send the books to A. Now apply a contrary rule to that laid down as the law. A would be in no better situation as to the account between him and the firm "X, Y, Z," and would be in debt to the new firm of " M and N " fifty dollars. This would be manifest injustice; to make one debtor to a stranger against his will would violate every element of the law of contract and common justice. But, if " M and N " were to fill the order and send them, and at the same time notify A that they were successors to "X, Y, Z," and he were then to accept and keep the books, the contract would be perfect. For " M and N," by sending the books, made a proposal which A, by keeping the books, accepts, and there is then a perfect union of mind as well as consideration. 3. Mistake as to the Subject Matter of the Contract. The law looks carefully into this kind of mistake. When a man enters into a contract he must use com- mon sense, and, if he has used intelligent common sense and a mistake arises, and no negligence can be imputed to him, he ought to be permitted, in his defense, to set up mistake of subject matter. And such is the law if the mistake arises in one of the following ways, viz: (i.) Mistake as to the existence of the subject matter, which may arise in the following manner, namely; A and B contract to-day concerning a house which A sells to B. Unknown to either A or B the house was yesterday consumed by fire. Here the mistake goes to the essence of the contract; without it no contract would be made. A must bear the loss, but B can not sue him for damages for not conveying that which he did not have. If B has paid money to A, A must give it back. (2.) Mistake as to the identity of the subject matter. 66 ELEMENTS OF LA W. which may arise in the following manner, to-wit: Suppose two men, one A. B. Smith and the other C. D. Smith, were each an author of a text book on the same subject — say, Philosophy. M, who knows of but one author by the name of Smith, desires his work on Philosophy. So he writes to N in these words: " Please send me Smith's Philosophy." M, in fact, wants A. B. Smith's Philos- ophy. N has C. D. Smith's Philosophy, which he sends to M. Both books were known as " Smith's Philosophy." Here it is plain that the minds of M and N never met, and hence there is no true contract. (3.) Mistake of the thing ptomised known to the party promising. This is the only form in which mistake as to quantity or quality of a thing can affect the validity of a contract. It is seldom that parties make any mistake in stating quantity or price. When A offers to sell an article,, and B desires to buy, the law says to B, " Use your judg- ment; if you do not know the quality of the article, ask A to tell you what it is, and let him know you are relying on his judgment and statement. If he misleads you, you will be protected, but, if you rely on your own judgment and take no warranty, you buy it as it is with all its faults." Mr. Anson puts the following cases to illustrate this rule: A sells X a piece of china. {a) X thinks it is Dresden china. A thinks it is not. Each takes the consequences. It is a good sale. If it is Dresden china A loses ; if not, X gets a poorer bargain than he expected. (b) X thinks it is Dresden china, and A knows X thinks so and knows it is not Dresden china. The contract is good. So long as A does not deceive X he is not bound to prevent him from deceiving himself X relied on his own judgment, and can not blame A because it was wrong. CONTRACTS. 67 (c) X thinks it is Dresden china and thinks that A intended to sell it as Dresden china. A knows it' is not Dresden china, but does not know that X thinks he is selling it as Dresden china. The contract holds. The misapprehension by X of the extent of A's promise, unknown to A, has no effect. It is not A's fault that X neglected to make sure that all the terms which he desired to be in the contract were not introduced so as to form part of the contract. {d) X thinks it is Dresden china and thinks A intended to sell it as Dresden china. A knows that X thinks he is promising Dresden china, but does not intend to promise china in more than in general terms. The contract is void. Why? Because X's error was not one of judgment, as in (^), but regarded the intention of A, and A, knowing that X's intention was mistaken, allowed the mistake to con- tinue. From close study of the instances given it will be seen that X was permitted to rely on his ov/n judgment and be misled, and the contract would be good in all cases, but as soon as he ceased to rely on his judgment and A knew he was relying on his (A's) intentions, then the judgment of X ceases to be of any moment, and A must bear the con- sequences unless he corrects the mistake under which X is laboring. When a mistake in the expression of a written con- tract is so obvious, without extrinsic evidence, as to leave no doubt of the intention of the parties, the writing may be so construed by the court as to correct the mistake. Misrepresentation. If one of the parties is led to form a false conclusion concerning the thing in dis- pute by a statement of the other party innocently made, it is called misrepresentation and contract will not be binding. The thing innocently misrepresented must be a material fact and one that, had the truth been known. 68 ELEMENTS OF LA W. would have changed the contract. All that we can say here is, innocent misrepresentation of a material fact is ground' to set aside or avoid a contract. But what is, and what is not innocently misrepresented, can only be determined by the court, in any given case, when all the facts are made known. Fraud. If the misrepresentation is intentionally made it is fraud. Fraud renders every contract voidable from the beginning. No one is held bound by a contract which he was induced to make by another, who knowingly and purposely represented the facts in the case to be what they were not. In such a case there can be no such thing as a free and willing assent. To make up a case of fraud the following things must concur: First. It must be a false statement. Second. It must be a statement of a fact, not of law. Third. The party making the statement must know it to be false, or he must have made it in a reckless disregard of truth. Fourth. The party making the statement must intend the other party to act upon it to his injury. Fifth. The other party must have had a right to rely upon the statement, and did so rely. Sixth. Loss or damage must result from such false representation. To sum the whole thing up, suppose A goes to B and desires to buy some article from him. B knew A knew nothing about the article, so he thought to deceive him as to its worth, and thereby defraud him of his money. A says to B, "I must rely upon your judgment in this case." B replies, "All right; the facts are these:" and then went on stating that the article possessed certain qualities which he knew it did not possess, and which he stated for the purpose of CONTRACTS. 69 enhancing the value of the article in the estimation of A. A then buys the article, and it turns out to be worthless. A suffers great loss thereby. No one will dispute the justice that permits him to rescind the con- tract if he chooses to do so. Duress. This contract is only voidable. Duress consists in actual or threatened violence or imprisonment, the subject of which must be the party contracting, his wife, child or parent; and the one making the threat or imprisonment must be the other contracting party. If A enters into a contract with B to relieve C, who is no relation of A, from duress inflicted on him by B, A is not released from such a contract, but C would be, if the sole cause for making the contract was to free himself from the duress. For example. A threatens to kill B if he will not make a certain contract. B, , through fear, to save his life, makes the contract. He is said to make it under duress and so can avoid it or let it stand as he likes after he is free from the duress. The same is true if A had locked B in a room and would not let him out unless he signed a contract. B, to get his liberty, signed the contract. He is under duress and when at liberty can avoid it. The reason is that B did not do the act with a free will or voluntary desire. As to duress arising from threats of bodily harm. The mere threat of bodily harm is not sufficient to constitute duress. There must be a reasonable apprehension or belief that bodily harm or injury will be inflicted. The J:hreat may have been made good naturedly, or may have been made without any intention of carrying it out by an act; and the person against whom the threat was made knew or believed there was no danger or intention of inflicting injury, hence in such case there could be no duress. Undue Influence. If A uses so much influence 70 ELEMENTS OF LA W. on B as to cause B to enter into a contract or to do any act, that if he had been left to the freedom of his will and had carried out the bent of his own mind, he would not have made, the influence exerted by A is said to be undue, and B's act voidable. What is or is not undue influence must always depend upon the parties, the time, place and surrounding circumstances of each particular case. ' Legality of the Object of the Contract. The object of a contract is termed its subject matter. The act to be done or omitted is termed the subject matter. If the student will but reflect a moment on the com- prehensiveness of the statement of Professor Parsons, quoted at the beginning of this chapter, he will be con- vinced that it would be impossible to say what things would be the legitimate subjects of contracts. The presumption is in favor of all contracts being legal so far as the subject matter is concerned. But it is only a presumption and can be shown to be false. We can only say that the subject matter must be legal, and that fact is determined by the courts when the question is raised before them. It is very easy to declare that the duty of a legislator is to determine how much restriction ought to be laid upon each individual in order that there may result the greatest aggregate amount of liberty for the whole; but, of the many who declare this rule, how few are capable of prop- erly applying it. So, in the question of the legality of the subject matter* of a contract, all know or admit it ought to be legal, but what constitutes legality and what illegality is a question that puzzles the wisest jurists. What was yesterday illegal is to-day legal; what to-day legal, to-morrow is declared to be illegal ; and, stranger still, what is illegal in Ohio, only a foot farther west, in Indiana, is legal. CONTRACTS. 71 It is plain to all that certain contracts should not be permitted to be made, and so we find the several State Legislatures so declaring. If a statute forbids a certain thing to be the object of a contract, all contracts made concerning that thing are void; and it makes no difference whether the parties know the law forbids it or not, it is absolutely void. Ignorance of the law excuses no one. It is easy enough so long as the statute positively for- bids the act ; but suppose the statute does not in words forbid the act, but only affixes a penalty, is it void ? If there is affixed a penalty once for all, so that, once paying the penalty, the party can then, as often as he likes, con- tract concerning that object and have to pay no more fines, it has been held by the courts that a contract made in breach of such a law is not vitiated by the fact of the pen- alty and is good ; but if the fine is recurrent — that is, every contract in violation of the law draws after it the penalty — it is held that such contracts are void, for it ran not be doubted that in such cases the statute is intended to declare the subject matter illegal. There are a variety of objects of contracts that are of such a nature that it is impossible for a State Legislature to pass laws to reach them. But it is highly important to the public that contracts made concerning such things be not enforced; so we find the courts of law taking notice of such subject matter, and, when it is found to exist, they refuse to enforce the contracts and declare them to be against public policy. Here is a phrase, " public policy," of somewhat attract- ive sound, but it is not susceptible of a precise and abso- lute definition. Every court has a right to define it for itself and to say what cases shall or shall not be included under its ban. From its very nature it can not be defined, for, if it were, its terms could easily be evaded. It is evi- dent that all contracts which tend to pervert the course of public justice, such as stifling prosecutions, or contracts 72 ELEMENTS OF LA W. that tend to encourage litigation, or that are contrary to good morals, or contracts that tend to discourage marriage, should be declared to be void and not be permitted to be enforced. There remains a class of cases under this head which is more definite, namely, contracts in restraint of trade. Such contracts arise where, for example, a good blacksmith agrees not to carry on his trade at a certain place or within a certain distance of a given place. Here the court takes into consideration the reputation of the smith as a work- man, the distance prescribed and all other correlated facts, and determines whether or not the public good will permit such a contract to stand. All that can be said here of such contracts is: 1. There must be consideration for such a contract even if it be under seal. 2. The contract may be unlimited as to time, but must not be unlimited as to space. A may contract not to carry on his trade at a certain place, and it will be good, but if he contracts not to carry it on within the State of Ohio, the contract is void. 3. The restriction as to space must be reasonable in the judgment of the court. This doctrine applies to all kinds of, trades and professions. At this place I desire to call the attention of the student to a point which is, I know, a digression, but which on that account will serve my purpose the better. It is this: From the very nature of the subject matter of these con- tracts their validity must for all time depend upon the sound judgment of the persons chosen by the people to administer justice, whom we call judges. The subject matter of these contracts goes to the very essence of the social, moral a.nA domestic fabrics of our government. How important, then, that no one be chosen to sit as judge who does not possess the soundest views on these subjects and has back of him a character in which they find the most CONTRACTS. 73 positive expression. Can we expect one who has secured his judgeship by purchasing votes to be severe on those who are more unfortunate than himself and have been dis- covered? Can we expect the judge who, as a lawyer, stifled prosecutions for gain, or encouraged them from a like motive, to be very severe upon his more unfortunate brother? Can we expect the libertine to have an acute sense of "good morals" or a very well balanced mind as to questions which affect the freedom or security of mar- riage? No one ought to be permitted to wear the judicial ermine who has not back of him a character that will stand public inspection in open day, at high noon, and a public record as a lawyer that is free from taints and trickery. Such men can be found, and, happily, have been found. If any doubt exist, we have but to pronounce the names of Cooley, Campbell, Gray, Marshall, Hale and hosts of others, the noblest types of manhood, and all doubt van- ishes at once. If the people keep the judicial bench pure and clean, so that justice may be administered in all its integrity, we have but little to fear for the future of our country so far as questions of "public policy " are con- cerned. We have now taken a view of all the elements that en- ter into a contract. When they are all present we can say with certainty that the contract is good and will stand in law. If any one be absent then we can as positively say, the contract is defective and will not stand in law. We have considered all the points that are directly un- der the contracts of the parties, but it may be instructive to take a glimpse of the action of a court when a contract is placed before it for its inspection and determination. It is confidently asserted that much of the out-cry against courts and lawyers, as to their conduct and determination upon questions of law arising out of contract, springs from a want of information on the part of those who raise the cry, and it is this conviction that leads to the writing of 74 ELEMENTS OF LA W. this section. It is thought that when the principles, which guide the court in all its rulings on questions of law relat- ing to contract, are understood, those who may now see no justice in them, will be led to admit that " Law is the perfection of human wisdom." When a contract is made and fully performed, no questions of construction can arise in reference to its terms, but, if the contract is executory, such may arise. It is the duty of each party to an exe- cutory contract to faithfully perform his part and, if that be done, few, if any, questions would arise. Still ques- tions will arise not from a desire on the part of either party to the contract to do wrong, but from lack of clear- ly expressing the terms of the contract. It is a question of disagreement between the parties as to what the con- tract really is. So there must be an arbitrator. That arbitrator can not do justice and be governed by feeling and sympathy. Judgment can not be given to one of the parties because he is a poor man and the other rich, and who, therefore, can the more easily stand the loss. Such a basis for the construction of contracts would be a great public evil, as it would tend to make poverty and not jus- tice a virtue in the eye of the law. Right is right, and jus- tice is justice when applied to the dealings between a poor man and a rich one, as much as it is when applied to the dealings between the poor with the poor, and the rich with the rich, or between a corporation and a poor man, although we are much inclined to think that justice appears in an- other color when viewed in relation to corporations. It will be seen then, in order to apply the just and proper rule of construction, the court ought, as far as pos- sible, to let, not passion, or sympathy, or prejudice, or interest, but reason and justice to control in the construc- tion of all questions relating to contracts. If the following rules that have been laid down by the courts to guide them in all their constructions are viewed in this light, they will appear, not as they do to many now, CONTRACTS. 75 as unjust and oppressive, but as the most perfect and equitable that human wisdom can devise, or that fallible man can put into execution. On this point Professor Parsons says: "The importance of a just and rational construction of every contract and every instrument is obvious. But the importance of having this construction regulated by law, guided always by distinct principles, and in this way made uniform in practice, may not be so ob- vious, although we think it as certain and as great. If any one contract is properly construed, justice is done to the parties directly interested therein. But the rectitude, consistency, and uniformity of all construction, enables all parties to do justice to themselves. For, then all parties before they enter into contracts, or make or accept instru- ments, may know the force and effect of the words they employ, ot the precautions they use, and of the provis- ions they make in their own behalf, or permit to be made by other parties." If the meaning or sense of words is to be determined, this is called interpretation. If the meaning of the contract is to be determined it is called construction, which is apply- ing the sense of the interpretation to the particular case. Interpretation must precede construction, and is con- fined to the written instrument. Construction is to recon- cile the text of the intrument with the rules of law. It belongs to the court to construe the contract, and to the jury to say in what sense any particular word or words were used. Hence, what a contract means is a question of law. In construing a contract the first object of the court is to ascertain, if possible, what the parties themselves meant and understood. By this is not meant that, if the court can determine the true meaning and intent of the parties, it will always give the contract that force, but will follow it as nearly as the rules of law and the words which they saw fit to use will permit. It is plain that a court ought 76 ELEMENTS OF LA W. not to, and does not, do violence either to language or rules of law in construing a contract. The following are the more general rules to be followed in construing all written instruments : 1. The subject matter of the contract is to be fully con- sidered. 2. The situation of the parties at the time, and of the property which is the subject matter of the contract, and the intention the parties had of making the contract, will be of much help in guiding the court in its con- struction. 3. Where the language will bear -two constructions equally well, and one of them will make the contract void as contrary to law or public policy, and the other will not render the contract void, the last will be preferred and followed by the court in preference to the first. 4. The whole of the instrument must be taken together. Anything less than a consideration of the whole as a unit would lead to error in construction. 5. Where part of the contract is printed and part writ- ten, and the parts do not agree in all points, that which is in print must yield to that which is in writing. The reason of the rule is clear. The printed matter is arranged so as to cover the greater number of cases, and, where it does not apply to the particular case, it is corrected by the writing, which shows plainly that it was the intent of the parties to contradict the statement in print. In closing this section it may not be amiss to observe that each party to the contract ought faithfully to perform his part of the contract. No surer way can be pursued by a man to ruin his standing in business circles than to wilfully violate his contractual promise. Business is, to a great extent, done upon the confidence which we place in the word of our neighbor, and, if this confidence be destroyed, business must suffer thereby; and the man justly deserves to be considered wholly unworthy of confi- CONTRACTS. 77 dence who has broken a contract simply because he sees that the contract is against his pecuniary interest. He has been mistaken in his judgment, and tries to shun pay- ing for his own folly by breaking his contract and thereby casting the loss upon another. Few stop to j-eally con- sider how unmanly and dishonest such an act is. He will break his word for a few dollars. By so doing he destroys public confidence, thejeby causing other men to be sus- pected or distrusted, and making it more difficult for the deserving to get credit. Such a man is an injury to the public where he lives. But misunderstandings and various other causes may arise which make it proper and right to resist a completion of the terms of a contract and a resort to the courts justi- fiable. In such a case let your hands be clean, and be ever ready to do your part faithfully and honestly, and you have nothing to fear from the public examination of your manner of doing business. Why Contracts Should be Reduced to Wri- ting. It is certainly a very painful thing to reflect on the numberless disputes and quarrels between neighbors and friends that have arisen out of contracts the terms of which were not reduced to writing. Why, then, should neighbors and friends run the risk of disagreement arising to mar the pleasant relations existing between them when it can be so easily avoided ? The importance of reducing contracts to writing is clear to anyone who will reflect but a moment on the subject. The New York Tribune, in a recent number, contains the following excellent remarks on the importance of reducing contracts for labor to writing and what such contracts should contain. It says : "To avoid the danger of irritating disputes it is better for both parties to have a written contract specifying especially the following points in regard to which misun- derstandings most often arise: The length of term of hiring ; the pay and the mode of paynaent ; the hours of 78 ELEMENTS OF LAW. work on week days ; arrangements for overtime on special occasions of need, binding the employee to assist the em- ployer in urgent cases for special rate of pay; holidays, and work expected on them, including Sundays; causes for dismissal on the one part and of quitting work on the other; what pay should be given for a broken month, and by the day in such cases ; penalty for absence from work without leave, which is as serious a matter for the employer as would be the failure to pay wages for the em- ployed; the charge for board during lost time, and any other special point which might need to be satisfactory and certain. ' ' When a man is hired by the month, or any other period, and is paid so much a day, his pay goes on only when he works, and he keeps holidays at his own cost. If he is hired by the month, and paid for the month, he is expected to work every day, Sundays included, doing on these days only absolutely necessary work, as milking, feeding, watering, cleaning the animals. Other holidays are not legally idle days, and the hired man is not excused from work unless the employer gives him the holiday. If the man leaves work on such days, it is at his own ex- pense. A working month has twenty-six days, and a man who loses time or breaks his time is paid on this basis. A man who hires by the month is paid by the month, and if he voluntarily leaves without good reason before any month is expired, he cannot collect that month's pay, nor any part of it- He cannot be discharged until the end of the month, but if he is discharged before the end of the month he can collect the whole of the month's pay, unless he is discharged for good cause. "In cases where the employer furnishes a house to the hired man who may have a family, a condition in the con- tract should provide that the house be vacated the next day after the hired man quits work of his own motion. This is just to the employer, and no hardship to the em- CONTRACTS. 79 ployee, because he can better continue work until he is ready to move than the employer can do without help until the house is vacated. It is well also to have a pro- vision that a month's notice to leave shall be given on both sides, excepting for gross misconduct on either part. This provision tends to self-control on the part of both, who are each apt to fly off on the least provocation, the employer appearing to domineer, while the hired man is thought to be impertinent. 'Take no heed to all words that are spoken ' is useful in such cases. It is better to reserve one's self until later in cases of dispute, and then speak only with reason and deliberation ; for it is 'a fool speaks all his mind. ' ' ' Moreover, the employer should act the part of a friend to his workman. What a pleasant record was that of the hired man who served faithfully forty years, and between whom and his» employer there was a kindly consideration growing out of this long reciprocal service and friendly regard. If the employer is superior in any gifts to his hired man, let him in thankfulness for these advantages impart some of them to the inferior, and thus twice bless these gifts. If any employer or hired man need good ad- vice in these regards, let him read what the Apostle James wrote, and govern himself accordingly. There should be a cordial sympathy between employer and employed, and a mutual desire to do what is exactly right to each other. It should not be a question solely of money, for this has a degrading influence upon men's mind and often leads to injustice when small matters are in question. "To aid the parties in drawing up their contract, a few forms will be given. It will not be out of place, however, to state that every contract ought to be signed by both parties to it, and, if there is more than one party on a side, then by all. The law requires but few contracts to be witnessed, yet it is prudent, in very important contracts, to have them witnessed. 80 ELEMENTS OF LAW. " Everything agreed upon must be put into writing. If it is not written out, it cannot be proven in court by parol or oral evidence, because the parties have signed what they said was the contract, and to permit one of them to show by oral evidence that it is not the contract would be mak- ing a farce of the writing. The writing is the evidence of the terms of the contract to which the parties agreed, and the terms can neither be added to nor taken from by oral testimony." FORMS OF CONTRACTS— General Form. ARTICLE OF AGREEMENT. This agreement, made this Fifteenth day of April, 1886, hy and hetween R. D. Lee, of Jew- ett, Ohio, of the first part, and H. P. Wagner, of Ada, Ohio, of the second part, WITJ^ESSETH: that the said party of the second part, in consideration of the agree- ments hereinafter set forth, covenants and agrees to, and with the party of the first part, ■f^Q (now insert at length all that the party of the second part is to do.) In consideration of which the said party of the first part covenants and agrees to pay the said party of the second part the sum of dollars, payable when the said party of the second part shall have fully com- pleted the things so agreed hy him to he done- (Or at a certain time, or in installments, or at any place or in any manner agreed upon.) In witness whereof, the said parties have hereunto set their hands the day and year first above written. Signed and delivered in the presence of ~) H. E. Ward, I R. D. LEE, GEO. F. Randall. j H. P. WAGNER. CONTRACTS. 81 The names of Ward and Randall appear as witnesses. If the contract be called in question, they would be sub- poenaed as witnesses to testify that the contract is the one they signed. This they would do by acknowledging their names to be in their own handwriting. If neither of the witnesses, on account of death or insan- ity, or being out of the jurisdiction of the court, or _ because they can not be found after diligent enquiry, or other sufficient cause, can be brought into court to testify, then the contract must be proved by proving the hand- writing of the witnesses. Seldom more than the handwri- ting of one witness is thus proved. This rule of law makes the proof of witnessed contracts more difficult than if there were no witnesses, for then it would be proved by the handwriting of the parties themselves. So the wis- dom of not having minor contracts in writing witnessed is obvious, yet it is better, in the case of important interests, to have witnesses, and forego the ease of proof to secure the certainty of the proof. If the witnesses be called, and when shown the writing, deny, or do not recollect, having seen it executed, it may be established by other evidence. CONTRACT EXECUTED BY AGENTS. ARTICLE OF AGREEMENT. This agreeinent, made this Fifteenth day of April, 1886, between J. B. Maule, of Ada, Ohio, party of the first part, by J. S. Adams, his agent, and 0. P. Blue, of Ada, Ohio, of the sec- ond part, by J. H. Sheets, his agent. WITJVBSSBTS:—(iiere insert the agreement as above.) In witness whereof, the said parties have hereunto set their hands the day anfi year first above written. fj. B. Maule, ^y\]. S. T! fO. P. S. Adams, his Agent. Blue, Sheets, his Agent. 82 ELEMENTS OF LA Vi . It will be seen that this form shows " between " whom and "by" whom the contract is made. When a contract is made by an agent, it should be worded as though made by the principal, and the princi- pal's name must be signed first and followed by that of the agent. Partnerships can make contracts in the firm name and no trouble will be experienced in adapting the above . forms to suit the case. CHAPTER III. PRINCIPAL AND AGENT. Introduction. In organized society there arises, of necessity, a complexity of human affairs. The scope within which a man can act is limited. He can not, himself, attend to different things that demand attention at the same time. Neither can he perform all acts that are required of him by society, unless he uses certain means to accomplish his purpose. We find him, then, inventing one kind of a machine and then another, that he may be able to perform the duties demanded by society. But, when he has invented his machine, he is powerless, within himself, to operate it. He must have assistants. The duties of these assistants will vary greatly. Some will be employed to run the machine; others to provide the raw material ; others to take care of the goods thus manufactured ; others again, to sell them to the public. So we see there is a variety of labor which these assistants are called upon to perform. In one sense they are all alike; they are employed to do the labor for another: in another sense they differ widely; some perform manual labor only; others are required to use discretion. Therein is a difference, and that difference is marked by the names given each PRINCIPAL AND AGENT. 83 class. Those who are required to perform manual labor are termed servants; those required to use discretion are termed agents. As a different name is thus given the different classes of persons employed, so is there a different name given to him who employs, corresponding to that of the employed. Thus, when we speak of a servant, we call his employer a master; when we speak of an agent, we call his employer a principal. Another mark of distinction is, that agents are employed to represent their principal in a business relation, while a servant is not spoken of in relation to business. Definition. An agent is one who undertakes to transact some business, or manage some affair, for another, by the authority and on the account of the latter, and to render an account of it: The person so employing an agent is called the principal. As discretion distinguishes an agent from a servant, likewise the different degrees of discretion required to be exercised by the agent forms a basis for the classification of agents. On a moment's reflection, we see that the great variety of business pursuits necessarily require a great variety of persons who exercise different degrees, or rather kinds of discretion. The names given to agents indicate the kind of business in which they are employed, as factors, brokers, and the like. No one versed in business relations will, when he hears one of the above appel- lations, mistake the kind of business in which the agent is employed. There can not be a principal and agent without, at the same time, a relation existing between them. This relation is termed agency, which term is defined thus : A contract by which one person, with greater or less dis- cretionary powers, undertakes to represent another in some business relation. 84 ELEMENTS OF LA W. The foundation of the doctrine of agency is: that what a man can do himself, he can do through another. Hence we see that the act of the agent is not the agent's act, but, in the eye of the law, is the act of the principal. If a benefit comes from it, that benefit belongs to the principal; if an injury, the injury is looked upon as proceeding from the principal, and he is held responsible for it, and must make good the loss sustained thereby. In the definition of the term agency we find the word power used, and it will be necessary to get a clear notion of that word before we go further. If A has a right to do a certain act he is said to possess the jJower to act. Suppose, in place of doing the act himself, he sends B to perform it for him. B has no right, in the first place, to do the act, but the right of A is transferred to B, and hence B is said to possess the right to act. This right carries with it, to B, the power to act, and the delegation of the power is called the authority of B. So, when we see another doing a certain act, and think he does not possess the right to do so, we enquire by what authority he acts. He replies by showing us the delegated power of another. Kinds of Agents. In speaking above in reference to the occupation in which the agent was employed we spoke of the various classes of agents. We come now to speak of agents in reference to the extent of their authority to act. Taking authority for our basis we have the following kinds, or classes, of agents: 1st, Universal, 2nd, General, 3rd, Special. I. An Universal Agent is one appointed to do all the acts which the principal can do, and which he may lawfully delegate the power to another to do. It is a complete putting of the agent in the place of the principal. The agent becomes the ' ' alter ego ' ' of the PRINCIPAL AND AGENT. 85 principal, leaving "ego" nothing to do. It is an imprac- ticable relation and never exists. 2. A General Agent is one authorized to transact all his principal's business of a particular class or kind or at 2. particular place. An example of this class of agents would be where a firm authorized A to buy all the raw material that they will use in their manufactory or all they would buy at a certain place. 3. A Special Agent is one given authority to do only one or more special acts, as where A authorizes B to purchase a certain horse for him or a certain number of specified horses. The definitions seem to make the distinction between the general and special agents very clear, but there are cases when it grows very shadowy and each seems the other more than itself. However, a very important dis- tinction has been taken between the authority of a general agent and a special one. This distinction is in reference to private instructions given by the principal to the agent and the violation of them by the agent. It is laid down by Chancellor Kent that "the acts of a general agent will bind his principal so long as he keeps within the general scope of his authority, though he may act contrary to his private instructions, and the rule is necessary to prevent fraud and encourage confidence in dealing. But a special agent, being constituted for a par- ticular purpose and under a limited power, cannot bind his principal if he exceeds that power." It will be observed that the Chancellor refers to the "private instructions',' of the general agent and to the " lim- ited power" of the special agent. It is necessary to dis- tinguish clearly between these expressions. What the term "power" means is fully explained above. It remains to get a clear meaning of the term "instruction " as used in the law of agency. gg ELEMENTS OF LA IV. We learned that if A delegated his right of action to B, he gave B the power to act. If he gives B the power to buy all of a certain class of goods that A might desire to purchase, we call B a general agent, and his power is not limited except to the class of goods that are to be bought. Suppose, besides the delegation of the power, A directs B not to pay more for the goods than a certain price specified by A. This direction as to price is not a limita- tion on the power delegated, but is something entirely separate and distinct from it, and is termed "instruction." The "power" is to buy; the "instruction " relates to the price, and is a question of B's judgment. If B violates the "instruction," A can not say he violated the "power" and, therefore, had no right to act. The right to act depends upon the authority or power and not on the instruction. So B, having the "power" of A to act, can do so, even if he violates the instructions ; and, as the act of B is considered as the act of A, the judgment of B as to the price will be treated as the judgment of A, and A will be bound by B's action even if he does violate the private instructions of A. But the question comes up, why is the power of a special agent considered as limited any more than the power of a general agent? Is not the power of a special agent to buy a certain black horse just as distinct from the price to be paid as the power of a general agent from the price he is directed not to exceed? It is; and I shall endeavor to show that "limited power " is used in reference to a breach of instructions that were intended to be communicated, and has no reference to private instructions not intended to be made known. Suppose A delegates B power to sell a certain horse, provided he receives at least one hundred dollars for him. Nothing is said about B keeping the minimum price a secret. If C deals with B it is C's duty to inquire of B concerning his power to sell. It is B's duty to inform him PRINCIPAL AND AGENT. 87 of his power and also of the restriction placed upon it. If he does not he is guilty of a fraud on C. Now, if C makes such inquiry of B, and is informed of the restriction as above stated, and then buys the horse of B for ninety- five dollars; he can not hold A responsible for the action of B. There is perfect justice in this rule. C knew B was doing an act for which he had no authority. But suppose the facts somewhat changed. A delegates B power to sell a certain horse. He at the same time instructs B to get as much as he can for the horse, but not to take less than one hundred dollars for him, and not to state how low he is authorized to sell, because that would prevent his obtaining more. B goes to C and offers the horse for sale. C asks him if he possesses authority to sell the horse. B replies, "Yes." But C says nothing, of course, about the minimum price. C offers him ninety- five dollars for the horse and B accepts. Is A bound by the sale? If private instructions limit the power, he is not; if private instructions do not limit the power, he is. On this point Chief Justice Parker, of New Hampshire, says: "Where private instructions are given to a special agent respecting the mode and manner of executing his agency, intended to be kept secret and not communicated to those with whom he deals, such instructions are not to be regarded as limitation upon his authority; and, not- withstanding he disregards them, his act, if otherwise within the scope of his agency, will be valid and bind his employer." It is clear, then, that if a special agent violates his pri- vate instructions, his act will bind the principal as well as the act of a general agent when he violates his private instruction. That being true, I can see no reason why the above rule is laid down. Why not say that in all cases of agency, if the agent disobeys private instructions, his act will, nevertheless, bind the principal; but if an agent exceeds his power, his act is void, lacking authority, and 88 ELEMENTS OF LA W. will not bind the principal ? However, the wording of the rule is as given in the quotation. The authority of the agent, unless the contrary clearly appears, is presumed to include all the necessary and usual means of executing it with effect. If the authority be put in writing then there can no presumption of means be employed, but such, and only such, as are designated in the authority can be employed. An agent can not appoint a sub-agent unless he has dele- gated to him the authority to do so, or unless it is custom- ary in that line of business for the agent to appoinl: sub- agents, or the nature of the business is such as to make it impossible to be transacted without the assistance of a sub- agent. "Who may be Agents. Before closing this section, we shall speak briefly as to who may act as agents. As the act of the agent is looked upon as the act of the princi- pal, it is self-evident that those civil disabilities that render a person incapable of making a contract, can have no application here. Hence, an infant can be an agent and every act will be binding on the principal, and the principal can not rescind the contract on the ground of infancy, because the infant is looked upon, in that trans- action, as being as old as the principal. Even a slave could act as an agent. But those physical, or rather mental, incapacities have application here; hence, lunatics, and persons non compos mentis, cannot act as agents. As the act is the principal's act, it follows from parity of reason, that an infant, acting as principal, will not be bound absolutely by the act of his agent, any more than by his own act. Duties of Agents. The relation existing between a principal and agent is one of trust and confidence. It is no light thing to be selected by another and intrusted with his business affairs. By that act the principal says .to the PRINCIPAL AND AGENT. 89 world, that he puts confidence in the agent as a person of honor, truth, and business capacity, and asks them to re- ceive him and treat him as a person possessing all those qualities. By accepting the agency, the agent says to the world that he will faithfully, and honestly, and to the best of his ability, perform the duties of his agency ; and, if the agent fails in the discharge of any one of these requirements, he has not only brought' loss upon his principal, but, also, done an injury to the public by destroying public confi- dence in his word. There is much more in the old maxim "a good name is better than riches," than the mere sound of words. One who lives out that maxim has a guaranty of success as an agent, and he can reasonably expect pre- ferment. It is self-evident that the particular duties of an agent differ according to the kind of agency, and to the terms and end of his employment. The duties of a cashier of a bank, and those of a factor differ as widely from each other as the duties of each differ from those of an auction- eer. As the act done is not considered as the agent's act, but the act of the principal, it is the duty of every agent to execute the orders of his principal. Of course cases of necessity and unforseen emergency constitute exceptions to this rule, and in such circumstances the agent is free to exercise his best judgment so as to save his principal harm- less. It is likewise his duty, to keep his principal well informed on all matters likely to effect the interests of the principal's business in which he is engaged, and in the discharge of his duties, to exercise the skill employed by persons of common capacity similarly engaged, and that degree of diligence which persons of ordinary prudence are accus- tomed to use about their own affairs. It would be impossible to secure agents, if they were held to the standard of the highest skill and diligence. It is only practicable to demand the common or ordinary skill and diligence. The public do not expect to find in a 90 ELEMENTS OF LAW. young lawyer the wisdom, learning and skill of a Webster or a Marshall. They kindly give the young attorney time to fit himself for the more careful and arduous duties of his profession, by not calling on him with constitutional ques- tions as soon as he has "hung out his shingle." liiaMlities of Agents. As the agent occupies a middle place between his principal and third persons, it will be better to view his liabilities in a two-fold manner; first, as they relate to his principal and, second, to the third persons. First. The relation of agency is based on agreement. Any violation of the terms of this agreement, by the agent, will make him liable to his principal for all damages that result from the breach. He may, by exceeding his author- ity, by misconduct, by negligence, by omission to act and by doing an act, the natural consequences of which he knew, or ought to have known, would result disastrously to his principal, make himself liable to his principal for a breach of the agreement. The measure of the damages for a breach of the agreement must depend upon the nature of the act and the age and skill of the agent, together with the past experience and the surrounding circumstances. Second. The law looks upon the agent as an instru- ment of the principal, and, wherever it finds an agent duly constituted, who names his principal, and acts in his name and does not exceed his authority nor violate in- structions, it will never hold his agent liable to third parties. The third person dealing with an agent becomes liable to the principal, and the principal to him,, as though the transaction had been made by and between the prin- cipal and third person. If the agent does not disclose the name of his principal, but leads the third party to deal with him as a principal, he will be liable to the third "party; in such a case, if the principal receives the benefit of the transaction he will, as PRINCIPAL AND AGENT. 91 soon as he is discovered, become liable, as well as the agent, to the third person. The agent can, of course, make himself liable by express agreement to stand good for. the contract which he makes for the principal. The agent should always contract in his principal's name — draw all agreements and writings in the name of his principal and sign them in the name of his principal as done by him as agent. Examples of how to draw and sign such agreements and writings are given under contracts. However, it will be well to remind the student that, if the agent signs his name to a promissory note when he intends it to be paid by his principal, he will make himself per- sonally liable thereby ; for it is a rule of commercial law that no one is liable on a promissory note unless his name appears on the instrument, and, again, every person whose name appears on the instrument is personally liable. The reason for this rule is, the public has no means of knowing who are, or are not, liable on a promissory note, unless their names appear on the instrument. In any other writing, excepting notes and contracts under seal, the agent can show that the principal is liable evjsn if he has signed it in his own name. Likewise the principal can show in all such writings that he is the real party to the contract, and, when the writing requires any money to be paid, direct the third party not to pay it to the agent, but to himself. An agent should be very careful about signing his prin- pal's name to promissory notes, bills of exchange and drafts. He should make it a rule never to do so unless he has express authority. An agency given in the most general and sweeping terms will not be sufficient to rest on with certainty. Of course there may be express power which necessarily imphes the power to make and transfer negotiable paper, but s.uch implication must rest upon a 92 ELEMENTS OF LAW. Strong necessity and then amounts to an express au- thority. If the agent describes himself as an agent, but does not disclose the principal, and it turns out that the agent is in reality acting for himself, he is of course liable to the party with whom he contracted. Before leaving the question of the agent's liability, it will be necessary to state that if the agent, acting in good faith, in the name of the principal and for the principal, should exceed his authority or go contrary to his instruc- tion, the principal may, after he is fully informed of the nature of the transaction, ratify the act of the agent, and thereby put the act so ratified on the same footing as though the agent had not exceeded his authority or in- structions. Hoiir Agency is Terminated. i. Revocation. The authority of a special agent extends only to the act designated, and, when that is performed, the agency is ended. The principal may, as a general rule, put an end to the agent's power to act at any time before the act is completed. If the principal sees fit to withdraw the agent's authority, such an act is termed a revocation. The power of revocation always exists and can be exer- cised at pleasure, unless the agent has what is termed ''an agency coupled with an interest," by which is meant that the agent must have an interest in the thing itself on which the power is to be exercised, and not simply an interest in that which is produced by the exercise of the power. An example will make this clear. A gives B a mortgage which contains a power of sale. Now B is the agent of A to sell the land whenever the mortgage falls due and the money remains unpaid. If B were an ordi- nary agent, merely, then A possesses the power to revoke his authority at any time. But, if A could revoke his authority, of what benefit to B is the power of sale con- tained in the •mortgage. But B has an interest in the PRINCIPAL AND AGENT. 93 thing itself on which the power is to be exercised, that is, an interest in the mortgage distinct from the money to be realized from a sale of the land, namely, the power to sell, and it is the right which renders his agency irrevocable. Since the principal has not the power to revoke such an agency in the lifetime of the agent, the agent's death will not give him that right, and so the authority of the agent, who has "an interest coupled with his agency," passes over to his personal representatives on the death of the agent. In the example given above, if B dies before the mortgage falls due and the land can be sold, his personal representative, say his son, will succeed to the authority and sell the land at the proper time. It is necessary that the principal give notice to the agent of the revocation, and the revocation is not in operation till received by the agent. This is a just rule and easy of application. Revocation may be made formally by public notice in writing; or informally by writing or parol; or simply by sending another agent to supersede the former in the execution of the authority. 2. Renunciatio7i. The relation of agency, being found- ed on agreement, may be terminated by the agent as well as by the principal. When the agent puts an end to his agency, the act is termed renunciation. The agent should notify the principal at once, that the agency is ended, so that the principal may secure another agent without loss of time. Like revocation, renunciation may be made at any time before the act is completed. If the renunciation is made after a part performance or exe. cution of the authority, the agent becomes liable for the damages which may thereby be sustained by his principal. This is also a just rule ; else unprincipled agents to gratify revenge would bring great loss upon their principal by renouncing their agency after part execution of the author- ity. But the rule has equal application to the principal. 94 ELEMENTS OF LAW. He can not revoke the authority after part execution un- less the agent be fully indemnified. 3. Death. Death of the agent ternninates instantly all agencies not coupled with an interest. This results from the nature of the relation, which is a personal one. The principal selected his agent for some personal qualification and, when the agent dies, that peculiar quality ceases. It is not reasonable to presume that his personal representa- tive will possess the same quality, or be as well fitted for the position. Besides, being a relation founded on agreement, it is impossible to be inherited ; for, if the heir of the agent is permitted to succeed, it must be with the consent of the principal, or else the law will compel the principal to be responsible for the acts of another whom he has never chosen, and over whom he has no control. This would be destructive to the very idea of agency. The death of the principal, likewise, puts an end to the agency. There is a difference of opinion whether the rela- tion terminates immediately on the death of the principal, as it does on the death of the agent, or whether there must be notice given to the agent before his authority is terminated. No damage or inconvenience to third persons can result from the rule that terminates authority instantly on the death of the agent, but, third persons may be subjected to great loss and inconvenience, if the authority terminated at the mo- ment of the death of the principal. Suppose B, the agent of A, is removed some distance from his principal. On the first day of the month at nine o'clock in the morning A dies. At ten o'clock of the same day B makes a contract, under his authority as agent, with C. It was impossible for B to hear of A's death. Suppose, at eleven o'clock on the same day, C, relying on his contract with B, enters into business relations with D. He executes the business transaction with D, and can not undo his act. At one o'clock in the afternoon, B receives word of A's death. Now, apply both rules. First, suppose the agency termi- PRINCIPAL AND AGENT. 95 nated at nine o'clock on the death of A. B, not know- ing of A's death, had innocently, under color of right, contracted with C, who, relying on B's authority, had put himself in business relations with D in such a manner that he could not be released. But B had no authority at ten o'clock, so his contract with C is not binding on A, nor on B, as no credit was given to him. C can not fall back on B to be saved from loss arising out of the failure of authority; consequently he will have to sustain a loss occasioned by an act over which he had not the least con- trol. With all due respect to the able jurists who hold this to be the rule of law, we must say that a more unjust one can not be devised. But, let us apply the second position, that the agency is not terminated until notice of the principal's death is received by the agent. Take the case given above. The agent did not have notice of the death of his principal till one o'clock in the afternoon. The contract was made before notice of death ; consequently, while B had author- ity to contract. Hence, C, having a binding contract with B, could go on with his business relation with D and not suffer loss ; while B would be saved harmless by the estate of A which would lose nothing thereby, any more than if A had lived till two o'clock in the afternoon. A more simple and just rule can not be applied, and, while it is not followed by the English court, nor by a majority in the United States, it is hoped that it will become uni- versal. Such, however, is the rule of law in Pennsylvania, Missouri and Ohio. 4. Insanity. If the agent becomes insane he, of course, can no longer act, and the agency is terminated. If the principal becomes insane, it likewise terminates the agency. But when is the authority terminated — at the moment of insanity or when the agent has been notified of the insan- ity? The rule is, not till the agent has notice of the insanity. But what amounts to notice? Not rumor, nor 96 ELEMENTS OF LA W. direct personal notice from some member of the family, but it must be the finding of a jury appointed for that purpose, and notice of such finding of insanity, before the agent will have evidence of the insanity of his principal. No exception can be taken to such a rule, and the only wonder is how such a just rule could have been established by the same men who hold that the death of the principal instantly terminates the authority. Before leaving the subject of agency it will be well to remind the student that officers of government are called public agents and are subject to the laws of agency in gen- eral. The public agents differ most from private agents on the point of personal responsibility. A public agent describing himself as such is not bound personally by a contract which he may make on behalf of the government, even though he would have been bound had he made the same as a private agent. The reason of this distinction is said to be that no one can be supposed to give credit to an agent of the govern- ment, but that all the credit was given on the good name of the government and its ability to pay. There is noth- ing in the nature of the relation to hinder him from becom- ing personally liable if he expressly so agrees to become liable. In the history of our country the time has been when the credit of one man was greater than that of cer- tain States. In partnership, which is the subject of the next chapter, the student will see a further application of the law of agency. PARTNERSHIP. 97 CHAPTER IV. PARTNERSHIP. As soon as a community or society is organized, diversity of labor becqmes necessary. As the society grows, and others are multiplied, commerce becomes more extended and requires greater concentration of power and energy to meet its demands. So long as the separate action and means of the individual are sufficient to supply the wants of the community he will continue to act alone and in his individual capacity. But every society will, sooner or later, if it makes any progress, in civilization, outgrow the power of the individual acting alone to supply its wants. Then necessity, the mother of all inventions, suggests the union of the strength and means of two or more individ- uals, that this union be directed to one end — the doing of one thing — that thereby greater results may be obtained. Acting on this suggestion, men have formed such unions, and the result has been that what could not be attained by the individual has been easily performed by the aggre- gate. Such an union is termed a partnership. This term has been variously de'fined. Thus: Kent — "Partnership is a contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions. " Thus: Parsons — "A Partnership exists when two or more persons combine their property, labor and skill, or one or more of them, in the transaction of business, for their common profit." By examining the above definitions we find the follow- ing elements: First. Partners. There must be at least two per- sons before a partnership can be formed. But there is no limit to the number who may thus associate themselves together. A large body is unwieldy ; and experience has 98 ELEMENTS OF LA Vt . shown that a partnership, to be successful and harmonious, ought not to have too many partners. Second. Contribution. Each partner in a pure partnership must contribute something. The things that may be thus contributed are money, effects, labor and skill. No one partner is required to contribute all ; he may do so, or contribute any one or more. Third. The Object. Not every contribution of any or all of the above named things will form a partnership. The contribution must be for a specific purpose. The object in view is to aggregate capital, labor and skill to carry on business. Fourth. The Agreement. Some motive must exist, else men would not part with their, capital, or labor, or skill. Some risk is to be run. There is danger of losing every thing contributed. On the other hand, ex- pectation is found. The hope and expectation of gain is greater than the danger of loss. If not, no one would enter into a partnership. But, let the enterprise result either way, man's desire for gain and his fear of loss will suggest to him the pro- priety of a full and clear understanding as to how the losses are to be borne, and, in what manner and propor- tion the profits are to be divided. We shall consider the subject of partnership under the following heads, viz : First. How Formed. Second. Partners. Third. How Terminated. Fourth. Effect of Dissolution. Fifth. Partnership Property. Hoiv Formed. Wherever union or agreement of mind exists, it is a cardinal principal of the law, that that union or agreement must be the result of a free and uncon- strained will. In the definition of partnership we find PARTNERSHIP. 99 there must exist an agreement. Hence, partnership is the result of a voluntary contract. There is no such thing as one being made to become a partner against his will. As no one can be compelled to become a partner, neither can the firm be compelled to receive a person as a partner. If they see fit to receive him, they of course can do so, but that would bq the result of a free will and choice. There are three kinds of partnerships : universal, general and limited partner.ships. There are very few, if any, universal partner- sllipSt An approach to them is rarely found. They exist where all the property, labor and skill of all the members is brought into the common interest and employment for the common benefit. A near approach to such a partner- ship once existed. at Zoar, Tuscarawas County, Ohio. It was afterward incorporated and ceased to be a partner- ship. A General Partnership is the one in general use. If the number of partners is great it is usually spoken of as a "joint stock company." The persons forming a general partnership are called general partners. A liimited Partnership consists of one or more general partners, with a special partner, who contributes a fixed amount of capital, under certain regulations pre- scribed by statute, and who is exempted from liability for the partnership transactions beyond the capital which he has contributed to the capital stock. This form of partnership, being wholly regulated by stat- ute, must be in writing and conform to it strictly in its creation to secure its benefits. We shall speak of it briefly and give the mode of its formation before going on with the discussion of the more regular and common form of partnership, namely, general partnership. To form a Limited Partnership there must be at least one general partner. By this is meant that one, at 100 ELEMENTS OF LA W. least, of the firm must be liable for the debts of the firm to their full amount, regardless of the amount he may con- tribute to the capital stock. With the general partner or partners there must be associated one or more partners who are termed special partners. A special partner is responsible for the partnership debts only to the amount that he actually contributes to the capital stock. , The general and special partners must sign a certifi- cate, which must contain the following items: First, The name or firm under which such partnership is to be conducted: Second, The names and residence of each partner, and distinguish who are general and who are special partners : Third, The amount of capital that each special partner has contributed to the common stock : Fourth, The general nature of the business to be transacted: Fifth, The time when the partner- ship is to commence, and when it is to terminate. The certificate must also be acknowledged before an officer authorized to take acknowledgment of deeds, and be recorded by the recorder of deeds in the county in which the principal place of business of the partnership is situated, in a book to be kept for that purpose, and open to public inspection. If the partnership have places of business or business situated in'different counties, the cer- tificate and the acknowledgment thereof must be recorded in like manner in the office of Recorder of Deeds in any such county. If any false statements are made in such certificate, then all the limited partners at once be- come general partners and subject to all the liabilities of general partners. The firm must cause a copy of the certificate of its organization to be published in the county paper, or a paper having a general circulation in the county where it has its principal place of doing business. If there be no county paper published for six successive weeks, immediately after such certificate is recorded, such publication must be made likewise in other counties if the PAR TNERSHIP. 1 01 firm has a place of business therein. If such publication be not made, the partnership will be treated as general. So much for the formation of a limited partnership. We proceed now with regular or general partnership. An agreement to form a general partnership may be made orally or in writing. It differs in its formation from a corporation in this: A corporation must secure the aid of law before it can come into existence; it is a creature of the law. A partnership needs no aid from the law before it can exist, but is a creature of the will of the partners, those desiring to establish the firm. Since a written agreement is not necessary, still prudence and good judgment dictate that no partnership ought ever to be formed without putting into writing every term and condition agreed upon by the parties. The form of such an article is similar to the form given under contracts. The agreement in a pure partnership is to bear the losses and share the profits, and, if this be distinctly agreed upon, no trouble can arise. But, unfortunately, men rush into compacts and agreements so hastily, and with such lack of discretion, that there is no end to the vexatious questions that arise out of such ill-considered agreements. It is said by some writers that the basis of all partner- ships is the agreement to share the profits ; by others, that there must be both contribution and sharing of profits. Those who have the latter view, say: "Without contri- bution the alleged partner can not be said to do business ; unless he shares the profits the business is not carried on for his account. Contributions without a share in the profits is a simple gift to the firm, by which firm creditors are enriched, not damaged. Sharing the profits without contribution is a gift by the firm to the beneficiary." 102 ELEMENTS OF LA W. Either sharing of profits, or making contribution, is prima facie evidence of partnership. They are good criterions but not the sole criterions. By the term profit, we mean the excess of the income of returns of the firm over its advances or expenditures. By loss, the excess of advances over returns. Gross profit includes all income. " Profit" is generally applied in the sense of net-profit, i. e., the whole income less all expenses. It is not essential to a partnership that there be a partnership fund. A partnership can as readily exist, and many do, that have only joint skill or labor. The usual forms of agreement are as follows : First. Each partner to contribute, and to bear the loss and to divide the profits. Second. Each to contribute, and divide the profits, but certain ones, only, to bear the losses. For example : A, B and C agree that each shall contribute and each be entitled to a share in the profits, but A, alone, ie to bear all the losses. Suppose A to be a capitalist, while B and C are poor men, who could only contribute labor and skill. This is a perfectly fair and honest rule of law, and a strong encouragement to the poor artisan possessing labor or skill, or both, to enter into a partner- ship relation. He runs no risk but the loss of time and labor. Third. Each to contribute and share the profits but to say nothing about bearing the losses. In such a case, the presumption is that the losses are to be borne. in the same proportion as the profits. If nothing be said about the ratio in which the profits are to be divided, the law will give each partner an equal share, no regard being had to the ratio of contribution. The skill of any partner, who contributes nothing to the fund, may well be entitled to as large a share of the profits as another partner who contributes all the fund. PARTNERSHIP. 103 Kinds of Partners. A member of a partnership is called a partner. Various names have been given to partners, to express certain relations they sustain to the firm, thereby avoiding unnecessary circumlocution. 1. Ostensible Partners are those whose names appear to the world, the public, as partners, and who, in reality, are partners. 2. Nominal Partners are those whose names are held out to the world as partners, but who have no interest in the firm or business. Their liability is the same as that of an ostensible partner. 3. Dormant Partners are those who are not pub- licly known as partners, but are, in fact, partners. They are sometimes styled unknown or secret partners. When they become known, they are under the same liabilities as an ostensible partner. Some writers make dormant and silent partners synonymous. 4. Retired Partners are those who, on dissolution of a firm, have ceased to be members of it. They still remain liable upon past transactions not liquidated, and may become liable in consequence of subsequent transac- tions made by old customers not notified of the dissolu- tion. 5. Surviving Partners. If a member of a part- nership dies the others are called surviving partners. It is the duty of surviving partners to settle up the partnership business. 6. Incoming Partners are those who enter a firm at some subsequent time, but not at its formation. They become liable for all the subsequent transactions of the firm, but not for those contracted and existing at the time of entering, unless they expressly agree to become liable. 7. Special Partners are those who contribute cash capital in a limited partnership. They are not responsible beyond the amount contributed. 104 ELEMENTS OF LA W. 8. There is another class of partners who are known by the title of Partners as to Third Persons. Such a partner is not a member of the firm. He does not stand in the relation of a partner to the other members of the firm, but is looked upon as, and held to be, a partner only by third persons. This relation arises out of the fact that some third person was led to give credit to the firm because of some act or words of the person sought to be held as a partner, which act he had no right to do, or words no right to use, unless he was actually a partner of the firm. It will be seen that to constitute a person such a partner the following things must concur : ' 1. The act must be done by the party sought to be held as a partner or by some one else with his consent. 2. The act of holding himself out as a partner must be known to the party seeking to hold him responsible. If the third person did not know of the holding out he could not have given any credit to the former, on the ground that the party sought to be held was a partner, and that he had been led to give the credit because he , thought him a partner. It would be manifest injustice to hold one liable as a partner unless he does the act himself, or knows it to be done in his name, and likewise unjust to permit anyone to take advantage of such an act who did not know of it and who gave no credit on the faith of it. The same rule applies to the language used that will constitute one a partner to such as rely upon it and to whom it was spoken. The reason for holding such a person liable as a partner is: That no one shall be permitted, by word or act, to induce another to give credit to a firm, thinking the per- son so speaking or acting was a member thereof, and then, when the person so misled seeks to hold him liable, to set up that he is not a member of the firm. PARTNERSHIP. ]05 The law makes every man responsible for his words and actions. If it did not, credit would soon be destroyed and commerce come to ruin. Who may be Partners. All persons who have the legal capacity to make other contracts may enter into that of partnership. An alien friend, but not an alien enemy, can become a partner. There is said to be no general principle of law to prevent a corporation becoming a partner if it be so provided in its constitution, but a corporation cannot law- fully employ its funds for purposes not authorized by its charter. The old common law would not permit a married woman to become a partner, but that has now passed away in the United States. At least in most of the States a married woman can contract the same as if she were single. Two or more firms may be partners in one joint firm. The contract of an infant is governed in the law of part- nership by the rules laid down in the chapter on contracts where reference is made to the capacity of infants to con- tract. The same rule applies to lunatics as is spoken of under contracts. Tlie Poiirer of Partners. The law does not look upon the firm as a Separate thing or artificial person, as it does a corporation. ' In a firm the law looks to individual members composing it, while in a corporation the law sees not the persons forming the corporation, but the corpora- tion existing separate and distinct from those composing it. Hence, a corporation is styled an artificial person. In partnership the partners do business in their unqualified capacity of men, without special privilege or exemption. But if they were not associated together as a partnership, the acts and contracts of one of them could in no way affect or be binding on the others, and it is this result — to be able to act and contract so as to affect the others — that is termed the poiirer of a partner. This power is derived 106 ELEMENTS 0E_ LA W. solely from entering into the partnership relation, and it becomes highly important, then, that we know what is the foundation and extent of this power. It is not perfectly agreed what is the true foundation of the authority or power of one partner to bind his co- partners. Some derive the authority from the assumed mutual relation of agency — that is, when A and B enter into a partnership, A thereby becomes B's agent to bind him in all business relating to the firm, and B likewise becomes the agent of A with the same power. Others say the power comes from his being a co-partner and that the agency is merely an incident. Let the source of the power be what it may, the rule of law is perfectly clear and well settled ; that, in all business relating to the firm, each partner possesses the power to man- age the ordinary business of the firm, and, in so managing or transacting the business, to bind every other partner, whether they be ostensible, dormant, actual or nominal. On the other hand, acts of a partner wholly unconnected with the business of the partnership are in no zvise bifiding on the other partners, for, being unconnected with the business of the firm, he could neither claim to be an agent nor a co-partner. The rule would not be difficult of application were it not for the fact that many acts of a partner may seem, at one time and in one firm and under given circumstances, necessary to carry on the business of the firm in the ordi- nary way, while at another time and in another firm, or the same firm, and under different or the same circum- stances, a like act may not seem necessary to carry on the business in the ordinary way. A few of the more usual acts that may create a doubt as to the power of a partner to do or not to do them will be given. The power of a partner to bind the firm by submitting any of its affairs to arbitration is disputed by some courts PARTNERSHIP. 107 and affirmed by others. Those which deny the power say it is not an act necessary to carry on the business in the ordinary way. Likewise a difference of opinion* exists as to the power of one partner to make a complete assignment for the benefit of creditors without the knowledge or con- sent of his co-partners. There is no doubt but that one partner may assign a part of the firm property to secure a debt of the firm. This arises, it is said, from the right of a partner to dis- pose of the property of the firm. If the power to assign depart exists on the ground of the power to dispose of or sell the property, why not the power to assign all? And so some hold. But a strong point is lost sight of by con- fusing the right to sell or dispose of the property, which is one of the things directly contemplated when the firm was formed, and the power to assign, which was not con- templated as one of the things necessary to be done. The right and power to sell is necessary and usual; the assignment may or may not be necessary, and, if it is, it is not usual and necessary to carry on business, but the opposite, unusual and destructive of all business. One partner may draw, or accept and indorse, bills and notes in the name and for the use of the firm. But this must be for purposes within the scope of the partnership business. The power to borrow money by one partner on the credit of the firm ought not to be used unless it becomes necessary to carry on the business in the usual way and no time can be spared to secure the assent of the other partners. If possible to avoid so doing, no partner should risk the credit of the firm without first noti- fying the other partners. A partner has the power to sell his interest in the firm, but his vendee has no right or power to enter the firm or control its affairs unless the other partners consent to his entering the firm. It is a cardinal rule in partnership that it must be voluntary, and, therefore, no partner and no 108 ELEMENTS OF LA W. majority of partners can introduce a new member without the consent of the others. The sale by one partner of his inter- est worlA a dissolution of the partnership, which can be renewed only by the agreement of them all. The vendee has the right to the vendor's share of the surplus after a settlement of the firm business, but he can take no part in settHng up the business of the firm. That is to be done by the other members of the firm. Any partner has the power to receive debts due the firm, and payment to him by the debtor extinguishes the claim ; but one partner can not use the partnership funds to pay his own debts without the express or implied con- sent of his co-partners. One of the most vexed questions as to the power of partners is, What power has a majority over the minority to bind them against their will? A time will come in the affairs of every partnership when the opinion of a minority will be adverse to that of the majority, and, if no provision is made in the articles of co-partnership as to how such a state of affairs shall be settled, there ought to be some established rule of law to govern it. Unluckily, at this point disagreement is again found among the decisions of the courts ; however, the weight of authority seems to be in favor of the power of a majority of a firm, acting in good faith, to bind the minority in all the ordinary trans- actions of the firm business. It is evident that this is a dangerous power, and the courts view it with a jealous eye. They will not permit a majority to change the kind of business transacted by the firm nor engage it in transactions for which it was never intended. A majority possess no power to change any of the articles of agreement. If such a power was possessed, then the free will of the minority would be destroyed. A majority, if it be composed of honest and conscientious men, will do no act but that which proceeds from the most entire good faith. PARTNERSHIP. 109 In mercantile firms the object of the business is to sell goods for gain. Hence, any one partner possessing the power to sell a part, likewise possesses the power to sell the entire stock, if the sale be free from fraud on the part of the purchaser. It makes no difference as to the validity of the sale, if the partner, by the sale, intended to defraud his co-partners; so long as the pur- chaser is not guilty of the fraud, the sale is good. These are some of the more important powers of partners arising out of the relation of partnership. So long as good - will exists among the partners, and they really desire to further the ends of the firm, they will be slow to do any doubtful act, or exercise any extra- ordinary powers, without first consulting the other members of the firm and securing their consent. Liabilities of Partners. Under this head the following rules may be laid down as being very generally established. Rule First. An act, necessary for the carrying on of the partnership business in the ordinary way, done by one partner on behalf of the firm and in good faith, will bind the other partners. Rule Second. An admission, representation, or acknowledgment by one partner, concerning partnership transactions, is prima facie evidence against the other partners. It is not necessarily conclusive evidence. Rule Third. No agreement between partners them- selves can limit or prevent their ordinary responsibilities to third persons who deal with them, unless such persons are made acquainted with the terms of the agreement between the partners and assent to it. The agreement will be binding as between the partners themselves. The rule only applies to third parties. Rule Fourth. Each partner is liable to pay the whole partnership debts. 110 ELEMENTS OF LAW. As between the partners themselves, we have seen that they may agree that' this liability must be borne by certain ones of them only. Nevertheless, if such an agreement be made, the ones exempted will be liable to third persons, but then they. can demand the indemnity from the mem- bers who were to bear the loss. We have seen also, that an incoming partner is not liable for the debts of the firm incurred before he became a member, unless he assents thereto, but that retiring partners remain liable for out- standing debts at the time they leave the firm, and new ones, contracted after they have left the firm, if they have not given proper notice. If a partner, using his best judgment and acting fairly for the best interests of the firm, incurs a loss, he is not hable to make good such loss to the firm. Rights and Duties of Partners. Anyone having a proper conception of the relation of partnership, how the temporal prosperity of one partner is completely placed within the power of the other, will see, at a glance, that each partner has a right to demand and, reason to &yi- ■pecX. the iiiviost good faitk, teasonable diligence and skill, and the exercise of sound judgment and discretion, from each of the other partners, and that it is their duty to render the same. Each partner, has, likewise, the right to demand that the others will not engage in a business that will be detri- mental to the firm, that will deprive the partnership of a portion of their time, capital, labor or skill, and that they will make no use of the partnership stock for their own private benefit. It is the duty of each partner, as well as the business- like way, to keep an accurate account of all the dealings of the firm, ready for inspection at any reasonable time, thereby giving the other partners an opportunity of seeing that the business is being carried on for the benefit of the firm. PARTNERSHIP. Ill No one is worthy of being a partner who is not willing to give an accounting of the firm business at certain stated times. If strict settlement and closer scrutiny of the books were more generally made by partners, it is thought there would be fewer defalcations, and less opportunity for dishonest partners to perfect their act of villainy. Long association and confidence ought not to be permitted to destroy prudence. Honesty shrinks not from inspection, but rather courts the light of day; she deals justly and demands the same of others. How a Partnership is Terminated. After a partnership has one been formed, there are various ways in which it may be terminated. It may be provided in the articles of co-partnership when and how it is to be ter- minated. If such a provision is mjade, and such should always be stated, its terms must be followed in winding up the affairs of the firm. Where the time has been fixed when the partnership is to cease it may be terminated sooner by the agreement of all the partners. If, however, when the time that was fixed when the firm should cease arrives, the firm contin- ues to do business, without any distinct agreement as to time, it will then become a partnership at will. In a partnership at will, any partner, acting in good faith, can put an end to it at any time. It is sometimes provided that the firm is not to be dissolved but by the agreement of a majority; in such a case, the minority can effect a dissolution. A partnership created for a single transaction or purpose ceases, of course, on the comple- tion of the transaction or purpose. But, suppose the partners insert in the articles of agree- ment, that the partnership is formed for a certain period of time, can the firm be dissolved, by any process, prior to the expiration of the time fixed? It can, and courts of equity have much employment in this line. It is, of course, the exercise of a very important power for a court 112 ELEMENTS OF LA W. to decree that what has been agreed upon, among part- ners, shall not be fully performed. Yet justice demands the exercise of such power, and, in the exercise of it, that sound judgment and discretion be used by the courts. The cases where courts will lend their aid to set aside the terms of the agreement and dissolve the firm, may be reduced to three classes, viz : First. The impracticability of the undertaking. Second. Insanity, or other similar incapacity, of any co-partner. Third. Misconduct of the partners. A few observations will be made on each of these classes, and, first of the impracticability of the undertaking. The judgment of men is fallible. What seems feasible to-day, may become impossible to-morrow. If it be made evident to the court, that a given enter- prise can not be carried on, in the manner contemplated by the parties when they entered into the partnership, either from the nature of the difficulties attending its prose- cution or inherent in it ; or from one or more of the partners becoming unable to perform their part of the undertaking, it will dissolve the partnership. In the second case. The sanity of the partner, or his general character, was one of the chief elements why the partnership was formed. Without these, it is safe to say, the firm would not have been established. To compel a continuance of the relation, after the object of its creation has failed, would be a grievous burden to bear, and one that is plainly unjust. Hence the court grants relief. It is not an absolute necessity to dissolve the firm simply because one of the partners becomes insane. Insanity in itself does not work a dissolution, but is only a ground for granting a dissolution by the court of equity when the other partner or partners do not desire to continue the re- lation after a member has become incapacitated to act. PARTNERSHIP. 113 The insanity must be found to exist by an inquisition of lunacy, and be declared incurable before the court will issue the decree of dissolution. Temporary insanity is not sufficient. The dissolution dates from the time of issuing the decree of the court, and not from any prior date. For until he has been found insane he will be presumed to be sane. But insanity is not the only cause for which a court of equity will decree a dissolution. It will do so for other inveterate or incurable infirmities, such as, palsy and the like, which seize upon a partner and render him wholly incompetent to act, where his personal labor and skill were to be his share of the contribution. In the third class of cases that a court of equity recog- nizes, we find, from its very nature, that no general rule can be laid down. What will amount to misconduct in any given case can only be answered when all the facts and circumstances are known. Hence, every case must, to some degree, stand alone. The following statement of Hon. Stanley Matthews covers the ground in a few words. He says: "The misconduct of partners, where it is gross, such as habitual intoxication, gross extravagance, rash and reckless speculation, or abuse of authority, by habitually dealing contrary to the partnership articles or outside the scope of the partnership business, or where it consists in a want of good faith, or in refusal to comply with some stip- ulation of the partnership agreement, of vital importance to the rights and interests of the other partners, is a good and sufficient cause for a court of equity to decree a disso- lution of the firm. But it should be remembered that a partner can not, by misconducting himself, and thereby rendering it impossible for his co-partners to act in har- mony with him, obtain a dissolution on the ground of the impossibility created by himself. " Besides the ways mentioned above, a partnership is dissolved by the death of any one partner. Such dissolu- 114 ELEMENTS OF LA U> . tion operates from the time of the death. There may be a stipulation in the articles of agreement that death shall not be permitted to work a dissolution as to the other, or that an heir of the deceased partner shall take his place. An act of bankruptcy or insolvency of one partner will work a dissolution; likewise a sale or assignment of a partner's interest in the firm. When a partner retires from a firm and thereby works a dissolution, if the other partners con- tinue to do business as a new firm under the old name, it becomes of the highest importance to the retiring partner, that notice of his retirement from the firm be given to all the old customers of the firm, or else, if they deal with the firm not knowing that he has left it, he will be held liable to them for all debts that the new firm may incur. He should give direct and specific notice of his withdrawal by letter to every one of his old customers, and customary notice by advertisement to inform new customers who may desire to deal with the firm thinking he was still a member. Effect of Dissolution. The direct effect of disso- lution, as between the partners, is to terminate all transac- tions between them as partners, except for the purpose of taking a general account and winding up the concern. As to their persons, the effect of a dissolution is to absolve the partners from all liability for future transactions in the firm name, but not for past transactions. The power of one partner to bind the others rests on necessity to carry on the business of the firm but when the firm ceases, the necessity must likewise cease, and the partner possesses no right or power to bind his former part- ner. They are now no longer partners but simply co- owners of the partnership property, and, as such co-own- ers, have no right or power of agency to act for the other co-owners. Each partner possesses an equal right to settle up the business of the firm ; but it is usual, in large partnerships, to select one or more of the partners, to whom is delegated PARTNERSHIP. 115 the authority to adjust the affairs of the firm by collecting its debts and disposing of its property. It is said that the power of the partners subsists for many purposes after dissolution. Among these a.rQ— first, the completion of all the unfinished engagements of the partnership; second, the conversion of all the property, means, and assets of the partnership, existing at the time of the dissolution, for the benefit of those who were part- ners, according to their respective shares ; third, the appli- cation of the partnership fund, to the payment of the part- nership debts. If the firm is insolvent, and, likewise, the partners, a nice question arises as to the right of the respective cred- itors of the firm and the creditors of the individual partners. To illustrate: A. B. and C. form a partnership. The firm becomes insolvent. Each of the members are per- sonally insolvent. Now suppose the firm assets amount to ^S,ooo; their liabilities to ;^io,ooo. The assets of the firm will pay fifty cents on the dollar. Suppose, again, each partner owes ^8,000, and has private property to the value of ^2,000. They can pay only twenty-five cents on the dollar of their indebtedness. The question now arises, can the private creditors of the members of the firm come in equally with the creditors of the firm and get a share of the firm assets? Or will the private creditors have to be content with recourse to the private property, and the firm creditors to that of the firm? The court of equity has laid down this rule : Where there exist both private and firm creditors, the firm creditors are to be paid out of the firm assets, and the private creditors out of the personal assets. If there are more firm assets than liabilities, as soon as these liabilities are met the private creditor has recourse to the firm assets. If there is no private fund for the payment of the personal creditor, he can not come in on the firm assets, while, if there are no firm assets, the firm creditors come, in on an equal footing with the personal creditors 116 ELEMENTS OF LA W. for the private fund. A very slight firm fund will exclude this right of the firm creditors to a share in the private fund. This rule is not followed by all courts, and it admits of various modifications. It has been called "The Rule of Convenience." This leads us to speak next of the partnership property. Partnership Property. Partners are said to be joint tenants in all the personal property of the firm. By this is meant, that each partner is the sole owner of the firm property to such a degree that he has the power to dispose of the whole of it at any time . He, of course, must render an account, to the other partners, of the price that he received for the goods sold. This rule of law is necessary because no one can sell what does not belong to him. Real estate, held by the firm, can not be sold without the consent of all. The student must not confuse the ownership of firm prop- erty with that of co-ownership. Co-ownership exists where two or more persons purchase a horse, each owning a share or interest in him. Now, if they had purchased the horse, with the agreement that he was to be sold, and the profits divided, or the loss borne by them jointly, it would no longer be a co-pwnership, but they would be partners, and, hence joint tenants. The difference between such ownership will be brought out more clearly by contrasting the two as follows: 1. Co-ownership may be created either by descent, as where a man dies and leaves a horse to two of his children, or, by agreement, as in the case of a purchase of a horse by two or more persons. Partnership is always created by agreement ; never by descent. 2. Co-ownership does not necessarily involve a divisioi} of the profits and losses ; a partnership does. PAR TNERSHIP. 117 3. One co-owner can, at his will and without the consent of the others, sell his interest in the property to a stranger diXiA put him in his place, in relation to the other co-owners; in partnership one partner can not do so without the con- sent of the other co-partners. 4. One co-owner is not, simply because of the relation, an agent, express or implied, of the other co-owners. A partner is an agent of his co-partners concerning all busi- ness relating to the partnership, and such agency arises solely out of the firm relation. It does not depend upon agreement or appointment. 5. A co-owner of land can get a partition of it at once; that is, he can get the court to decree that each co-owner shall have his interest in the land set apart by itself; a partner can not do this. He has a right to a division, only after the debts of the firm have all been paid. This, I think, will make perfectly clear the great differ- ence between the two kinds of ownership. Partners have, presumptively, the same interest in the stock that they have in the profits. Their shares are pre- sumed to be equal within the capital and profits. Partner- ship property consists of the original stock and the addition made to it in the course of trade. FormSi A few forms of the more common and necessary papers relating to the duties and obligations of partners, and to the formation and dissolution of the firm will be appended, as being both useful and instructive. I. ARTICLES OF CO-PARTNERSHIP. This agreevtent, entered into this 15th day of April, 1886, between H. P. Wagner, of Ada, Ohio, and S. B. Wagner, of Ada, Ohio, wit- nesseth : 1. That they, the said H. P. Wagner, and S. B. Wagner, will hecome and remain co- 118 ELEMENTS OF LAW. partners in the business of Booh Sellers and Stationers for the term of five years, from the date of these -presents, and that the ftrm name of the said co-partnership shall lie " Wagner Brothers," and that the said business shall he carried on at Ada, Ohio, or elseivhere, as from time to time may he agreed. 2. That, if either partner shall desire that the said co-partnership shall terminate at a period sooner than that fixed in section one of these presents, said partner shall give not less than three months' notice to the other partner. In such case upon the end of the said three months the said co-partnership shall terminate. 3. That the capital to he used in the said business shall consist of dollars, to he brought in hy the said partners, in equal shares, on or before the 20th day of April, 1886, next, and that the partners shall be entitled to the profits in equal shares, hut that the losses shall he borne, two-thirds hy the said H. P. Wagner, and one-third by the said S. B. Wagner. In witness whereof, the said parties have hereunto subscribed their names the day and year first above ivritten. (Signed.) H. P. WAGNER. S. B. WAGNER. The partners should set out in separate sections every point of the agreement, and put everything agreed upon in writing. How and when rent is to be paid; PARTNERSHIP. 119 the taxes; who is to buy the stock; how much and when each partner can draw money from the firm fund ; whether either partner can engage in other business, if so, what, and how much time he must devote to each; whether he can hire or dismiss clerks without consulting the other; how the book account shall be kept ; how often an invoice of stock shall be taken ; and so on, till everything is put into writing. The student can easily adopt the form for a Limited Partnership from the directions given in section third concerning special partners. Bear in mind that, in all such Limited Partnerships, in writing the name of the firm it should be followed by the word " Limited." Thus: Wagner Brothers, Limited. The object of this is to give the public knowledge that the firm contains special partners who are not liable for the whole partner- ship debts. 2. Form of notice from one partner to another, dissolving a partnership: Jldcb, Ohio, July Jfth, 1886. Sir : I hereby give you notice that I shall -put an end to the -partnership between us on the first day of November next, in pursuance of article second of co-partnership between us. To H. P. W. S. B. W. ' 3- ■ NOTICE TO THE PUBLIC OF DISSOLUTION. DISSOLUTION OF PARTNERSHIP. The partnership between S. P. W., and S. B. W., in the village of Ada, Ohio, expires on the first day of Movember next, and is dissolved from that date. Both partners are 120 ELEMENTS OF LA W. authorized to use the name of the firm in making settlement. (Signed.) H. P. W. S. B. W. 4- Circular notice to customers when one partner retires and a new one comes in : Ada, Ohio, August 1st, 1886. Sir: Will you please take notice that the partnership heretofore subsisting between the undersigned, and carried on at Ada, Ohio, in the name of Wagner Brothers, was dis- solved this day hy the retirement of Mr. S. P. Wagner. The business will he conducted hereafter by S. B. Wagner, in connection with F. M. Dotson, who have entered into a partnership for that purpose. The liabilities of the old firm will he settled by Messrs. Wagner ^ Dotson, and all persons indebted will make payment to them. (Signed.) H. P. WAGNER. S. B. WAGNER. To Messrs. X. & Y. NEGOTIABLE PAPER, OR BILLS AND NOTES. 121 CHAPTER V. NEGOTIABLE PAPER, OR BILLS AND NOTES. Introduction and Definitions. One of the an- cient doctrines of the common law was that no contract could be assigned. For a contract gave to the parties to it, a right to sue in the case of non-performance. If it was permitted, one party to a contract to assign it to some third party, it would encourage litigation, and often put the weak into the power of the strong; often make a per- son be a debtor to one who was his personal enemy. However plausible such reasoning may seem, it will never do to permit such a rule to exist and still hope to see busi- ness prosper. Civilization is dependent on commerce and commerce is essentially dependent on credit. The credit system to be effective and come up to the full measure of expectation, must possess the right to transfer credit from one to another. In time to meet this demand of com- merce, the law permitted contracts to be assigned, but gave to the party to whom the goods were assigned, term- ed the assignee, no more right and power to sue than was possessed by the one assigning, termed assignor. So that if A was indebted to B, and B assigned that indebtedness to C, A could, when sued by C, set up any defense to the payment of the note that he could have set up had B sued him. But even this restriction was found to be a burden to commerce and a weight that must be cast off. It was then determined that certain kinds of contracts of indebt- edness might possess the power of being assigned before they were due, and that, if they were so assigned, the assignee could sue in his own name and the party owing the debt could not set up any defense against him that he could have set up against the assignor unless there were some defense, especially permitted by law to be set up, which we will consider in the proper place. This power which was given to these certain contracts is termed nego- tiability; the paper on which the contract is written, is 122 ELEMENTS OF LA W. termed an instrument; hence our subject, Negotiable Instruments. The student must at the very outset get a clear distinc- tion between assignment and negotiability. This may be done best by an example: Suppose A owes B two debts, one of them witnessed by a non-negotiable instru- ment, the other by a negotiable one. B sells the non- negotiable instrument to C, the negotiable one to D. Suppose the consideration moving from B to A for which these instruments were given failed, of which failure neither C nor D knew, at the time they purchased from B the instruments. The instruments fall due. Each sue A on their contract. He will have to pay the full face value to D but can resist paying anything to C. Why? Be- cause C had purchased a non-negotiable instrument, and D a negotiable one. In the non-negotiable instrument C took by assignment only the right possessed by B, nothing more. In the negotiable instrument, D took all the rights of B and very much more. In a transfer by negotiation, the full face value of the instrument, free from any ground of defense that may exist between the first parties to it, passes to the one buying it, while by assignment, only the rights of the assignee pass ; it may carry the full face value, or it may not. It is very important then to be able to tell at sight a negotiable from a non-negotiable instrument. There are certain marks that distinguish them. We will now pro- ceed to consider these marks. The use of the word in- strument at once cuts off from our consideration all con- tracts of indebtedness not reduced to writing. Again, as the law of negotiability arose out of the necessities of com- merce, we will dismiss all contracts of indebtedness in wri- ting that do not relate to commerce. For example: All contracts under seal, and recognizances and the like. NEGOTIABLE PAPER, OR BILLS AND NOTES. 123 This leads us to the question, what names are given to contracts of^ indebtedness in writing which relate to com- merce i The most common ones are Bills of Exchange, Promissory Notes, Drafts, Checks, Bonds, Coupon Bonds and Bank Notes. There are many others which possess the quaility of negotiability, but we can not mention them here. In this work we shall use the word bill for Bill of Exchange, and note, for Promissory Note. We shall treat of them together, because the rules relating to each one are so similar that it can be done more easily that way than to treat of them separately. Where any marked distinction exists, it will be mentioned. The same gen- eral rules as herein laid down will apply to all kinds of negotiable instruments. The student can not hope to make any progress in this chapter, nor to get any benefit out of its study, if he neglects to master completely the names of the parties to each kind of instrument, the defini- tion of the instruments given, and the terms to be made use of in our discussion. Suppose A, living in Ada, owes a sum of money to B, who lives in Chicago. The money is due and A is ready to pay it. On the streets of Chicago B meets C, who says he is going to Ada. B tells him that A, living at Ada, owes him a sum of money and that it is due. C says: " I will give you that amount of money if you give me an order on A directing him to pay the money to me instead of you." B is well pleased: He receives the money of C, and gives him an order on A directing A to pay the money to C. C comes to Ada. Seeing A, he presents him the order from B directing him to pay the money to C. A examines the order and recognizes the handwriting of B, and, being satisfied the order is genuine, he pays the money to C. What do we term this whole iransaciion? An exchange. What do we term the order given by B to C on A? A bill of exchange. Hence the definition of a bill of exchange ; it is an open letter from 124 ELEMENTS OF LA W. one person to another, directing hiin to pay a certain sum of money specified to a third party named therein., The word " open " is used to distinctly show that no sealed instru- ment can be termed a bill of exchange. The term " sealed " is used in reference to a seal stamped on paper, and not in the sense in which we say, " He sealed a letter." From the example given it is plain that there can be no bill without three parties. Each of these parties bears a distinct name by which all persons whose names appear on a bill in that connection are known. In the example given B drew the bill, and so he is teimed the draiver; it was drawn on A, and he is termed the draivee, and the money was directed to be paid to C, who is termed the payee. FORM OF A COMMON BILL OF EXCHANGE. $600. Ada, Ohio, May 1st, 1886. On demand, pay to J. J. Jelley, or order. Five Hundred Dollars. WAGNER BROTHERS. To Citizens' Bank, Chicago, III. To a promissory note there are but two parties, namely, a maker and a payee. COMMON FORM. $500. Ada, Ohio, May 1st, 1886. One year after date I promise to pay to Charles S. Ashhrook, or order, Five Hundred Dollars. Interest at eight per cent, per annum. JOHN MAGLOTT. Maglott is termed the "maker" and Ashbrook the "paye^." The term payee is common to both a bill and a note. The terms made use of so far are drawer, drawee, maker and payee, and may be tersely defined as follows: NEGOTIABLE PAPER, OR BILLS AND NOTES. 125 A draiver is one who draws a bill of exchange. A drawee is one on whom a bill of exchange is drawn. A payee is one to tvhom a sum of money is directed to be paid by a bill of exchange or promissory note. A maker is one who is to pay a promissory note, or, in other words, one who makes or issues a promissory note. Not all notes and bills are negotiable. Only the note or bill that contains the words " or order," " or bearer," "or assigns " is negotiable. The last set of words ' ' or assigns " are seldom used. They have the same import in general as " or order, " and what is said of "or order" can be taken as said of "or assigns." Sometimes the phrase "or holder " is found, and, when so used, it is equivalent to "or bearer." So what is said of this phrase can be applied to "or holder." We have now sufficiently described a negotiable instrument so that we will be able to recognize one when we see it. Yet, that the student may be perfectly informed by example as well as descrip- tion, an example of each class will be given, so that he may compare them and see the difference. I. FORM OF NON-NEGOTIABLE NOTE. $100. Ada, Ohio, May 1st, 1886. One year after date I promise to pay C. H. Thomas One Hundred Dollars. Interest at six per cent. G. I. RANDALL. 2. FORM OF NEGOTIABLE NOTE. $100. Ada, Ohio, May 1st, 1886. One year after date I prornise to pay H. E. Ward, or order, One Hundred Dollars. Inter- est at six per cent. ^ W. E. PUTT. Elements of Bills and Notes. Besides the marks of negotiability, it is necessary to get a clear conception of the requisites of a good bill and note. I. Requisites of a Bill. It will not be amiss, at this place, to add the more complete and specific defi- nition of a bill as it is defined by Mr. Daniel. "A bill of exchange is an open letter addressed by one person to another directing him, in effect, to pay absolutely and at all events, a certain sum of money therein named, to a third person, or to any other to whom that third person may order to be paid; or it may be payable to the bearer or to the drawer himself." The first requisite is that the bill be an open letter. This phrase is sufficiently explained already. The second requisite is that the direction to pay must be certain. The theory upon which a bill is based is, that the drawee has money belonging to the drawer, and that • the drawer is ordering the drawee to pay it to some one instead of to the drawer. This then puts a bill in the light of demanding a right, not the mere asking of a favor, and therefore requests or supplication to pay the money, or even extending an authority to pay the money, do not amount to a bill. Example; "Mr. Jones, please let the bearer have fifty-five dollars and place it to my account, and you will much oblige your humble servant, William Smith," is not a bill. The third requisite is that the order to pay must be absolute, not conditional. If there is any condition attached to the payment, as, if a certain ship arrives, or a certain act is done, or a certain person is married, it will destroy its negotiable quality. The time of payment must be expressed. It must be a time certain, or that can be made certain, as, one year after the death of A. A is sure to die at some time and then the note is due one year from that date, which renders the time of payment capable of being made certain. But if it was made NEGOTIABLE PAPER, OR BILLS AND NOTES. 127 payable "when, or so many days after, A shall come of age," the instrument is not a good bill, because the time is not certain, neither can it be made certain. For A might die before he is of age, then the bill will never fall due because he never will be of age, and the bill is not to be paid until A comes of age. The only safe plan is to set the time of payment absolutely and accept none but such as are so drawn. The fourth requisite is that the amount to be paid must be certain. The addition of any words that qualify the amount in any way will be fatal to its negotiability. The fifth requisite is that the payment must be in money. This is an indispensable requisite. If anything else is mentioned except money it is not a good bill. If ordered to be paid "in currency" it is not good, as the phrase "in currency" includes all varieties of circulating medium. Certain phrases have been con- strued by some of the courts to mean the same as money, but it is a dangerous thing to take a bill and have to rely on the construction of a court before you know whether it is negotiable or not. See that the bill is payable always in money and you are safe in taking it as negotiable. It is not enough that it is to be paid in money as the medium, but it must be only for the payment of money. In the last place, the bill must be delivered to the p3.yee. 2. Requisites of a Promissory Note. A fuller and more complete definition of a promissory note will be given so that the student may have a more perfect notion of the term when he hears it used. The definition selected is that of Judge Story: " A prom- issory note may be defined to be a written engagement by one person to pay to another person, therein named, absolutely and unconditionally, a certain sum of money at a time specified therein." It will be observed that he defines a promissory note but does not include the 128 ELEMENTS OF LA W. idea of negotiability. Mr. Daniel defines a note, so as to include negotiability thus : "A promissory note, or note of hand as it is often called, is an open promise in writing by one person to pay another person therein named, or to his order, or to bearer, a specified sum of money absolutely and at all events." The requisites of a note in all other respects are the same as are given of a bill. I have reserved a full statement, on the requisite of delivery, for this place rather than under bills, as the use of notes is much more common than that of bills among the masses. Bills are used more exclusively in business circles. A note is said to have no legal inception or beginning until it has been delivered. So long as it remains in the possession of the maker he can change his mind, alter the note or even destroy it. If any one steals it, it is not good, lacking the legal inception. To hand a note to an agent with instruction to deliver it, does not amount to a delivery because the authority to deliver may be revoked before the act is done. If the maker sign the note and dies before delivering it, it becomes void. Even if he directs one to deliver it after he dies, it is not good, nor binding on his estate, unless the directions to deliver be given in a will as a devise. A delivery may be constructive as well as actual, as, A makes a note in favor of B and gives it into the possession of C; afterwards he directs C to hold the note subject to the order and control of B. Parties to Negotiable Instruments. There may be two classes of parties to a negotiable instrument. The first-class are termed primary or original parties, the second-class, secondary or subsequent parties. These distinctions are very important, and in the study of the subsequent sections of this chapter, must be distinctly borne in mind. I. Original Parties. Those whose names appear NEGOTIABLE PAPER, OR BILLS AND NOTES. 129 on the face cf the instrument, and who are interested in the paper when it is made, are termed original parties. In a bill, the drawer, drawee or acceptor, and payee, are the original parties. In a note the maker and payee are the original parties. 2. Subsequent Parties. These are the parties who become interested in the paper after it has been made. The object of a negotiable instrument is that it may pass from one person to another for some time before it is to be paid. The usual means by which this is effected is indorsement. The names which appear on an instrument by an indorsement are termed subsequent parties. As a rule, not necessarily so, the names of the original parties appear on the face of the instrument, while those of the subsequent parties appear on the back of the instrument. The person whose name appears on a paper by indorsement is called an indorsee. Besides the indorsee's name the other sub- sequent parties, whose names may appear on the paper, are termed guarantor, and surety. Under original parties the student will see the term Acceptor used for the first time, and, that he may understand its use, it will now be defined. When the drawer gives to the payee the bill, it is the duty of the payee to go to the drawee and present the bill to him that he may know to whom and when he is to pay the money of the drawer. When the drawee examines the bill and is satisfied that it is genuine, he agrees to pay the money to the payee at the time named in the bill. So that the payee may have evidence that the drawee so agreed to pay, the drawee writes the word ' ' accepted" across the face of the bill and signs his name. He also puts down the time when he signs. This act of the drawee is called an acceptance, and from that time on the drawee is spoken of as the "acceptor." Under subsequent parties the terms indorsee, surety and 130 ELEMENTS OF LA H . guarantor, were used but not defined. We will now define them. After the payee has possession of the bill or note, and before it becomes due, he stands in need of the money. He goes to a friend and asks him if he will buy the note or bill. The friend is willing to buy, and does so. It then becomes necessary for the payee to transfer the prop- erty in the note to the purchaser. This he can do in one of two ways. If the bill or note is made payable to the payee, "or order," then he must transfer the property in the note by an indorsement, which is done by writing the name of the payee on the back of the note. After he has done so, ^^ payee ceases to be called by that name, and is termed an indorser, the one who purchased the note or bill, and to whom it was assigned is termed the indorsee, and the act by which the change was made, an indorse- ment. The rights and liabilities of indorser and indorsee, as well as the kinds of indorsements will be spoken of in a subsequent section. The terms surety and guarantor are frequently used interchangeably, but this is wrong. When A gives his note to B, and B is not willing to risk the payment on A, alone, A asks C to become his surety. Now what is it that he asks C to do? He asks C to place his name on the paper. C does so, and then the law comes in and says what the responsibility is that C has assumed by so doing. The responsibility is this : If A does not pay the note when it falls due, then C is to pay the note to B. B can sue him without first having to sue A. In other words, C by his act of suretyship agrees to assume the debt of A to be his debt the moment the debt is due and not paid. If he had become a guarantor the responsibility is greatly changed. The responsibility of a guarantor is this : He agrees to warrant that A will pay the note. He does not say that he will do so the moment it falls due, but, at some time, the note will be paid by A, but, if not, then he will pay it. The difference NEGOTIABLE PAPER, OR BILLS AND NOTES. 131 between the two is sometimes expressed thus. A surety says, " I will pay if the principal does not; " the guarantor says, "I will pay if the principal can not." The former assumes the debt as his own when it falls due, but the latter, if he must pay, will pay it as the debt of the principal. Their respective rights and liabilities will be spoken of in a subsequent section. Indorsement. The term indorsement means simply to write one's name on the back of an instrument. Before we enter on a discussion of the subject of indorsement proper, we shall explain the legal difference between the phrase " or order " and "or bearer." It was mentioned above that "or assigns" had the same meaning as "or order," and " or holder " the same as "or bearer." Here- after we shall not mention them more ; they are seldom used. The property in an instrument in which the phrase ' ' or bearer " is used can be transferred from the payee to any- one who may purchase it simply by delivery. The payee hands the paper to the purchaser, and when it falls due he presents it for payment, and the maker or acceptor must pay it to him, because they agreed to pay it to the payee or anyone who might be in possession of it. The maker or acceptor are under no obligation to make any inquiries how the bearer may have come into possession of the paper. It is their duty to pay when it is presented, and if they do so the law will protect them from having to pay it the second time, if the party to whom they paid it was not the owner of it and had no right to present it and collect the money. It will be seen that this is a very dan- gerous kind of paper to possess : If it is lost, and the finder presents it for payment, and the maker or acceptor pays it, not knowing that it has been lost, the owner will have to bear the loss unless he can discover the finder and make him pay over the money to him. The same is true if the note is stolen ; the thief can collect it, and the maker 132 ELEMENTS OF LA W. or acceptor will not be liable to pay it a second time. It is advisable in the majority of cases not to take as payee a bill or note payable to A. B. "or bearer." Quite a different rule applies when the phrase "or order" is used. " Or order" requires something more than mere delivery. It must be indorsed. The maker or acceptor agrees to pay it to the payee, but if he sees fit to direct or order them to pay to some one else they will do so, but not till they receive a written notice to that effect. This notice or order is written on the back of the instrument and signed by the payee, and is what we term an indorsement. Now, if the payee should lose such a bill or note, the finder could not collect it without first securing the order to pay it to him to be written on the back of the instrument. He can not go to the payee and get him to do so, for the payee would keep it. There is only one way for him to secure payment to himself; that is to forge the indorse- ment. If the maker or acceptor pays it to the finder under a forged indorsement, it will be no defense against having to pay it again to the rightful owner. It is the duty of a maker or acceptor of a paper payable to a certain person " or order" to be sure that the indorsement is not forged. The law will not permit the owner of such paper to be cheated out of it by a finder forging an indorsement. Besides, it has been stated that the property to a note can pass out of the owner only by the concurrence of his act and will so to do. Neither of these elements exists in the case given. The same rule applies if the note is stolen and the indorse- ment forged. Enough has been said to show the great difference- between these two expressions and how much safer it is to use the latter in place of the former. We are ready now to speak of the different kinds of indorse- ments. Kinds of Indorsements, i . " Indorsements in Full." In an indorsement in full the payee writes on the back of the instrument: " Pay to B or order. Signed NEGOTIABLE PAPER, OR BILLS AND NOTES. 133 A." It is quite immaterial whether the indorsement be on the back of the instrument or on the face. The back is the usual place, and the custom ought to be followed. A is called the indorser and B the indorsee. Both their names appear in the indorsement. Hence, the definition of a full indorsement may be worded thus : A full indorse- ment is one in which the names of both the indorsee and the indorser appears without any limitation or restriction. The form given is the usual one, but it would be equally as good if it read: " Pay to B. Signed A." The reason is that in the first reading of the face we find it reads "pay to A or order." A, by indorsement, transfers to B all his property in the paper. A part of that property was the right to direct the payment to be made to some one else. That being so, he conveys the same power to B, who has that power independent of the words "or order" being used in the indorsement. An indorsement in full prevents the bill or note from being indorsed by anyone but the indorsee. If B wishes to sell the paper to C, he will write on the back below the indorsement of A: "Pay to C or order. Signed B." Whenever B makes this indorsement, A will be termed the first indorser and B the second indorser. There is no end to the number of indorsements. Each indorsee in turn becomes an indorser, and takes his respective numerical number as third, fourth, and so on. The indorsees are likewise numbered; B would be the first, C the second, and so on. This leads us to introduce another new term, namely, holder, by which is meant anyone who is in legal possession of a negotiable instrument and who can demand payment of the same. Hence, it includes either payee or indorsee. We shall have occasion to make frequent use of the term, and hope the student will become familiar with its meaning. 2. Indorsement in Blanki In an indorsement in blaijk the payee simply writes his name on the back of the instrument thus : "William Smith." The name of the 134 ELEMENTS OF LA W. indotsee does not appear. From looking at the paper you can not tell who is now the owner. As the purchaser has seen fit to take the instrument with a blank indorsement, thereby not giving to the maker or acceptor any clue by which to ascertain who is the true owner, the law places him in the same position as the owner of an instrument made payable to "A. B. or bearer. " As soon as it is indorsed in blank it can be transferred simply by delivery, and requires no further indorsement. The holder of an instrument indorsed in blank can at any time change the blank indorsement into a full indorsement by writing his name above that of the indorser in blank. For example: William Smith signs his name on the back of the instru- ment. Charles Brown does not desire to hold the paper in that form and run the risk of losing it or having it stolen. So he writes " Pay to Charles Brown " above the name of William Smith, whose name ought always to be removed far enough from the top of the paper to permit this. The writing of these words does not change the rights or obligations of the indorser, while they add greater security to that of the indorsee in blank. It is not particular if the indorsement is in blank if you do not intend to retain possession of the instrument, but, if you intend to retain it in your possession for some time, it is advisable to fill it up and make yourself secure against loss or theft. 3. Restrictive Indorsement. It was in the power of the parties, when the paper was made, to have drawn it in a non-negotiable form. It is the will of the payee that governs in this matter. He usually prefers the negotiable form. But after the paper has been put into a negotiable form he may choose to limit the nego- tiability of the instrument so as to permit it to be trans- ferred but once, that is, from himself to another person, but no further. In other words the payee has the power to indorse it to another at will, but he will so NEGOTIABLE PAPER, OR BILLS AND NOTES. 135 indorse it that his indorsee can not indorse it to anyone else. , Such an indorsement is termed ' ' a restrictive in- dorsement." The form is as follows: "Pay to A. B. only," or " Pay to A. B. for my use." In either case A. B. possesses no power to further negotiate the instrument. No one but the payee can so restrict a negotiable instrument. If anyone purchases a note or bill that bears a restrictive indorsement, he can not sue the maker or acceptor upon it, but holds the paper simply as a trustee of the restrict- ive indorsee. If the maker or acceptor pays the money to such a holder, he must keep the money for the restrict- ive indorsee. 4. Indorsement for Collection. Suppose a bill drawn to " B or order." A desires C to collect it for him. The acceptor will not pay it to C unless he is so or- dered. B does not wish to pass the property in the bill or in the money when it is paid to C. So he indorses it thus, " Pay to C for collection," signed B. Anyone can tell at once that B is still the owner of the paper and that C is the holder for collection only. Such an indorsement is termed an indorsement for collection. C has no power to sell the note, and indorsement by him is worthless ex- cept for collection. 5. Qualified Indorsements, or indorsements with- out recourse. This form of indorsement viH be defined here, but the student will not fully understand it until he comes to the section on the duties and liabilities of parties to negotiable instruments. If the holder of a negotiable in- strument desired to limit or qualify his liability as an in- dorser, he has resort to this form of indorsement. It is in this form "Pay to B or order, without recourse," signed A. Such an indorsement is usual and does not destroy the negotiability of the instrument. Neither does the fact of such an indorsement throw on the paper any suspicion that there is some defect in it known to the party. But to get the benefit of such an indorsement the 136 ELEMENTS OF LA W. qualification must expressly appear, it will not be implied. The usual form is the one given, but some holders use the words " at the indorsee's own risk," and in place of the words "without recourse" put the French words " Sans recours." The meaning is the same. 6. Joint Indorsement. If a note or bill be made payable to two or more persons, who are not partners, the transfer of the paper can only be made by all of them signing the indorsements. Such an indorsement is termed a joint indorsement. The reason they all must join is that the right to transfer the instrument is in them all col- lectively, and not in any one individually. In the case of partners each is the owner, in the eye of the law, for the purpose of passing the property in the instrument, and hence only one partner need indorse it. 7. Indorsement Waiving Protest. This kind of indorsement will not be understood until we come to speak of the law of protest, and when the student reaches that section this term will be made plain. That the student may have all the different forms of in- dorsements at his command and for ready use and refer- ence, a table of indorsements will now be given. These will serve for examples, but are by no means the only forms in which they may be made. 1. Indorsements in full. "Pay to-H. W. Ingersoll, or order. "R. L. STARR." . "Pay to C. H. Thomas. "H.E.WARD." 2. Indorsement in blank. " THOMAS M. LEE." 3. Restrictive indorsement " Pay to S. p. Fisher only: "C. H. WORKMAN." NEGOTIABLE PAPER, OR BILLS AND NOTES. 137 > 4. Indorsement for collection. "Pay to B. H. Strohl, for collection. "E. E. HELMS." 5. Qualified indorsement. Pay to J. G. Ames, without recourse. "J. C. BOYD." 6. Joint indorsement. "Pay to Kirk Hoffman." "A. D. FETTERS. "M. E. THRAILKILL." 7. Indorsement waiving protest. Pay to J. E. McKean, waiving protest. "F. M. COSNER." "Pay to J. M. Sarver, Return without protest. "E. E. DRESBACH." 8. Indorsement by an agent. " Pay to M. R. Simpson- "A. S. McKITRICK." Per LEE SEELEY, Agent. Duties and Iiiabilities of Parties to Xegoti- able Instrnments. In a work of this kind, it is not practical to separate the subjects of presentment and protest into separate sections, and treat of them separately. That would be the proper and systematic plan in a work on negotiable paper intended for the use of law students. This work is written in a conversational style and should explain all the new terms as soon as they are introduced so that an interest may be kept up during the narration. It is our purpose to take up each original party to a bill and speak fully of his rights and duties, and then take up each of the subsequent parties and likewise speak of their rights and liabilities. 138 ELEMENTS OF LAW. Drawer. It is presumed that the drawer has money, subject to his control, deposited with the drawee. This presumption is the foundation of the law of exchange. If the drawer has no money deposited with the drawee sub- ject to his orders, what right has he to direct the drawee to pay a sum of money to another? There is no absolute necessity that the drawer must have the money actually deposited with the drawee. For there may be an agreement between the "drawer and the drawee, that the drawee will give credit to the drawer in any amount they may agree upon, and that, when the drawer needs money he can draw on the drawee who will accept the bill when presented the same as though the drawee had money of the drawer in his possession on which the bill was drawn. This idea of credit is only a private affair, and the law treats it the same as though the drawee had, in fact, money of the drawer in his possession. 1. Duty. From this foundation it is easy to see the duty of every business man who desires to draw a bill. He should never draw a bill unless he has either the money deposited with the drawee or an agreement made with the drawee to accept the bills on credit. 2. Liability. The drawer undertakes when he delivers a bill to the payee that, ist, the drawee is able and com- petent to accept and pay the bill; 2d, that the drawee will accept and pay the bill ; and, 3d, that if the drawee does not accept or pay the bill he will pay it himself. Payee. It is hoped that the student will keep in mind the practical illustration of a bill of exchange given in sec- tion first. If he does, the following remarks will appear very plain. I. Duty. The payee has given to the drawer the face value of the bill. He, of course, expects to get his money again from the drawee as soon as he presents his bill. It is his duty to take the bill at his earliest convenience to the drawee and present it for payment, unless the bill, by IMILUUTIABLE PAPER, OR BILLS AND NOTES. 139 agreement between the drawer and payee, is not to be paid till some time in the future, say thirty days, or sixty days, or the like. Presentment for Payment. If some future day is named for payment, then a nice question arises, what is the exact day on which it must be presented for payment? We say "■must be presented for payment," and wish the words to be observed and remembered; for the law re- quires that the presentment must be made at the proper time or certain very important rights, which will be spoken of hereafter, will be lost. If a bill is dated April fifteenth, and is due"one month after date," it is said to be nomially due on the fifteenth of May, but not legally due till the eighteenth day of May. It is on the day when it is legally due that a bill, or note, must be presented for payment. The three days which intervene between the time it is nom- inally due, and at the time it is legally due, are called days of grace. Days of grace are so called because they were at first given as a favor to the acceptor of a bill, that he might examine into his account with the drawer and ascertain whether he was possessed of any money belonging to the drawer. But the custom of mer- chants to allow these days of favor has grown into a .law and they belong now of right to every bill and note. There is one mark of this favor still kept distinct. That is this : When the last day of grace falls on Sunday or a kgal holiday, then the paper is legally due on the second day of grace, whereas other contracts which require to be performed on a certain day, and that day falls on Sunday, or a legal holiday, they are not required to be performed until the Monday following. The difference in the rule arises out of the fact that as the days were formerly grace days, and no interest was allowed, it was but fair that the time should be taken from, rather than added to the days of grace, where, as in other cases, the contract could not be legally sued on till the day set, and that day being one on 140 ELEMENTS OF LAW. which the courts were closed no action could be brought till Monday. Now, however, interest is charged for grace days, and the reason for the old custom does not now exist, but the rule remains unchanged. The rule to be remembered, by which the day on which a bill or note is legally due is ascertained, is as follows : The latest busi- ness day within or before the period of grace is the day on which the bill or note must be paid even though all days of grace be excluded. If the last day of grace is a legal holiday, and the sec- ond day of grace is Sunday, the first day of grace would be the day of payment; but if, by proclamation, the first day of grace is also to be kept as a holiday, then all days of grace would be excluded and it must be paid the day on which it is nominally due, which, in this case, is also the one when it is legally due. The days that are observed as legal holidays in Ohio are the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the twenty-fifth day of December, and any day appointed and recommended by the Governor of the State or the President of the United States, as a day of fast or thanks- giving. It is also provided by statute in Ohio that any of the above named days ' ' shall for all purposes whatso- ever of presentment for payment or acceptance or of non- payment of all such instruments, be considered as the first day of the week," i. e. Sunday. If any holiday falls on Sunday then the following Monday is by statute to be observed by the business men in all transactions of nego- tiable paper as though it were Sunday. Days of grace are never given to non-negotiable instru- ments, only to negotiable ones. In Ohio, all bonds, notes, bills, and checks, payable at a day certain after date, or after sight, shall be entitled to three days of grace in time of payment; but if any of these papers are drawn on a bank, or banker, there are no NEGOTIABLE PAPER, OR BILLS AND NOTES. 141 days of grace allowed. When you go to a bank and pre- sent a check they must pay it at once. Negotiable instru- ments can be deprived of grace days " by inserting the fol- lowing words, to-wit, "without grace," or "no grace" or "fixed." Presentment for Acceptance. Having now ascertained with certainty on what day presentment for pay- ment must be made we pass to another point of much interest, namely, presentment for acceptance. The payee having possession of the bill payable at some future day ought to take it to the drawee and present it to him so that the drawee may know that the payee holds such a bill and expects him to pay it on a certain day. When the payee presents the bill the drawee must either agree to pay the bill when it falls due or he must declare that he will not pay it when it falls due. If he says he will pay, he is said to accept it, and this he does by writing the acceptance on the face of the instrument thus: "Accept- ed, May 2, 1886," and then signs his name. If he de- clares he will not pay it, that is refuses to accept, he is said to dishonor the bill. We shall here speak only of the result of acceptance. Dishonor will be spoken of under Indorsee. As soon as the drawee accepts the bill he be- comes liable for the payment of the bill. (For the duties and liabilities of an acceptor at this point, the student must look up those points under the heading Drawee or Acceptor). But the reason why the payee presents the bill to the drawee for acceptance is that he gets more security for his payment. By accepting, the acceptor is bound for the payment, and, if he does not or can not pay, we say that the drawer agreed that he would do so ; so that after acceptance the payee has to resort to both the acceptor and drawer for payment whereas before ac- ceptance only to the drawer. But the payee is not bound to present for acceptance. It is a question of discretion. But, if he does and the drawee does not accept, the bill 10 142 ELEMENTS OF LAW. will fall due immediately, and he ought not indorse it to anyone but take it to the drawer and have him pay back the money which the payee gave for the bill. Draivee or Acceptor. When the bill is drawn and until it has been presented and he accepts it, the drawee is under no liability whatever. If he refuses to accept the bill, he of course does not become liable in any way to the payee. 1. Duty as drawee. If he has money that belongs to the drawer, or has promised to give him credit by accept- ing bills drawn on him, it is his duty to accept the bill as soon as it is presented and he is satisfied that it is genuine. If he does not accept under such circumstances, and has no good satisfaction, he throws himself liable in damages to the drawer for whatever damages he may sustain, by having his business reputation destroyed in having his bill dishonored. It destroys his credit, and, if the drawee does so without just grounds, he ought to be made to pay dearly for it. 2. Liability as acceptor. When the drawee accepts, his name changes to acceptor, by which title he is always spoken of in his new capacity. It is his duty to pay the bill which he has accepted the day it falls due. He is not to seek the holder of the paper, but simply hold himself ready to pay on that day provided the holder of the paper does his duty and presents it. If he does not pay, the holder can sue him at once. By refusing to pay he is said to do an act that dishonors the paper as well as if he had refused 'to accept. But this will all be spoken of further on. By acceptance the acceptor is said to admit every- thing essential to the validity of the bill, that is to say— (i) that the signature to the bill is a genuine signature of the drawer; (2) that he \izs fmids of the drawer in his pos- session (the student will remember we said the giving of credit was a private aifair between the drawer and drawee and not observed by the law) ; (3) that the drawer is legally NEGOTIABLE PAPER, OR BILLS AND NOTES. 143 capable to bind himself by a contract, that he is of age and not insane ; (4) that, if the payee has indorsed the bill, he has the capacity to do so. Observe this: The law attaches these incidents named as necessary, and they do not depend upon agreement between the parties. It will be seen from the above enumeration of things, which the law says every acceptor warrants by the mere act of acceptance, that the liability of an acceptor is no slight thing. It is a just rule of law that he should be held to warrant all those particulars, and for these reasons: It is not to be presumed that two men are in such close busi- ness relations that one will place money in the hands of the other without each being familiar with the other's handwriting, so he must warrant the name of the drawer; that he ought to be taken as warranting that he has funds of the drawer in his possession is absolutely necessary as a foundation for the system of exchange; that he warrants that the drawer is legally capable to bind himself is a duty he owes to commercial men who may not know the drawer but do know the acceptor. It is but just to say that, if A deals with B in a business relation like an exchange con- tract, C, who knows A and accepts a bill because he sees his name on it, ought to be given the right to treat B as being a man possessing business capacity, otherwise com- merce could not be carried on, because no confidence could be established. Likewise, also, he warrants the business capacity of the payee if he indorses the bill to some other party, because it is too much like stultification to permit A to deal with B as a sane man and then turn around and say he is not sane. The law will not permit men to do so, although there is nothing to which they are more prone than to deal with a man as sane so long as they can make anything from him, and then turn around and swear that they consider him too insane to make a contract or a will. We have seen that the drawee is no party to a bill till 144 ELEMENTS OF LAW. he accepts. Bills are frequently, for the sake of security, drawn in sets — usually three — and when so drawn the drawee ought only to accept one. It makes no difference which one of the three is accepted. Can anyone except the drawee become an acceptor? No, unless the drawee refuses to accept when the bill is pre- sented, and then, if there is standing by one, who is a friend of the drawer, he may accept so as to save the honor and credit of the drawer. Such an acceptance is termed an acceptance for honor. An agent of the drawee can accept in his principal's name, but no one acting as agent ought ever to accept a bill in the name of his prin- cipal unless he has express authority so to do. If, when a bill is presented to the drawee, he writes the word "accepted," and signs it, but has not delivered it, i. e., returned it, he has the right to cancel his acceptance. Acceptance has no effect till delivered, and dates from delivery. The form given, that of writing the word "accepted" across the face of the bill, and, following it, the date of acceptance and the name of the acceptor, is not the only way, but it is the usual way of making an acceptance. It may be done orally, by telegram, may be implied as well as expressed, may be written on the back of the instru- ment, or on a separate paper, before the bill is drawn as well as afterwards, and it may be either absolute, condi- tional or qualified. When we come to speak of the rights of the holder we shall speak more fully on the different kinds of indorsements. 4. Indorser. If the payee desires to sell the bill, he may do so. To transfer his rights in a bill to the buyer, when it is drawn to him "or order," he must indorse it. From that time he is called an "indorser." But the payee is not the only one who may come under the title of indorser; the first indorsee may in turn indorse it to a second, the second to a third, and so on without limit, and NEGOTIABLE PAPER, OR BILLS AND NOTES. 145 such indorsee in turn becomes the indorser of his indorsee. What we say of indorser will apply to all who fall under that title. The different kinds and forms of indorsements having already been given, we shall speak here simply of the liabilities of an indorser. I . Liabilities. The indorsement is in effect drawing a new bill or making a new note, in which the indorser stands as the drawer or maker, and the indorsee stands as the payee. The law impHes that the indorser warrants, (i) that the paper will be _ accepted and paid according to its purport ; ( 2) that it is genuine; ( 3 ) that it is valid; (4) that all the parties whose names appear on it previous to his name are competent to bind themselves ; and ( 5 ) that the indorser has a good title to the instrument, and also a legal right to indorse it. These warranties are necessary for the pro- tection of commerce, and are in perfect accord with com- mon sense honesty. Sometimes the indorser undertakes, as we have seen, to restrict his liability on the instrument. What these restrictions are we will now set forth. It was stated under the liabilities of the drawer, that if the drawee should refuse to accept or pay the bill, he will at once pay it. This undertaking is not ex- pressed but is one that the law attaches. It has been stated under the present title of indorser that he stands as drawer. If he so stands, he must be taken as likewise agreeing that, if the acceptor does not pay when due, he will, and such is the law. To escape that implied duty, he resorts to an indorsement "without recourse." If the indorsee is willing to accept this, he simply loses the name of the indorser as a security, he loses none of the security that his indorser possessed. This will be made plainer under the title of indorsee. While the law permits the indorser to escape a part of his implied liabilities it will not permit him to escape them all. The law will not per- mit him to escape the liability assumed by every indorser that, ( 1 ) the prior names are genuine, ( 2 ) the note is genuine, 146 ELEMENTS OF LAM'. (3) that prior parties are competent, and (4) that the indorser has a valid title. If any one of these warranties are broken, an indorsement "without recourse" will afford no protection to the indorser. He will have to make good the instrument to his indorsee. This rule of law is a complete and perfect safeguard against all genteel thieves who pose as "gentlemen who deal in paper and secur- ities." 5 . Indorsee, or Holder. The student will remem- ber that, when the term "holder " was first introduced, it was stated that it referred to anyone who had possession of an instrument, and could legally demand its payment. It, therefore, includes the payee and all indorsees. There are many rights common to both, and where they are referred to we shall use the term "holder," where the others, the term "indorsee." I . Duty of indorsee, or holder. It was stated that the holder need not present a paper which is to be paid at some future time, for acceptance, but, if he did, and it was dis- honored, that is, not accepted, then he must at once give notice to all the preceding parties, that the paper has been dishonored. Let us suppose that the holder has made presentment for acceptance, why should he give notice to prior parties? Who are prior parties? When and where must he give the notice? What must it contain? These are some of the questions that follow the supposition an d which we will now proceed to answer. I. Why should notice of dishonor be given? The law attaches to the drawer of a bill the liability to pay it, if the drawee refuses to accept the bill. The drawer fully expects the drawee to pay the bill when it is due and also expects him, if the bill is presented sooner, to accept it. If the drawee refuses to accept the bill, he, of course, will refuse to pay when it falls due. The drawer, expect- ing the drawee to pay, may not make any preparations or arrangements to pay the bill when it falls due. If the NEGOTIABLE PAPER, OJi BILLS AND NOTES. 147 holder was to keep the fact of the presentment and its non- acceptance a secret, till the bill falls due, and then present it to the drawer for immediate payment, it might be an easy matter, in the case of a large bill, to force the drawer mto insolvency, or, at least, put him in very straitened circum- stances financially. Commerce will not brook such possi- bility, neither will the law permit it. The holder is not required to present for acceptance, but if he does, then the law compels him to give notice to the prior parties under penalty of losing them as securities if he neglects or refuses so to do. We have seen that each indorser stands in rela- tion to his indorsee as a drawer to the payee, so that, if an indorsee should make a presentment for acceptance, he must notify each one of the prior parties whose name appears either as drawer or indorser. If he does not give notice he can not collect the bill from them, for the implied warranty that the law attaches is broken by the act of the indorsee. 2. Who are prior parties ? This question may be best answered by giving an illustration. Suppose A draws a bill on B in favor of C. C indorses it to D, who indorses it to E, who indorses it to F, who indorses it to G, who, in turn indorses it to H . The law gives C the right to sue A, provided D refuses to accept the bill. By indorsement, C transfers to D all his rights in the bill and among them, of course, the right to sue A, if B does not accept. But D has one more security on the bill than C, for he has the same implied warranty from C, that he has from A. And so it goes on, each indorser giving to the indorsee all his rights, so that H in case B refuses to accept has a right of action against any one or all of the previous parties who are termed prior parties. Each name preceding any given name on a bill, but the names that appear on the bill after any given name is never called a prior party. As H has a right to sue any one of the parties whose name appears on the paper before his name. 148 ELEMENTS OF LA W. it is in his power to determine which one he will sue first. If he so desires, he may sue the drawer first, or pick out one of the previous indorsers and sue him. As the right to sue any one of the prior parties is given by law and does not rest in any agreement, the holder can at his will strike out any of the prior parties to the paper that he may see fit to excuse from this liability. Notice to one co-partner is sufficient. And a notice to one of two or more joint prior parties is deemed a notice to them all. 3. When and Where Must the Notice be Given. As soon as the paper has been dishonored the holder may give notice, but he must give notice at least be- fore the expiration of the next business day. If the parties live in the same place the holder has the whole of the next business day within which to give the notice. He is not restricted within the regular business- hours, but has until the usual hour of rest. If the notice is to be given at the place of business; it must be done during the business hours. When the parties live at a distance, then notice must be sent by the first direct, convenient and practicable mail that goes on the day next after the demand was made. The letter containing the notice of dishonor may of course be placed in the office and sent on the day of dishonor, but to be a good notice, it must be sent not later than the first mail the next day, unless that mail closes at too early and inconvenient an hour for business, in which case it must be sent by the next mail thereafter. What is a reasonable hour depends upon the place, the business and other circumstances, so that no hour can be set as a rule. As early as seven o'clock is said to be not within business hours. In one case even half-past nine, A. M., was thought unreasonable. Some writers, as Mr. Chitty and Chan- cellor Kent, lay down the rule that the holder has the whole of the next business day after dishonor within NEGOTIABLE PAPER, OR BILLS AND NOTES. 149 which to send the notice. This rule is not followed nor laid down by the United States Supreme Court and seems not to be on the side of the weight of authority. The safer rule is, send it by the first practicable mail if possible; if you can not, and you must rely on the rule as stated by Chitty and Kent, you will have reason and justice to aid you in pressing your claim to the protection of the rule. The holder needs to give notice only to the prior parties whom he intends to hold responsible for the payment of the paper. Suppose he gives notice only to his immediate indorser, then his indorser would have twenty- four hours after he receives the notice within which to send notice to his indorser, and so on, each subsequent party notified having twenty-four hours within which to send notice to his prior parties. But if the holder should send, as he should, notice to all the prior parties, that notice will be sufficient for the others and they need not send any further notice. But as the indorser may not know that the holder has sent notice to the other prior parties, it is not safe to run any risk, and he had better send notice also. The law looks to the sending of the notice only. If it is sent, but never reaches its destination, it will serve its purpose and the party will be bound. In this case the law makes the post agent of the party to be notified, and not the agent of the one sending notice. It is not necessary that the notice be sent by the mail. It may be sent by a private carrier. But if sent by private carrier, the party sending takes the risk of its being properly and seasonably delivered. The means of giving the notice can not be safely omitted by the holder. It is not only a safe way, but an absolutely safe way. The post may be used where the parties live in the same place and there is a delivery, but if penny-post does not deliver in that part of the town then personal notice must be given. In all small towns 150 ELEMENTS OF LA IV. and cities safety is on the side of a personal delivery of the notice. In all cases, a notice delivered at the residence of the party sought to be notified is good. It of course must be left in a manner reasonably calculated to bring a knowledge of it home to him. If the party is away from home temporarily and the house is closed, a notice left at the house is good. It should be slipped under the door or placed in some conspicuous place that it may draw his attention on his returning home. The law does not presume that the holder knows where all the parties reside, and if, after a diligent search and enquiry, the present residence of the parties can not be ascertained, a notice sent to the old residence will be good whether it reaches the parties or not. 4. Wliat Must the Notice Contain ? The notice may be given verbally or in writing. If it is given verbally, less strictness is required than if it is given in writing, but for the sake of evidence and security the notice ought to be given in writing. It is not enough that the party be informed merely of the presentment of the paper and its dishonor. Certain requisites required by law must appear in the notice else it will not be good. The law does not require the notice to be drawn in any particular form, but does require it to contain the following points: I . A correct description of the bill or note so that the paper may be recognized from the description. The description must be reasonable. If the name of the maker be entirely omitted it will destroy the efficacy of the notice. In a notice to a drawer a notice containing the words, "drawn by you " was held good to the drawer, but such a notice to the payee or indorsers would be defec- tive. Judge Story lays down the following rule: "The description of the note should be sufificiently definite to enable the indorser to know to what one in particular the NEGOTIABLE PAPER, OR BILLS AND NOTES. 151 notice applies ; for an indorser may have indorsed many notes of very different dates, sums, and times of payment, and payable to .different persons, so that he may be igno- rant, unless the description in the note is special, as to which it properly applies or which is designated." The parties are not confined to the mere face of the notice, in all cases, to ascertain its sufficiency. For the circumstances of each particular case may be examined, so that if the notice, taken in the light of the knowledge of such cir- cumstances, is reasonably sufficient, it will be held good. 2. The fact that the paper has been duly presented to the drawee, acceptor, or maker, as the case may be, must affirmatively appear in the notice. The language of the court is, "The presentment and dishonor of the bill or note must appear on the face of the notice in expressed terms or by necessary implication." 5. T\i& fact that, when the bill or note was presented, it was dishonored; and expressly stating whether the dishon- or was by non-acceptance or non-payment. 4. Expressly stating that the holder looks to the party noti- fied for payment. An example will make these requisites all appear plain and simple. If the paper is one that does not require to be protested — this will be explained shortly — the notice may be in substance as follows : Ada, Ohio, May 4th, 1886. To John Maglott, Bellville, Ohio: SIR:— I this day demanded of W. W. Poult- ney -payment of the note made hy him to you, dated May 1, 1885. for the sum. of one hun- dred dollars, due one year after date, and in- dorsed hy you to me January 1, 1886. W- W- Poultney refused payment and I, as indorsee, look to you for payment. I am, etc., J. E. VIRDEJV. 152 ELEMENTS OF LA W. 5. Rights of an Indorsee. Having spoken at some length on the duties of an indorsee, it will be necessary to speak briefly of his rights. The rights of an indorsee are, as a rule, as good as those of his indorser, and in many cases better. The class of cases in which they are supe- rior to the rights of his indorser will be considered in the section on Rights of a Bona Fide Holder." It will be more proper to use the term " holder" than the term indorsee, in the discussion here, as the same rights belong to the payee as to the indorsee. The chief right of the holder of a bill \yhen he presents it for acceptance is to demand that it be accepted absolutely and unconditionally . This is his right. He can demand it. If the demand is refused, he can treat the paper as dishonored. But he may see fit to waive his right and accept a partial or qualified acceptance. If he does so, he will be bound to stand by the accept- ance, and can not, of course, transfer any better acceptance than he was content to accept. The indorsee of an instru- ment bearing a qualified acceptance must receive it and abide by the acceptance the same as though he had consent- ed in the first instance to the qualified acceptance. Again, the holder can demand that the acceptance be immediate. The drawee can not ask for a few days or a week to con- sider the matter of acceptance. The law allows him twenty-four hours, but no longer, for deliberation. At the end of that time, if he has not accepted, the bill must be dishonored. Surety. A surety on a negotiable instrument is one who undertakes to pay the note as soon as it falls due, provided the parties primarily liable do not pay it. The surety himself becomes primarily liable the moment the note is due, and, being presented for payment, is not paid. That the student may understand the meaning of " primary hability," we will make a slight diversion at this point. When a bill is drawn the drawer is said to be primarily liable. He is the one who must pay that bill. NEGOTIABLE PAPER, OR BILLS AND NOTES. 153 The drawee is under no liability until he accepts, and then he becomes primarily liable, while the liability of the drawer becomes conditional. The payee must first sue the acceptor and, if he can not collect the money from the acceptor, then he has a right to sue the drawer. The same is true of all indorsers. Their liability is conditional. It depends upon the demand being made on the proper day and immediate notice given of a failure to pay. If the demand is not made on the exact day the bill is due, and legal notice given, the condition is broken and the parties conditionally liable, one and all, are excused by law from any further liability. The surety is a conditional party to the paper. The law looks to the rights of a surety, and protects them with jealous care. There is no part of the law so exact and de- manding such careful observation as the part which relates to the rights of sureties. The law justly considers that, if A is afraid to trust B, and asks C to assume that risk for him, he owes to C the most perfect good faith. A will not be permitted by any act or words or negligence to increase or vary the risks of C. If he attempts to do so, the law re- leases C absolutely from all his liabilities. 1. Duty. What, then, are the duties of a surety? Simply to pay the debt, if all his rights are observed and strictly kept and the principal does not pay the debt when it falls due. 2. Rights. The surety can demand: (i) that the holder present the paper for payment the exact day it falls due — neither before nor after; (2) that notice be given to him immediately of a failure to pay ; (3) that the holder make no compromise with the principal that he may have more time within which to pay. If the holder gives time to the principal he will lose his right to hold the surety, for, by giving time to the surety, it may deprive the surety of some chance to save himself harmless by acting promptly against his principal. But the agreement between the 154 ELEMENTS OF LAW. holder and the principal to give more time must be one founded on some consideration running from the principal to the holder, else the agreement will be void as not bind- ing in law. It has been held in Ohio that if the surety is fully indemnified by the principal, the mere extension of credit for a vahd consideration does not discharge the sur- ety ; (4) that if the holder has any property of the principal as security for the paper, he must keep it and hand it over to the surety. If the holder at any time gives back to the principal any property that he may have as security with- out first getting the express permission of the surety, the surety will be released from so much of his liability as equals the value of the property given up by the holder to the principal. It makes no difference when the holder may come into possession of the property. Neither does it make any difference whether the surety knows of the property being in the possession of the holder or not. If the holder has it, that is all the law asks. If that fact exists, and he restored the property to the principal, the law pronounces the act a dishonest one, and inconsistent with the most perfect good faith which tlje holder owes to the surety, and so it will excuse the surety from his liabil- ity /w tanto. Besides the rights just enumerated, the law excuses the surety from all liability that he may have assumed through any misrepresentation, or concealment of any facts made by the principal to induce the surety to enter into the relation, and which materially change the natural risks, and if they had been known to the surety, it could not reasonably be supposed that he would have consented to the contract in the manner in which he did. For example : Suppose A is in the employment of B as a clerk in a store. B knows that A has, at different times, unlawfully taken money from the till. B asks C to become surety of A for honesty, good conduct and the faithful discharge of his duties, but does not disclose to C the fact that A has been known to NEGOTIABLE PAPER, OR BILLS AND NOTES. 155 take money unlawfully from his employer. C consents to become the surety. A is again detected taking money unlawfully. B sues C on his contract of surety. At the trial the fact that B knew of the previous misconduct of A is brought out. C will be dismissed from all liability on his contract on the ground that B had concealed from him certain facts which materially increased the risk assumed by C. Duress will also be a ground for discharge. The student will readily see that all indorsers are sure- ties to the indorsees. So is the drawer after the bill has been accepted . Acceptor and maker are always princi- pals. There may be two or more sureties on the same paper; if so, and one of them is compelled to pay the whole sum of the debt, as he may be compelled to do, he has a right of contribution from his co- sureties. The right of contribution between co-sureties is this: If A, B and C are co-sureties, and B is called upon to pay the whole debt, and does so, he can demand and recover of A one-third of the debt and a like sum of C. If, however, B pays only one-third of the debt, he has no right to contribution. The holder may, if he sees fit, release one of the co- sureties without releasing the others, but, if he does so, he can not collect from the remaining ones the pro rata share of the surety released. If one of the co-sureties becomes insolvent, the remaining solvent co-sureties must assume his liability proportionally among them. If the principal is released from the debt, the same act discharges the sureties. Such are the more fundamental rules that govern the rights of the surety. In Ohio a very important right to sureties is provided by statute. It gives to sureties the right to require their creditor, by notice in writing, to commence an action on such instrument forthwith against the principal debtor; and, unless the creditor commences such action within a reasonable time thereafter, and proceeds with due dili- gence, in the ordinary course of law, to recover judgment 156 ELEMENTS OF LA W. against the principal debtor for the money or other valu- able thing due thereby, and to make, by execution, the amount thereof, and, if the creditor fails to comply with such notice, he shall thereby forfeit the right which he would otherwise have to demand and receive of such sureties the amount due thereon. This is a good law. It puts it into the power of a surety to compel the creditor to sue the principal first; but as it is a restriction of the common law principle that the holder, if he wishes, can sue the surety first, the provis- ions of the statute which have been given must be strictly followed. The notice must be in writing. It can not be given verbally. It must contain an unconditional demand to commence an action forthwith. A notice that the surety " wishes " the holder "to proceed against the prin- cipal debtor" is of no effect; neither is one which demands that "action be commenced forthwith, or have it arranged in some way, as the surety does not wish to remain secu- rity any longer." The following is the usual form of such a notice : Ada, Ohio, May 5th, 1886. To Kirk Hoffman: Sir — You are hereby required, forthwith, to commence an action against C. L. Hoover on a certain promissory note, to-wit, the one made hy C. L. Hoover to Kirk Hoffman, dated May 2d, 1885, at Ada, Ohio, and due one year after date, for the sum of One Hundred Dollars, and whereon lam surety. G. A. SPENCE. NEGOTIABLE PAPER, OR BILLS AND NOTES. 157 Suretyship is onerous. "He that is surety for a stranger shall smart for it, and he that hateth suretyship is sure." " Be not thou one of them that are sureties for debts," for "why should he take thy bed from under thee? " 7. Guarantor. It is desirable that, in the use of the words, the proper distinction should always be made between surety and guarantor. The guarantor does not hecovne primarily liable, as does the surety, as soon as the debt falls due and is not paid. His obligation is conditional. If the principal does not and can not pay, then he will. The law does not demand that notice shall be given to the guarantor immediately on the paper being dishonored. It requires that good faith be kept and that notice shall be given to the guarantor within reasonable time ; if not, and the guarantor can show that he has been damaged thereby, he will be released to the amount of the damage. The holder must sue the debtor first, and use every means provided by law to col- lect the debt, and then, if he fails, he has recourse to the guarantor. The greatest care must be exercised in sign- ing the name as guarantor. It should be, in substance, as follows : "1 guarantee to A. B. the collection of this note . CD." In a guaranty of this kind A. B. must sue the principal first and push him to entire insolvency before C. D. becomes liable. It will be seen that the surety is an insurer of the debt, the guarantor, of the solvency of the debtor. The guarantor undertakes to pay if, by the exercise of due diligence, the debt can not be made out of the debtor. It becomes a very important thing that it clearly appears on the paper in which capacity the party stands — whether surety or guarantor. There is but one safe and absolutely sure way to effect this, namely — either use the form given or else never sign your name to a paper as a surety or guarantor without affixing the word "surety" or "guarantor, "thus: "A. B., Surety," or "C. D., Guarantor." II 158 ELEMENTS OF LAW. There remains but one more point to mention in this connection, and it applies equally well to sureties as guaran- tors, namely, the consideration for the promise. The surety or guarantor receives no direct personal benefit for assuming the risks that have been set forth. A promise without consideration is void in law ; why, then, can we hold the surety and guarantor? 1. If the contract of suretyship is made at the same time as the principal contract, the consideration of the principal contract will be considered as sufficient for the collateral one. 2. If made before the principal contract, it will be pre- sumed to be made on the credit given to the principal debtor, and will be valid. 3. If made after the principal contract, there must be some new consideration given to the surety or guarantor. Rights of a Bona Fide Holder. Negotiable paper is but the representative of money, and ought to be permitted to circulate as freely as possible. The necessity and convenience of commerce demand that such instruments be stripped of all needless weights and clogs, and allowed the greatest freedom of circulation consistent with the interest and rights of all parties concerned. To secure this end there has grown up the doctrine known as the " Rights of a Bona Fide Holder." This body of principles declares : That anyone who, in the course of a business transaction, for valuable consideration, has, in good faith, without notice and before maturity, come into pos- session of a negotiable instrument, shall hold the same free of all equities that may exist between the original parties to the instrument. A negotiable instrument is only a promise to pay a cer- tain sum of money, and, like any other contract, there must be a consideration to support the contract. So long as the instrument remains in the hands of the payee the consideration can be inquired into, and, if it be found NEGOTIABLE PAPER, OR BILLS AND NOTES. 159 wanting, the promise will not be enforced. But if, after the instrument has been negotiated, the law would permit the consideration to be inquired into, no one could be found who would purchase a negotiable instrument. The very object of negotiable paper would be defeated. But as soon as the law says to a man, "if you purchase a nego- tiable instrument in the due course of business for a valu- able consideration without notice of any defect, and before the instrument is due, you will be protected in your pur- chase, and the acceptor or maker will have to pay whether there is a consideration or not," then business men will take bills of exchange as readily as money, and the chief end of negotiable instruments will be fulfilled. Such is the law, and its foundation is laid in sound reason. But who is a bona fide holder ? It is evident that the payee can not be, because he is the first one to sell, while no one but a^ purchaser can be a bona fide holder. There is not much to be said with regard to the rights of such a holder. It is all contained in the definition. If the student will examine the definition carefully, he will see that it contains all that is required to give him a full idea of the relation. But an example will not be out of place to fix the definition in the mind: Suppose A makes a note " to B or order " for one hundred dollars. B was to give A some stock as a consideration for the promise, but did not do so. Before the note is due B sells the note to C for value. C did not know that B had not given a con- sideration for the promise of A to pay the money. The note falls due. C sues A, who asks the court not to per- mit C to collect the note because he had never received any consideration for his promise. The court will reply: " C did not know of the failure of the consideration. He saw your name signed to the promise to pay, and had no reason to suspect that all was not right. It was your act of signing the note, and delivering it before you had received any consideration for your promise, that made it 160 ELEMENTS OF LA W. possible for C to purchase this note. If we grant your request he must suffer thereby. But the law says : If one of two innocent persons must suffer from the fraud of a third, the one of the two who, by his neglect of duty or want of good faith, has induced the other to confide in the fraudu- lent rogue, must bear the loss. Therefore, since your act of signing the note and delivering it to B without a con- sideration made it possible for him to deceive C, you must pay the note to C. ■ No one who understands the system of credit and the needs of commerce will condemn such a a decision. It is just, it is necessary, and it is tight. But there are exceptions to all rules. Each branch of the laws has its rules, and each rule its own exceptions. In no branch of the law is this more fully demonstrated than in that of commercial law, yet, in this department, the strict and rigid rules of law are more generally applied and equity less potent than in other branches. Here the necessity and convenience of commerce are the governing factors — the foundation upon which this structure of the law is built. Private rights and interests when they come into opposition to these great principles, must give way. The public good and its convenience are paramount to that of private. The peculiar rights and defenses of a bona fide holder may, at first view, seem to be unjust and tyrannical, but, upon a closer study of the causes and public need and convenience that has led to their adoption, reason 3.nA. justice appear on their face, and we are called upon to admire the wisdom displayed in laying the corner stone of this beautiful, use- ful and just structure. It is not the object to discuss the rights of a bona fide holder in all their relations, but to deal with the few cases which arise where the holder of negotiable instruments, on account of some defect in his title, caused by the positive interdict of law, or arising from his own acts, or that of others, is barred from claiming and enforcing the rights of NEGOTIABLE PAPER, OR BILLS AND NOTES. 161 a bona fide holder. For convenience we will divide these defenses into, (i) Peremptory, which contain the death wound in their own original; making the instrunaent ab- solutely void. (2) Conditional, which depend upon extra- neous matter for their force, and which render a contract not void but simply take away the rights and defenses of a bona fide holder. The peremptory defenses consist either of (i) the incapacity of the parties, (2) the positive interdict of law, or (3)> want of consent of the party sought to be bound by the contract. First. Incapacity of the parties to the contract. Under this class of persons are lunatics, infants, agents without authority, and married women. However, as to married women, this is the common law rule. If, by statute, she is given full power to contract her own separate estate, and she gives a note, the benefit of which goes to enhance her own estate, or, if she gives it to secure her husband's debts without, in terms, making it a charge upon her sep- arate estate, she would be liable upon the note. Of course, instruments by lunatics, infants, and agents with- out authority, never having had any legal inception, can not be enforced by anyone. Second. The positive interdict of law. The enumera- tion of this class depends upon the statutes of the different States. Where the statute positively forbids certain con- tracts, all notes given to aid in the furtherance of such contracts, are declared to be an absolute nullity. Being illegal in their inception, although negotiable in their form, they are void even in the hands of a bona fide holder, but the fact that an instrument was given for an unlawful con- sideration or for one against public policy, is not a defense against a purchaser for value and without notice, in the absence of the statute positively avoiding it. For exam- ple : Suppose the consideration to be the suppression of a 162 ELEMENTS OF LAH. criminal prosecution — the note would be good in the hands of a bona fide holder. Third. Want of consent of the party to be bound by the contract. Instances of this are: (i) Where the name was forged, or (2) the note was subsequently materially altered. (3) Signing under duress, and (4) signing un- wittingly. Of these in their order: i. Where the 7iame is forged. Fraud cuts down everything. Forgery goes to the essence of the contract and renders it void ab initio. If forged notes were permitted to be of force in the hand of a bona fide holder, the system of credit would be destroyed, and the innocent be a prey to the vicious and depraved. 2. Subsequent material alteration of the note. The. gen- eral rule of law as to this point is : If a written instru- ment be altered in a material particular, whether by the person claiming under it, or by any other party to it, with- out the consent of the defendant, there can be no recovery against him upon the instrument either in its present or in its true original form. The reasons for this rule are, (i) No one will be permitted to commit a fraud without run- ning the risk of losing by the act if it be detected, and (2) The identity of the instrument has been destroyed, and the defendant can say: The note used I did not exe- ecute; the note I did execute has not been used, but was destroyed' by the alteration, and another substituted for it. 3. Signing under duress. If a note be given under du- ress it is void because the will did not go with the act. There never was a legal inception of the note, besides it is manifestly out of the usual course of business. 4. Signing unwittingly. Under this head will come all those cases of patent-right frauds where, under the pre- tense of having a party to sign a contract, he unwittingly signs a negotiable instrument. An example of this rule is found in Gibbs & Linnaburry, a Michigan case. The court held that when a party, unwittingly signs an instru- NEGOTIABLE PAPER, OR BILLS AND NOTES. 163 ment in the form of a note, which is negotiable, relying upon /aZf^ representations made to him,, at the time, un- der circumstances devoid of any negligence on his part, such instrument is to be regarded as a forgery and can not be enforced in the hands of a bona fide purchaser. However this rule is not followed in all the States— some hold a note good — Ohio makes negligence the test. To my mind the Michigan rule is the better. In such cases the will never goes with the act, and it would be manifest injustice were the gates left open that unprincipled knaves might enter and entangle the unwary. Tlie Conditional Defenses consist either of (i) having notice of existing equities, (2) tracing the title through fraud, or (3) misapplication of accommodation paper. Of these in their order. First. Having notice of existing equities. Notice is having information of a particular — the information given of some act done. One of the prime requisites of a bona fide holder is, that he has taken the instrument without notice or knowledge of any defect or dishonor with which it may be tainted. It would seem to follow from this general statement that no one could be a bona fide holder who knew before he purchased it that there was a flaw in the instrument. But such is not the case. If the holder, through his conduct, is a privy, that is, one who is a partaker, or has any part or interest with the parties by whose actions the defect arose, and he knew of the defect before he purchased the instru- ment, he is not a bona fide purchaser, and can not collect; but, if he is not in privity with the parties by whose acts the defect arose and he, knowing of the defects, buys the instruments, he is a bona fide purchaser and can collect his note or bill. For example : A gives to B his note for a consideration, which consideration fails. This fact C knows before he buys the note of B. By the purchase, C 164 ELEMENTS OF LA W. becomes a privy to the parties and is not, in the commer- cial law, regarded as a bona fide holder; but if C, not knowing of the failure of the consideration, buys the note of B and sells it to D, who knows of the want of consid- eration, he conveys to D the rights of a bona fide hold- er, because C being a bona fide holder will convey his complete title to D who is not in privity with either A or B. The purchaser from a bona fide holder takes the rights which the bona fide holder possesses. There is one ex- ception to this rule. Take the example above given. In that case C is a bona fide holder, and it is his right of a bona fide holder that enables D to sue on the note. But suppose C, a bona fide holder, sells to D, who is thereby a bona fide holder, and D sells to E, also a bona fide holder. Now suppose E sells the note to B, one of the original parties, the payee, can B sue A on the note and collect it? The rule has not been extended so far. B, certainly, in justice, ought to fail. It is no violation of the rule for the protection of innocent indorsees that he should not be allowed to recover on the note. Notice is divided into express and implied. The first class is easy of solution, but it is with the second class, implied notice, that the courts have had the most to do. What amounts to implied notice, and upon whom the responsibility rests of reducing the implied notice to a cer- tainty, are questions that have often been before the courts and have received a variety of answers. Due notice is not susceptible of a fixed definition. Each case must be construed by its own circumstances. It may be said that if the circumstances of the transaction be of such a character as to indicate strongly a defect in the title, and, if they be such as to invite inquiry by a careful and prudent man, they will suffice, providing the jury think the absence of inquiry arose from a belief or suspicion that the inquiry would disclose a vice in the paper, to make it NEGOTIABLE PAPER, OR BILLS AND NOTES. 165 constructive or implied notice. Baron Parke says: "I agree that notice and knowledge mean not merely ex- press notice, but knowledge or means of knowledge to which the party willfully shuts his eyes." Mr. Daniel says: " If the circumstances are of such a character as to create such a distinct legal presumption and prima facie proof of fraud, or of some equity between prior parties, it would operate as a legal information and constructive notice to the transferee." Second. Tracing title through fraud. A holder, to be a bona fide holder, must not be compelled to trace his title through fraud. Fraud may be committed either by the original or subsequent parties to the bill or note. In either case it may operate to defeat the bona fide \io\Aqx from col- lecting his paper. Third. Misapplication of accommodation paper. Ac- commodation paper is, in the strictest sense, a loan of the maker's credit, without instructions as to the matter of its use. But it may be given upon special consideration, as, — that it is to be used in a certain business transaction, — or discounted at a certain bank, — or any conditions the maker may see fit to make. If a note be so given and the purchaser knew the condi- tions had been violated by the holder of the note, he can not recover. So, also, if one buys a note given on an executory contract, and knows at the time of the purchase of the note that the conditions of the contract had been broken by the holder of the note, he can not collect his note. In the course of the preparation of this section I have purposely forborne to enter into a discussion of the de- fenses of a bona fide holder as they are modified and changed by the conflict of laws. Neither have I noticed that class of cases where notes have been given which contain "stipulations for Attorney's fees." And, under the classification and heads which I have made, I have only 166 ELEMENTS OF LAW. mentioned a few of the more simple and apparent cases. To this I simply add. The few exceptions to the general rules of the rights of the bona fide holder can work no great or material hurt to negotiable paper. These few clogs and weights serve as ballast to keep the stately ship of credit from oversetting in the mid ocean of commerce. The most important thing to be remembered is that no one can claim the protection of a bona fide holder who takes the instrument after it is due. The indorsee of an instrument past due takes it subject to all the equities that may exist between the original parties. Chief Justice Shaw states the law on this point thus : ' ' Where a nego- tiable note is found in circulation after it is due, it carries suspicion on the face of it. The question instantly arises ! Why is it in circulation'? Why is it not paid? Here is something wrong. Therefore, although it does not give the indorsee notice of any specific matter of defense, such as set off, payment, or fraudulent acquisition, yet it puts him on inquiry; he takes only such title as the indorser himself has, and subject to any defense which might be made if the suit were brought by the indorser." "But there is a Hmitation to this doctrine; says Mr. Daniel, " that if the holder acquired the paper after maturity, from one who became a bona fide holder for value and without notice before maturity, he is then protected by the strength of his transferer's title." That is, if A were a bona fide holder of a negotiable instrument and, after it fell due, he should transfer it to B, B in the eye of the law is not a bona fide holder, but, since A was 2, bona fide hold- er and could have collected the paper free from any equi- ties, he, by indorsement, transferred all his rights to B, who can rely upon A's title and collect the note or' bill. Such, however, is not the law in Ohio. The law in Ohio is, that, when an indorsee after maturity sues, the acceptor or maker can set up any defense he might have made, had NEGOTIABLE PAPER, OR BILLS AND NOTES. 167 the action been instituted by the payee. It is a dangerous thing in Ohio to purchase a bill or note after maturity. Protest. 'Evtry foreign bill of exchange must be pro- tested.- Inland bills and promissory notes may be protest- ed, but it is not essentially necessary. So indispensable is the protest of a foreign bill in the case of its dishonor that unless the holder of the dishonored paper can produce a cer- tificate of protest, he -can not hold the drawer or the indorsers responsible for the payment of the bill. It is the object of this section to give the student some idea of what is meant by protesting a bill, and, also, how to proceed to properly protest an instrument. On the day the paper is legally due, the holder must present it for payment. If the acceptor or maker refuse to pay it, then the holder must take the paper to a notary public, and have the notary public take the paper to the acceptor or maker, and present it to him and demand pay- ment. Then, if payment is again refused, the notary de- clares the paper dishonored and must, forthwith, give notice, under the seal of his office, to all the parties entitled to notice, or the ones whom the holder intends to hold re- sponsible for the payment of the paper. A notary public is a public officer, commissioned by the State, and possess- ing an official seal. In foreign countries as well as in his own, full faith and credit are given to his official acts.* Protesting paper is strictly a notarial act. It requires great care in drawing up a formal notice of protest, for the slightest inaccuracy may be fatal. The notice must contain the following points: (i) It must state that it was presented on the day it was legally due ; (2) if the paper is to be paid at a certain specified place, the certificate must state that it was presented and payment demanded at that place ; (3) it must distinctly state that a demand for payment -wSlS mSide; (4) the /arf of the dishonor must as distinctly be stated; (5) also the name of the acceptor or maker upon whom demand was made must be 168 ELEMENTS OF LAW. given. The same steps are taken to protest a bill or note for non-acceptance. The usual form for a notice of a pro- test sent to the parties is as follows : STATE OF OHIO, \ ^^ Hardin County. / " Ada, Ohio, May 6, 1886. Take notice, that a hill of exchange, for one thousand dollars, dated London, England, March 3, 1886, drawn by Smith, Brown ^ Co., Bankers, London, Eng., in favor of S. S. Lehr, Ada, Ohio, on The Citizens Bank, Ada, Ohio, accepted hy The Citizens Bank, Ada, Ohio, April 15, 1886, indorsed by S. S. Lehr, April 16, 1886, to J. G. Park, payable two months after date, was this day presented to The Citi- zens Bank, of Ada, Ohio, at their place of business, within business hours, for payment, which was refused, and therefore was this day, protested, by the undersigned notary public for non-payment. The holder therefore looks to you for payment thereof, together with interest, damages, costs, etc., you being indorser thereof. A. M. WEST, Notary Public. To H. S. Lehr, Ada, Ohio. Forms of Bills and Notes. For convenient ref- erence a few forms of bills and notes will be given. At the same time, the peculiarities of each will be pointed out. I. USUAL FORM OF BILLS. SSOO. Ada. Ohio, May 6th, 1886. On demand (or at sight, or ten days after NEGOTIABLE PAPER, OR BILLS AND NOTES. 169 sight, or so many days after date,) -pay to M. Jay Ewing, or order, (or hearer ) five hundred dollars, value received, and charge the same to my account. P. AHLEFELD. To N. H. CoLWELL, Kenton, Ohio. The words "value received" are usually found written in notes and bills, but they have no special force and may as well be left out. The phrases "at sight" or "after sight" simply mean on "presentment" or " after presentment. " When Ewing presents the bill to Colwell for acceptance and Colwell accepts, the date of the acceptance determines when the bill falls due, which will be the number of days specified after sight, together with the days of grace. Bills and notes payable " on demand " have no " days of grace, " while those drawn "at sight " have "days of grace." 2. FORM OF JOINT NOTE. $600. New York, May 10, 1886. On demand, we promise to pay F. E. Seager, or order, five hundred dollars, value received. JOB HILL. S. D. FESS. The wording may be thus "we jointly but not severally promise to pay." On such a note neither one alone can be sued, but both must be joined in the action. 3- FORM OF JOINT AND SEVERAL NOTE. $500. Chicago, III., May 10, 1886. On demand we jointly and severally promise to pay C. L. Hoover, five hundred dollars. LAWRENCE SEAGER. W. I. PRIEST. ROBT. E. McDonald. 170 ELEMENTS OF LAW. It will also be a joint and several note if it is worded thus: " On demand, I promise to pay," etc., for it is the present promise of each name that is signed to it. 4- COMMON NOTE WITH SURETY. $100. A a, Ohio, May 10th, 1886. One year after ate I promise to pay Davi MecJc, or order, One Hundred Dollars. Inter- est at seven per cent. JOHN HOLLAND, CLEM. MAXWELL, Surety. 5- FORM OF A DUE BILL. $25. A a, Ohio, May 10th, 1886. Due D. 0. Dean Twenty-five Dollars. H. LEASURE. 6. BILL OR NOTE WITHOUT GRACE. $500. Chicago, HI., May 10th, 1886. Thirty days after date fixed, pay to Fred- erick Maglott Five Hundred Dollars. J. WARREN DARST. To H. L. Roberts, Ada, Ohio. The same is accomplished by writing "without grace" or "no grace." Interest. Interest is the compensation which is paid by the borrower of money to the lender for its use. What- ever may have been the opinions of men regarding the legality and morality of such a practice, it is certain that men do and will continue to charge interest for the use of their money. In most of the States, if not all, a limit to NEGOTIABLE PAPER, OR BILLS AND NOTES. 171 the rate is fixed beyond which the lender can not go with- out subjecting himself to the law against usury. The legal interest is the rate established by law, and will prevail if none other is stipulated. In Ohio the legal rate is six per cent. The parties may contract for eight per cent. There is no penalty attached for a violation of the law. However, when a lender sues on a prom- ise to pay more than eight per cent., he can collect from his creditor only six per cent. The law simply treats the agreement as though none had been made. Interest in business circles is generally computed on the basis of three hundred and sixty days to the year. The United States Government, as well as foreign, reckon three hundred and sixty-five days to the year, and each day is considered as the Tirth of a year. Interest is allowed on all express contracts in which it is stipulated, and on implied con- tracts where, from the course of dealing between the par- ties, a promise to pay is implied. It will be important to remember that if a note is made in Ohio, where the legal rate is six per cent., and is to be paid in Oregon, where the legal rate is ten per cent, and no rule of interest is stipulated in the note, the interest will be measured by the law of the place where the note is to be paid. A note made in one State and dated in another is presumed to be payable where dated, and is governed by the laws of that State. 172 ELEMENTS OF LA W. CHAPTER VI. PROPERTY. Real Propertyt We saw that one of the absolute rights of mankind was the right to acquire, possess, and dispose of private property. The word property is used in the widest sense, including all kinds of property. There are two kinds of property, and the distinction between them, as well as the law that governs them, is clearly defined. These classes are known by the names, real and personal. In this section we shall speak of the first class, known as real property. By the term property is meant the right and interest which a man has in lands and things known as personal property to the exclusion of all others. Those things which are immovable and in their nature permanent are called real property. The term "immovables" is some- times used, and it nearly coincides with the meaning of real property. On the other hand, those things which are in their nature movable and may be carried or attend the owner wherever he may choose to take them or go, are called personal property, which term is almost synonymous with " movables." There is a species of property that partakes of the nature of both real and personal. If we divide all kinds of property into real and personal, this mixed class is grouped under personal property. But a different term than personal is used to designate all kinds of property that is not strictly real, namely, "chattels," and that kind of property which partakes of the nature of real property, as well as that of personal property, is termed "chattels real," and that which is purely and simply movable or personal, is termed "chattels personal." Chattels, whether real or personal, are treated in every respect as personal property. I simply introduce these terms so as not to leave the student without names by which to speak of all kinds of property. PROPERTY. 173 Real property may be defined as meaning the land, and generally all that is erected or growing upon or affixed to the land. A house or barn being erected on the land is spoken of as a part of the realty and passes to the person who buys the land or realty, without being named. So also the trees and grass growing upon the land form a part of it and, likewise, pass on a conveyance of the land or realty without being named. Again, if the owner of a piece of land digs a well and puts a pump in it, the pump is said to be affixed to the land or realty, and becomes a part of it, and hence passes with a sale of the land or realty without being named. Our law of real property was borrowed from England, but we have materially changed it; but while we have changed the law we have retained the old terms and put into them quite a new meaning, and it will be neces- sary, in this work for the sake of clearness, to insert a few words of explanation, so that the meaning may be easily grasped by the mind. I have chosen this plan rather than to make reference to notes, for in many instances, a seeming synonym will make the meaning quite as clear as a note. There has been much speculation as to the manner of the origin of property. The poets delight to picture the time when "men dwelt together in innocence and simplicity;" when " love was law," and "each partook of the fat of the earth in common," but, to the student of history, when he reads of the first mother weeping over the first grave, which contains the remains of the first man born into the world, killed in his youth by his own brother, simply because of a quarrel which arose out of the nature and quality of their different kinds of property, the period of innocence seems quite short, the law of love soon broken, and the quantity of fat partaken of in common must have been quite meager. Abel was a dealer in personal property, and Cain was 12 174 ELEMENTS OF LAW. an owner of realty. Hence we find that both kinds of property were recognized as early as the beginning of time, and to spend time in seeking the origin of property is to waste so much time in idle conjecture. When we speak of land we mean the soil and all that is beneath it to the center of the earth, and all that grows upon it or is attached to it, as well as the water that stands in ponds upon it or flows in beds over it. The theory of the law is that the owner of a tract or piece of land is the owner of every thing above and beneath it. O'wnersliip means the exclusive right to its use and enjoyment. So no one has any right to go on the lands of another, or dig under them, or throw stones into the air over them, without the permission of the owner. The interest which the owner has in the lands is termed his estate. The means by which he has lawful possession, or when he is unlawfully put out of his possession, by which he can regain possession, is termed his title. Hence the desire to have a good and lawful title. The quantity and quality of interest may vary to a great degree, and this gives rise to various names to correspond to the different kinds of estate. Before we speak further on the subject of estates it becomes necessary to explain briefly the doctrine of the Feudal System which obtained so much sway in the island of England, and left its impress on the names of the estate which we still use, although we have none of the Feudal System in force in this country. When and where the system first began is not definitely known. It first comes prominently into view after the downfall of the Western Roman Empire. It was introduced in all its vigor into England by William, the Conqueror, 1066, A. D. The system seems to have been a necessity. We will take the case of William the Conqueror as an illustra- tion of the entire system. William had none, or at least very little, claim to the throne of England. PROPERTY. 175 The crown was at the bestowal of the chiefs of the noble houses, and when Edward the Confessor died on the fifth of January, 1066, they bestowed the crown on Harold, the Saxon, and declared that Harold should be their king. William of Normandy claimed that he ought to be declared King of England because of his relationship to king Edward the Confessor. This right the English nobles denied. William raised a large army and invaded England. At Hastings on Saturday, the fourteenth day of October, 1066 was fought the great and decisive battle between Harold and William. Harold was killed in the battle, and William, being successful, became the con- queror and master of England. On Christmas day, of the year 1066, at noon, he was crowned King of England. But the English hated him. To keep his throne he must have an army. So he declared that he was the owner of all the lands of the Island. He divided it into small parts and gave them to his chief officers. The conditions on which they got possession of the land were that they would be loyal to the king, aid him in time of war, and ransom him if he was taken prisoner. If they broke any of these conditions he took from them their land. The student can readily see the theory of the forfeiture of land to the king or government when one has been guilty of treason. These chiefs or generals, or barons, as they were called, in turn divided off the tract of land that was given to them by the king, and gave to each of their soldiers a portion, on the following conditions : the soldiers were to be faithful to the general or baron, and aid him when he was called upon by the king to go to war, ransom the baron, as he was to ransom the king, if taken a pris- oner ; but the king required that there should be a saving in the oath taken by the soldier that if the will of the king and the will of the baron came in conflict the soldier was to obey the king. The soldier was said to owe homage and fealty to the baron and allegiance to the 176 ELEMENTS OF LAW. king. The people of the United States stand in such a relation to the State and National Government. They owe fealty to the State and allegiance to the National Government. When the will of the National Government and that of the State comes in conflict the citizen must obey the will of the National Government. The opposite of this is the pernicious doctrine of States Rights. If the king gave one of his officers a tract of land to be his, solely and unconditionally, the officer was said to have an "allodial estate," those who owed allegiance were said to have a "feudum, " "feud," "fief," or as we now call it, a " fee." At first the king claimed and exercised the rights of dis- posal of the land at his will, then he permitted them to hold for a year, then for longer periods, till, at last, the barons or lords considered it beneath the dignity of a free man to accept an estate in lands that would not last as long as the lord lived. So they made this demand of the king which he reluctantly granted, and thus we have the origin of a "free hold estate " which means an estate worthy of a free man and one that must last for his lifetime. The king, after he yielded to the demand for Hfe estates, still claimed and exercised the right to take possession of the land as soon as the lord, or peer of the realm died, and grant it out to another. If the deceased lord had been a good and faithful Knight, as he was called from his service in the army, which was always on horseback, the king usually gave the land to his eldest son, who would be the most likely to be able to go into war and be of assistance to the king. This mode soon became the custom and the law, and so the eldest son came to be the successor of the father, which established the doctrine ol primogeniture in the law of real property in England, namely, that the eldest son should be the exclusive heir of all the father's estate. This unjust distinction has been abolished by the several States in the United States. Thomas Jefferson was PROPERTY. 177 the pioneer leader in striking the great blow at the foun- dation of hereditary aristocracy, and if he had never done anything else, that is enough to cause his memory to be held in grateful remembrance by a people whose love of liberty and political equality would not permit a class of aristocrats. Without the doctrine of primogeniture, hereditary aristocracy can never exist. The king was termed the lord paramount. The one who held the lands directly of the king was called tenant in chief, (the word tenant means one who holds lands of another), he was called lord of the fee in reference to the tenant under him who was called tenant paravail, because he worked the land, and hence had the avails or profits of the land. The tenant paravail would usually have some under tenants, and this manner of dividing up the land was called subinfeudation, that is, cutting the feud into smaller feuds or fees. We are now ready to see how this system operated. When the king went to war, (we can easily see that he had the sole power to declare war,) he would notify his tenant in chief when and where to meet him, and how many men to bring. The tenant in chief would then notify his tenants to prepare for war, these being the ones that usually did the fighting, the sub-tenants remaining at home to till the fields. These tenants would fight under the banner of their respective lords. This was a grievous system of land tenure and lasted for six centuries in Eng- land, being abolished in the twelfth year of the reign of Charles II, A. D. 1660. Before we were led to speak of the feudal system we had defined an estate to be the interest one had in lands. We saw how the estate in fee arose, also how it came to be called an estate of freehold, and further how a fee came to be inherited by the eldest son. We learned that a "ten- ant " was one who had lands of another, and the right or means by which he held the land was called " tenure " and 178 ELEMENTS OF LAW. we Still use the word in that same sense when we speak of the tenure of office, and so on. The land that was held by tenure was called a '^tenement" which means a thing held by another, and we still use the word in that sense when we say a man who rents a farm or house of another is a tenant, and we call the house or farm a tenement. All know what is meant by a "tenement house," spoken of so frequently with regard to certain classes of houses in the cities. Suppose A gives a piece of land to B so long as B shall live, but, on the death of B, the land is to revert or go back to A. The interest B has in the land is termed his estate, but, as it is to last as long as he lives, we say B has a freehold estate in the land. The word " estate " has no idea of inheritance in it, neither has it the idea of inheri- tance when qualified by the word freehold, as, ' ' freehold estate." Let us now suppose a second case. A gives to B a piece of land . There is no qualification attached to it. On the death of B it will go to his heir and not revert to A, as in the first example. The estate which B has in the land under the second gift is also called an estate of free- hold. But it is a different kind or class of freehold from the first. The last has in it the idea of inheritance, that is, on the death of the owner it will go to his heir. As neither the word estate, nor the words freehold estate, contain this idea, we shall have to add qualifying words to express it. Hence, when we wish to speak of a freehold estate that has in it the element of inheritance, we term it a " freehold of inheritance," and if we desire to speak of one that has not the element of inheritance, we call it a " free- hold, not of inheritance." We may define freehold or freehold estate, as any estate of inheritance, or one that lasts for the life of the owner. But we have estates that do not last for the life of the owner, as, A rents his farm to B for ten years. A is the owner of the land but B has a present interest in it, and hence has also an estate in the PROPERTY. 179 land. As his interest or estate is limited to ten years it would have been considered beneath the dignity of a free- man to have accepted it in England, and so it was termed, "an estate less than a freehold." Such an estate as given by the last example is called an " estate for years." If A says to B, " Go on my farm and live there till I tell you to leave," B will have an estate in it less than a freehold and one which is termed "an estate at will." In the estate for years B is called a tenant for years, and, in the last example, a tenant at will. We have seen that all kinds of estates are spoken of as freeholds or less than freeholds, and that free- holds were either, "not of inheritance" or "of in- heritance." Freeholds of inheritance are spoken of as "fees." The meaning and origin of the word fee have already been given. The word fee is the first term we have used that carries with it the idea of inheritance. When we speak of an estate in fee we mean an estate of inheritance. Here it will be necessary for the student to give close attention for we are now to speak, not of the idea of estate, but of the idea of inheritance. Suppose A gives absolutely and unconditionally to B a farm. Such a gift under the feudal system would have been called "an allodium," that is, B would owe neither fealty, allegiance nor service of any kind to A. If A preserved fealty and allegiance it would be called a feud or fee. But we have changed these names so that now we call that a fee which before was called allodial. The word allodial is not now generally used, and the jvord fee has not now its old mean- ing but the new one of allodial. However, in some of the States by statute the estates have been declared to be allodial. Keeping in mind the example just given of A's absolute and unconditional gift to B of his farm, let us suppose another case. C makes a gift to D of a farm, but attaches to it this qualification, namely, that on the death of D the land is not to go to his heirs generally, that is, to 180 ELEMENTS OF LA W. his eldest son, and, if D should have no son, then to his daughters, or, if D should have no children at all, to his brothers, and so on, but that the estate should descend to D's male heirs only. In such a gift the estate in D is perfect, but there is a qualification on the inheritance, so that if D should have no sons, but should have daughters, the daughters cannot inherit the estate because of the quahfication and condition in the gift, that none but male heirs should inherit. Both B and D have received fees, estates of inheritance, but B's is called an estate in fee simple, that is a fee unqualified, the word "simple" adding nothing to the force of the word fee, while D's estate is termed a conditional fee. Early in the history of the law of real estate in England the term conditional fee was changed to that of estate in "fee-tail." The cause and reason of the change is of no importance in such a work as this. Neither will it be expedient to speak of the different kinds of fee-tails. Suffice it say, that they are as odious and burdensome as the doctrine of primogeniture. The laws of the various States have destroyed their existence. There remains, however, another kind of fee to be mentioned. If A gives to B and his heirs an estate so long as they live on it, B and his heirs take an estate in fee, but the fee is qualified ; that is, when B dies the estate descends to his heirs in the same manner as an estate in fee simple, but they must live on the estate or it will no longer be theirs. Neither B nor his heirs have the power to sell the estate to a stranger, for if they do they break the qualification and the estate reverts to A. If the heirs are not willing to remain on the estate, it will revert to A as soon as they leave it. But so long as they remain on the estate it is as perfect a fee as a fee simple. There are many other kinds of qualifications but the same rule of law applies, namely, if the qualification is broken the estate will revert to the party from whom it was received. Such are lands given to school districts for school purposes. So PROPERTY. 181 long as they are used for school purposes the fee is in the school district, but as soon as they remove the school house to another site, the land will revert to the ones who gave it to the school district, for school purposes. The person to whom the land would revert is technically called "the reversioner." The same is true of the gift of lands for churches, parks, public gardens and so on. Such fees are termed " qualified or base fees " because there is a condition or qualification attached to them which if not observed has the power to determine, or put an end to the estate. Such an estate, was said to be too base for a freeman to accept. We are now prepared to make another refinement on the word estate, and this, likewise, will require close atten- tion. Suppose A owns a farm in fee simple. He rents, that is, leases it to B for ten years. B has an interest in the land for ten years, this interest is called an estate, and, to give it a term by which all persons may know what kind of an estate is meant when it is spoken of, it is technically called " a particular estate. " A still has an interest in the farm but his interest is in abeyance, that is, suspended, till the ten years of B's interest expire. A's interest or estate is technically called "estate in reversion," because the remainder of the estate in fee simple, after the particular estate expires, reverts or goes back to A. The sum of the particular estate and the estate in reversion equals an estate in fee simple. A is termed "the reversioner " and B is termed "particular tenant." If A were to give a piece of land to B for ten years, or for B's lifetime, then the remainder of his, A's, interest to C in fee simple, C would be said to have an estate in remainder because it is the part left of A's fee simple after taking out B's particular estate. If B's estate was to last only ten years it would not be a freehold, but if it was to last for life, B would have a ' ' par- ticular estate of freehold." The sum of the "particular estate" and the " estate in remainder " must equal a fee 182 ELEMENTS OF LAW. simple, that is, the estates of B and C together amount to all the interest that A had in the land. B is called the "particular tenant" and C is termed the "remainder- man. " The difference between a reversioner and a remainder-man is that the reversioner is always the one who grants out the particular estate, while the remainder- man is the one to whom the remainder of the grantor's es- tate is given after the expiration of a particular estate, or estates, as the case may be. That the student may have before his mind a complete analysis of what has been said so far, the following reca- pitulation is added : An estate is any interest in lands. Estates are of two kinds, freerholds and less than free- holds. Estates less than freeholds are interest in lands for a cer- tain number of years or at will. Estates of freeholds are of two kinds, freeholds of inher- itance and freeholds not of inheritance. Freeholds not of inheritance are all estates for life. Free- holds of inheritance include all kinds of fees, namely, sim- ple, conditional or fee-tail, qualified or base. An estate in remainder in fee is also a freehold of inheritance ; so is an estate in reversion. But a particular estate may be or may not be a freehold. Tenant is one who holds lands. There are several classes of tenants each named from the kind of estate that he holds, namely, tenant at will, for years, in tail, in fee, and particular tenant, as well as reversioner and remainder-man. Real property under the common law was spoken of as lands, tenements, and hereditaments. The meaning of land has been given. Tenement is a word of a broader mean- ing and includes anything of a permanent nature that may be held of another. It includes simply a house or rooms in a house as well as land. The word hereditament is wider still than tenement and means anything that may be PROPERTY. 183 inherited, that is, anything that on the death of the owner', will descend to the heir. Under the common law nothing was inherited but realty, except a few things termed "heir- looms. " Now as all kinds of property are inheritable in the United States, the term hereditaments is as wide as the term property. How real property is to be conveyed from the seller to the purchaser. The student will remember that in the chapter on con- tracts, it was stated that section fourth of the Statute of Frauds required certain contracts to be in writing or they would not be enforced. One of those contracts was " any contract or sale of lands, tenements, or hereditaments, or any interest in, or concerning them, must be in writing and signed by the party sought to be charged therewith. " Such writing, when it is to witness the sale and transfer of the fee, is what is usually known by the term deed. The writing containing the contract by which one gets an estate or interest in lands less than a fee is called a lease. We shall speak of each of these instruments in their order be- ginning with deed. A deed, in the sense in which we are now to use the word, is a writing by which is conveyed an estate in fee, in lands, in tenements, or hereditaments. Mr. Blackstone defines deed so as to include the conveyance of any free- hold. The major part of all deeds in Ohio are in print and all that is necessary is to fill up the blanks with the names of the parties, a description of the property to be conveyed, and any and all conditions of the sale. As it is not expe- dient or safe for the parties to write their own deeds, and as blanks are usually kept by persons duly authorized to take the acknowledgment of deeds, we shall not put any copy of a deed in this work, but shall content ourselves with giving a description of the instrument and what are its legal requisites. 184 ' ELEMENTS OF LA W. Let us suppose A is owner in fee simple of a piece of land which B desires to purchase. To gratify this desire and make B the owner in fee simple of the land, the fol- " lowing requisites must be perfectly and fully observed, to- wit, (i) Both A & B must be willing and competent to make a contract, that is, neither must be under any legal disability ; (2) The contract of sale must be founded either on a good consideration, such as natural love or affection, or on a valuable consideration, such as marriage, money, or the like ; (3) their contract or agreement must be writ- ten or printed either on paper or parchment; (4) the subject matter of the agreement must be set forth in a legal and orderly manner; (5) the con- tract or deed must be signed by A, the grant- or, as he is called, or by his attorney in fact, ex- pressly authorized by a letter of attorney to sign his name. If A is blind or can not read, it ought to be read to him. If any grantor who can not see or read asks to have a deed read to him, it must be done. If it is not read to him then he ought to refuse to sign the deed, or if he signs it and it was drawn differently than was stated to him, or if it was read to him but read in a different way than it was worded, the deed will be void as to the part misread, if he desires to take advantage of the fraud; (6) the deed must be attested, that is, signed by two witnesses ; (7) it must be acknowledged by the grantor, A, before an officer duly authorized to take acknowledgments of deeds, such as a justice of the peace, a notary public, the County Surveyor, Clerk ofthe Court of Common Pleas, and the Probate Judge; (8) the deed must be delivered by A, the grantor, or by his attorney duly authorized to B ; (9) the deed must then be recorded in the office of the County Recorder in the county within which the land is situated. The law of Ohio in reference to the recording of deeds is as follows: All deeds and instruments of writing for the conveyance or incumbrance of any lands, tenements, or PROPERTY. 185 hereditaments, shall be recorded in the office of the Re- corder of the county in which the premises are situated, and until so recorded or filed for record, the same shall be deemed fraudulent, so far as relates to subsequent bona fide purchasers having, at the time of purchasa, no knowl- edge of the existence of such former deed or instrument. So that if B does not take his deed to the Recorder's office and file it for record before A makes another deed conveying the same land to C who did not know at the time of taking the deed that B's deed was in existence, and C takes his deed to the Recorder's office and files it first, B's deed will be of no account, and in the eye of the law is declared to be fraudulent. It is a good law. It will make slothful men diligent in business at least once in their lives, or else run the risk of losing the lands which they have purchased. Having now spoken of the requisites of a. deed we will next speak of its formal parts. ( I ) The first part of the deed which contains the names and residences of the parties to it, the consideration to be given, and a description of the property granted, with any exceptions that may be intended to be made, constitutes what is called the Premises. ( 2 ) The part of the deed which reads, "To have and to hold, etc.," constitutes what is technically termed the Habendum and Tenen- dum. Habendum is a Latin word, and means "to have," and tenendum is also a Latin word, and means " to hold." The office of the second part of a deed is to limit'and define the estate which the grantee is to have, as, ' 'to have and to hold to him and his heirs forever, "shows that the estate the grantee is to receive is a fee-simple. ( 3 ) If the grantor chooses he can make any reservation out of the property granted, that he may see fit so long as it is not wholly repugnant to the intent of the grant. Such a res- ervation, if it be of some new right, that is not a right which was reserved by the grantor from whom the present grantor 186 ELEMENTS OF LAW. received the estate, but one which the present grantor now for the first time creates, is called the Reddendtuu. The word that is now frequently used in place of the Latin one reddendum is reservation. A reservation is to be clearly- distinguished from an exception. If the grantor were to keep one acre out of one hundred, or a shop or mill stand- ing within the limits of the premises to be conveyed, and the like, are examples of an exception. An exception is always a part of the thing itself. If the grantor reserves the right to go at will across a certain field or the farm sold this would constitute a good reservation or redden- dum. It is simply a right to cross the field, but is no part of the field or the property sold ; (4). If there are any limi- tations or qualifications attached to the estate whereby it may be defeated, the part of the deed containing them is called the Conditions. (5) After the condition follows the clause of Warranty. In this clause is contained the grantor's covenant binding himself and heirs to warrant and secure to the grantee and his heirs forever the estate granted. The Covenants that are most commonly found in all the deeds in this country are the following: (i) That the grantor is well seized of the premises described. The word seized means that he has the estate or fee vested in him ; (2) That he has good right and lawfal authority to sell and convey the same ; (3) That the premises are free from any incumbrance, that is, there are no claims against the estate ; (4) That the grantor will protect the grantee in the quiet enjoyment of the same against all persons lawfully claiming the estate, that is, if any person makes a claim to the ownership of the property conveyed, the grantor undertakes to deny his claim and show that it is not well founded; (5) The covenant of general warranty which takes in and comprehends all defects of title whatsoever. (6) After the clause of warranty comes the Conclusion, which mentions the execution and date of the deed. This PROPERTY. 187 clause begins, " In witness, etc.," and is followed by the signature of the grantor. The acknowledgment comes next. By this is meant that the grantor must go before some officer authorized by law to take acknowledgments of deeds, and acknowledge before the officer that the deed is his. If the grantor is married, his wife must also sign the deed so as to convey away her right of dower in the lands sold by her husband. She must also acknowledge her act before the officer and the law requires that in doing so the officer, shall examine the wife "separate and apart from her husbarid " so as to be assured that her act is a voluntary one, and not done under compulsion of her husband. If words mean any- thing they certainly mean that the husband is not to be in the wife's presence when she is examined, but many of the officers are quite derelict in requiring this to be done, making the examination separate, but not apart from but in the presence of the husband. Do'wer. The law gives to the widow of every man, who is possessed of a freehold estate of inheritance, a right to the possession, enjoyment, and income of one-third of of all his land during her lifetime. This right is called the right of dower. She can convey away this right by join- ing her husband in his deed of the lands, but if she sees fit not to sign away her dower, the husband can in no way sell the lands and destroy this right. If the husband sells and conveys the land, and the wife does not join in the deed, and she survives him, she will have a right of dower in the lands conveyed to the stranger the same as if they had not been sold, but had remained the property of her husband. In this country she has a right of dower in estates of lee-simple only as fees-tail are abolished. She has this right in all the lands owned by the husband at the time of marriage, and all that he may acquire after mar- riage, provided, she does not sign away her interest. This estate of dower is a legal one, being given by the law. It 188 ELEMENTS OF LA W. springs up on the death of the husband, and lasts as long as the widow lives, when it falls back into the channel with the other two-thirds. Curtesy. In Ohio, if the wife is the owner of lands and dies before the husband, he has a life interest in all her lands. This right to the possession and enjoyment of all her lands as long as he lives is called the husband's right of curtesy. On the death of the husband the estate will go to the wife's heirs in the same manner as the widow's dower goes to the heirs of the husband. The wife can not' sell and convey her land, and thereby destroy her husband's right of curtesy, any more than the hus- band can by his own act destroy the wife's right of dower. If the husband joins the wife in her deed, he thereby con- veys away his right of curtesy, just as the wife conveys her right of dower by joining in making the deed of her husband. Curtesy, like dower, is only allowed in free- hold estates of inheritance. The husband, when enjoying the curtesy, is called a tenant by curtesy. Rtile of descent in Ohio. If the owner of an estate in fee simple dies intestate — that is, without making any will in which he has devised his estate to some partic- ular person or persons — the law has provided a rule of distribution by which all lands not devised by will shall be disposed of. Each State provides its own law of distribu- tion. We shall confine our statement to that found in Ohio. By the law or rule of distribution is meant the statute which designates the persons who are to receive the estate and also the order of succession in which they are entitled to it. Suppose A is possessed of two farms, one of which he received from his father or mother as a gift, or it descended to him on their death, and the other he purchased and paid for himself The first one is tech- nically called an ancestral estate, because he received it from his ancestors ; the second is technically called a non- ancestral estate, because his ancestors never owned it. The PROPERTY. 189 rule of descent that applies to each of these kinds of estate is different and must be stated separately. Rule of descent for Ancestral Estates. i. The estate shall descend to the children of the intestate. If the intestate had children, but who are now dead, the estate will pass on to the grandchildren of the intestate. 2. If the intestate had no children, and he or she was married, then the estate will go to the widow of the intes- tate, or, if the wife is the intestate, to the husband, for his or her natural life. 3. If the intestate was not married, or, if married and his or her husband or wife is dead, or on the death of the widow or husband, as provided for in rule two, then the estate goes to the brothers and sisters of the intestate who may be of the blood of the ancestor from whom the estate came to the intestate, whether the brothers and sisters be of the whole or half blood of the intestate — that is, it makes no difference whether the brothers and sisters be of the same both parents or not, so that they each have the blood of the same ancestor from whom the intestate received the estate. If the brothers and sisters are dead, but have left children or grandchildren, the estate will descend to them. 4. If the intestate had received the estate as a gift from his ancestor, and the ancestor who made the gift is still living, after rules first, second and third have been applied and the estate is not yet disposed of, then it will ascend or go back to the ancestor who gave it to the intestate. There are several other provisions, but, as they grow very intricate and require considerable information on the subject on the part of anyone to fully understand them, it will not be expedient to give them in this work. Suffi- cient rules are stated to dispose of by far the greatest number of ancestral estates. An example will make these rules all clear : A is married to B, by whom he has two children, C and D. B dying, A marries E, by whom he 13 190 ELEMENTS OF LAW. has two children, F and G. E had been married before, and had two children, X and Y. C marries H, by whom he has one child, S. Now, suppose C has an ancestral estate and dies intestate. By rule one, the estate will go to S. If S is dead, then, by rule two, the estate will go to H for her lifetime. On the death of H, or suppose she had died before C, by rule three the estate will go to D, F and G. X and Y will not get any share of the estate, although they are half brother and sister of F and G; yet they are not half brother and sister of C, because they have none of the blood of the ancestor A, from whom the estate came, in their veins. If D, F and G are dead, and have left no legal representatives, by rule four the estate will go to A if he is still living; if not, it will be quite accurate to say that rule one, two and three will be applied over again, beginning with A in place of C. Rule of descent for Non- Ancestral Estate. The rules for this class of estates are: 1. The estate shall descend to the children of the intes- tate and their legal representatives. 2. If there are no children, or their legal representa- tives, the estate shall pass to and be vested in the husband or wife, relict of such intestate. The relict means a widow or widower. 3. If the intestate leaves no husband or wife relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood and their legal representatives. 4. If there are no brothers nor sisters of the intestate of the whole blood, then to the brothers and sisters of the half blood and their legal representatives. 5. If there are neither brothers nor sisters of the whole or half blood, or their legal representatives, then the estate ascends to the father, if he be living ; if not, then to the mother of the intestate. There are further rules, PROPERTY. 191 but they will not be stated for the same reasons as given under ancestral estates. The student will see that the rules differ greatly. In the case of an ancestral estate the husband or wife, relict of the intestate, receives only a life estate, while in the non- ancestral estates she receives the fee. Again, that in ancestral estates the brothers and sisters of the half blood stand on the same footing with the brothers and sisters of the whole blood provided they have a common ancestor, but in non-ancestral estates half brothers and sisters do not stand on the same footing with the whole brothers and sisters. Mortgages. It will be necessary in this connection to speak a few words about mortgages. When the owner of land borrows money, the safest security he can give is to pledge his land for the payment of the money. That is all that is now meant by a mortgage. A mortgage is defined to be the conveyance of an estate or property by way of pledge for the payment of a debt, and to become void on the payment of the debt. The instrument called a mortgage is composed of two parts. The first part is an ordinary deed, called the conveyance; the second part, which con- tains the conditions which, if performed, will render the first part or conveyance void, is called the defeasance. Since the first part of a mortgage is a deed, it requires the same formalities to make and execute a mortgage as are required to make and execute a deed. It will not be necessary to say anything more concerning the first part of a mortgage. If the conditions of the defeasance, or the second part, be fully performed there can arise no trouble ; if not per- formed, the parties must seek the aid of the courts, and hence it will not be expedient to speak of the manner of foreclosing the mortgage as it is called. In this section we can only explain a few points of inter- est and give a few definitions. The owner of the land 192 ELEMENTS OF LA W. and the one who gives or executes the mortgage is called the mortgagor. The one who lends the money and to whom the conveyance or mortgage is made is called the mortgagee. As the first part of the mortgage is a deed that conveys the land of a mortgagor to the mortgagee, the early opin- ion of the English law was that the mortgagee was the owner of the land subject to lose the title if the mortgagor performed the conditions, and that in the meantime the mortgagee could take possession of the land. But quite a different opinion is held to be the law at the present time. The law now is that the first part of the mortgage, although an absolute conveyance in form, does not trans- fer the title of the land from the mortgagor to the mort- gagee. The courts treat the conveyance part of the mort- gage simply as ^pledge of the land, so that the mortgagor is still the legal owner of the land until he forfeits it by a breach of the conditions. The mortgagee has no right now to the possession of the land. Besides giving the mortgage on the land it is the general custom for the mortgagor also to give his promissory note for the pay- ment of the debt. If he gives only the mortgage the mortgagee has just the land mortgaged pledged for the payment of the debt. If he has the promissory note of the mortgagor secured by the mortgage, then he has not only the land mortgaged, but all the other property of the mortgagor made liable for the payment of the debt. On this point Mr. Willard in his work on Equity Jurispru- dence says : "A mortgage may contain a covenant from the mortgagor for himself, his heirs, executors and admin- istrators, to repay the money borrowed with interest." The general practice is to take a separate bond, or promissory note for the payment of the sum to be secured by the mortgage. The mortgage usually contains a power of sale authorizing the mortgagee or his assigns or personal representatives, on non-performance of the conditions of PROPERTY. 193 the mortgage, to sell the premises at vendue to the high- est bidder, and to convey the estate to the purchaser, ren- dering the surplus money after paying the debt and the costs, to the mortgagor, or his assigns or personal repre- sentatives. An instrument conveying lands by mortgage is no less a mortgage without a power of sale than with one. If it contains no power of sale and no covenant to pay, and is accompanied by no obligation, promissory note, to pay, the only remedy of the mortgagee is con- fined to the lands mentioned in the mortgage. A mort- gage can be sold and assigned to the purchaser who stands in the same relation and has the same rights as the mort- gagee. The sale of the mortgage being an agreement to sell and convey an interest in land must be in writing. This is usually done by endorsing on the mortgage itself a statement to that effect. The following is a short form of assignment of a mortgage : Ada, Ohio, May 22, 1886. For value received, I hereby assign and transfer to W. IT. Dean all my title and inter- est in and to the within mortgage and mort- gaged -premises, and the notes therein de- scribed. In witness whereof, I have hereunto set my hand this 22nd day of May 1886. W. T. SMITH. If the mortgage is given to secure the payment of the promissory note the note is the principal thing, and the mortgage is secondary or accessory. If, therefore, the note is transferred, the mortgage is also transferred by the same act, for the accessory cannot exist alone, and hence must follow the principal. Whoever has the legal right to enforce the payment of a note that is secured by a mort- gage has also the right to enforce the mortgage. 194 ELEMENTS OF LA W. When the mortgagor pays the notes secured by the mortgage, that is, performs all the conditions contained in the defeasance, he is entitled to have the mortgage cancel- led. The cancellation of a mortgage may be by a deed of release or by an endorsement on the margin of the record, or on the mortgage itself, which shall be entered on the record by the County Recorder where the mortgage is filed. The mortgagee when he has received the payment of the money secured by the mortgage should endorse on the mortgage a cancellation in some form like the follow- ing: This is to certify that I have received satis- faction in full of the note secured hy the with- in mortgage, and of the within mortgage, and I hereby authorize and direct the Recorder of Hardin County to cancel the same on record. Witness my 'hand this 22nd day of May, 1886. W. H. DEAN. This ought to be attested by at least one witness. The County Recorder when he receives the above notice and order will endorse on the mortgage on record a cancella- tion somewhat like this : This is to certify that I have received satis- faction in full of the money secured hy the mortgage, of which this is the record, and I hereby cancel said mortgage on record. Witness my hand this 22nd day of May, 1886. W. H. DEAN. Attest : H. W. Bowersmith, County Recorder. In drawing deeds, or other legal instruments of writing, great care should be taken to write plainly and legibly. PROPERTY. 195 There should be no erasures or interlineations, but if un- avoidable, make a note of it before the attestation of the witnesses. The date in deeds and mortgages and all papers relating to the same ought to be written out in words, and not in figures, because the date is of so much importance, and if in figures so easily changed that no risk ought to be run by writing them out in figures. A IiCase. A lease is a species of contract for the possession and profits of land and tenements either for life or for a certain period of time. The common word used is rent. We say A rents a farm of B, meaning he leases it of B. In Ohio all leases for a longer period than three years must be executed, acknowledged, and recorded the same as a deed. Leases for a period less than three years need only be in writing and signed by the parties. In drawing a long lease for three years or more, or in drawing a mortgage, or deed, or in short, any instruments of incumbrance that may affect the rights and interests of the parties in after years, the parties ought to secure the aid of one who is skilll:d in that line of business. Personal Property. In section first the word property was defined and the difference between real and personal property pointed out. How personal property is sold is the subject matter of the chapter on sales. Of its origin we have spoken, and there remain but a few points of interest to be noted in this section. A distinc- tion is to be made between the terms "personal prop- erty " and "things personal." The words "things per- sonal," strictly mean things movable, while the words "personal property" include not only things movable, but also mixed kinds of property, partly real and partly personal, which we termed "chattels real." It may seem strange to the student that il A rents or leases his farm to B for ten years, or for one thousand years, that the interest which B has in the land of A should be called personal property. The reason is that nothing is 196 ELEMENTS OF LA W. permitted to be called real that is not both immovable and permanent. The interest which B has in A's land is not permanent, but temporal, that is, there is a limit, a time fixed when it must cease. Again, the land of A is im- movable, but B's right being intangible and invisible may as property be said to be as movable as immovable. It is true that the place where it is to be enjoyed is fixed and sta- tionary, but that is not the right itself. However, let that be what it may, the law is certain that any interest in land less than a freehold is personal property, and, also, that any estate which has a certain time fixed when it must cease is less than a freehold, although that time is not to happen for a thousand years, which is certainly a much longer period than one's life. Personal property may be pledged or mortgaged as a security for the payment of money the same as real estate. Such a mortgage is called a chattel mortgage. Chattel mortgages are not filed with the County Recorder for record as are mortgages of real property, but are depos- ited with the clerk of the township where the mortgagor resides at the time of executing the mortgage, that is if he is a resident of the state, if he is not a resident of the State, then the mortgage must be filed with the clerk of the township in which the property mortgaged is situated at the time of executing the mortgage. But if the mort- gagor is a resident of the township in which the ofifice of the County Recorder is kept, or, if the mortgagor is a non-resident of the State, and the property mortgaged is ■ within the township in which the office of the County Recorder is kept, the mortgage shall be filed with the County Recorder. A chattel mortgage is good for one year only, from the time of filing it with the clerk, unless, within thirty days next preceding the expiration of the said term of one year, a true copy of such mortgage, together with a verified statement showing the interest of the mortgagee in the property claimed by virtue of the SALES. 197 mortgage is again filed in the office where the original mortgage is kept. Before a chattel mortgage is allowed to be filed, the mortgagee, his agent, or attorney, if the mort- gage is given to secure the payment of a sum of money only, shall state thereon, under oath, the amount of the claim, and that it is just and unpaid; if it is given to indem- nify the mortgagee against a liability as surety for the mortgagor, such sworn statement shall set forth such lia- bility and that the instrument was taken in good faith to indemnify against loss that may result therefrom. CHAPTER VII. SALES. Definition and Ulements. There are certain words which imply, from their use, a civilized state of society. Until we have such a society, we can have no use for such words. Such is the import of the word which stands at the head of this chapter. Its very meaning implies that the people who make use of it have advanced out of bar- barism, and semi-barbarism, into a civilized condition. That we may fully understand this, let us take a people, rude and uncivilized, and trace their progress up to the time when we shall find the word sales first used in their vocab- ulary. Where there is no civilization there is no commerce. The people simply exert themselves to secure a living and no more. If there is an abundant production by nature, they live well, if a scarcity, they fare ill. But, in time, we find that they recognize the right of property, and then follows quickly the desire to part with what one may own, that is of no benefit to him, for what would be of a benefit to him, that is owned by his neighbor; How can they accomplish this? They know of no way but to give one article for the other. Each has parted with what he did not 198 ELEMENTS OF LAW. need and secured what he wanted. This transaction is called a barter. But great inconvenience attends this way of exchanging things. Several difficulties arise that are incompatible with commerce and so retard progress towards civilization. First — It is very difficult to find two persons whose disposa- ble possessions mutually suit each other's wants. A sec- ond and more serious difficulty arises from the sense of the great injustice it is to give a thing that is twice as valuable for another of half its value. This would lead, naturally, to the idea of subdivision. If the thing could be divided, and half be given for the other, justice would be done. But this implies the idea of valuation which leads to a higher point of commerce. If one article is twice as valu- able, and cannot be divided, then take two of the other kind. But, suppose only one of the latter kind existed and no division of the former can be made, what then ? Some one suggests the addition of another article of the same worth as the other. But how can you find another article of exactly the same value? Suppose it can not be done, what then? Necessity suggests that they be compared, but compared with what? Again necessity makes a sug- gestion. This time, that a third thing be taken and the others be compared with it, and their worth be fixed in proportion to their relations to the established standard. This is done — great convenience follows — and the more convenient the standards the better the result. And by experience, men have found that the best medium of comparison is what we term money. Money is one of the words that imply an advancement in civihzation. Uncivilized people have no use for such a word. From the use of the word money, in the definition of sales, the student will see that it, likewise, is a word that implies advancement in the scale of civilization. So we see that, until the people were so far advanced as to use a third thing as a standard of comparison in making SALES. 199 exchange of wares, they had in their vocabulary no such word as sale. Definition — A sale 'is the immediate transfer of the prop- erty in a thing for a price in money. Chancellor Kent defines it thus : ' 'A contract for the trans- fer of property from one person to another for a valuable consideration." The words, "valuable consideration, " are objectionable, on the ground that they do not necessarily include simply the idea of " price in money. " His defini- tion includes both " barter " and " exchange, " as well as " sale, " which words we have seen are similar to that of sale but not identical with it, and, therefore, in defining sale, ought to be excluded. Mr. Benjamin gives a better definition than Chancellor Kent, but he classifies property in his definition, which, for our purpose, would not be so clear as to leave the word unclassified, and, for that reason, I have given the above definition. The word property, as used in the definition of sale, means the right a man has in any thing, such as lands, houses, sheep, and the like, to the exclusion of all others. Such right or interest constitutes him the owner thereof. The one selling the goods is called the vendor; the one buying is called the vendee. We shall treat the subject of sales with reference solely to personal property and, in this chapter, not refer to real property except for illustration. Essential Elements. — Certain things must co-exist before we can have a sale. These requisites are termed essential elements for if one be lacking there is no sale. From Kent's definition it will be seen that every sale is a contract and, being such, there must be present every element of a perfect contract. The following are laid down as the elements of a sale : (i) Parties competent to contract; (2) Mutual assent; (3) A thing the property of which is transferred from the 200 ELEMENTS OF LA W. seller to the buyer; (4) A price in money, paid or prom- ised. It will not be necessary for us to say anything on the first and second classes of elements, as they are fully considered under their respective heads in the chapter on contracts. The third is self-evident, for, without the actual or potential existence of a thing, there can be no property, and, without property, no sale. With reference to the fourth element, it is necessary only to add, that, if there is no price in money agreed upon, there is no sale, whatever else there may be of barter or exchange. Sale of a Specific Chattel Unconditionally. If the student has in his hand, or on his book-case, a certain book, say, Milton's Paradise Lost, the only book of that work which he possesses, and I were to buy it, we would call that transaction a sale of a specific article, or "chattel," as the word "thing " or "article " is termed in the law of sales. If I am to pay him the money at once, and he is to de- liver me the book, we term it a sale of a specific chattel unconditionally, but, if the sale be complete, yet before I am to get the book, he is to do something to it, say put a certain cover on it, we term that transaction, a sale of a specific chattel conditionally. Again, suppose I go into a book store and purchase a Milton's Paradise Lost. I do not ask to see the book. There are several standing on the shelf, and I simply ask the price of the work and agree to take it at the price named. Here, it is evident, I have purchased no one particular book of the several that are standing on the shelf, so that I can point to any one in particular and say that is my book. I simply have agreed to accept one of that number in heu of the price in money which I have given to the seller. Such a transaction is termed a sale of chattel not specific. SALES. ^ 201 We shall speak in this section of the first class of sales, reserving the second and third, each for a separate section. The sale of a specific chattel, unconditionally, is often spoken of as a "bargain and sale. " It is the most simple form of sale. A meets B and asks him if he will sell the horse he is riding. B replies that he will. A asks the price. B states it. A accepts. There is a complete and perfect sale. The property in the horse has passed to A and it is B's duty to deliver him over to A. Likewise B has become entitled to the price, and it is A's duty to pay him at once. Let the student observe, distinctly, that it is not neces- sary, either that A pay the price or even tender it to B, or that B hand the rein of the bridle on the horse to A, or offer it to him, before the sale is complete ; for it is complete the moment that A accepts B's proposal. From that moment A can sue B for the horse, and B can sue A for the price. If the horse dies, it will be the loss of A. But, as it is the duty of A to pay the price, the law permits B to keep possession of the horse until A pays him, nevertheless, all the time that he may thus keep him, the property of the horse is in A, and, if he dies in B's possession from no negligence on B's part, he can still sue A for the price on the ground that whoever has the prop- erty must bear the loss. This kind of sale is so simple and so little subject to dispute, that we shall pass it by with no further comment. Sale of a Specific Chattel Conditionally. The class of sales spoken of under the preceding section are said to be executed contracts of sale. As soon as the con- tract is completed nothing remains to be done to pass the property to the buyer. The cases that fall under the next section following are clearly of another class, namely, an executory contract of sale ; and in general the sales that fall under our present section are, likewise, executory con- tracts of sale ; they may be made executed contracts, if the parties so agree. 202 - ELEMENTS OF LAW. There is a very wide distinction between these two kinds of contract of sale. In the executed agreement we saw that the property at once passed at the moment of agree- ment, and the buyer had to bear all losses which might arise. In the executory agreement, the property does not pass, and the seller has to stand the loss. In the first case B sells the horse to A. In the other, he only agrees to sell him. The great question to be determined is, when does the property pass ? As there are two parties to a sale, the conditions upon which the passing of the property depends, naturally divide themselves into two classes, namely, conditions to be per- formed by the vendor or seller before the property passes, and conditions to be performed by the vendee or buyer. In reference to the condition to be performed by the ven- dor, Lord Blackburn lays down two rules. Rule First. Where by the agreement the vendor is to do anything to the thing sold for the purpose of putting it into that state in which the purchaser is to be bound to accept it, the performance of that thing shall be a condi- tion precedent, i. e. a thing that must be done precedent to the vesting of the property. Rule illustrated. A agrees with B to purchase his horse for so much if B will have him shod" on all four feet. Now no property passes on such an agreement, but as soon as the horse is shod then the property passes. Rule Second. Where anything is to be done to the thing sold, for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the thing sold, the performance of these things also shall be a condition precedent to the transfer of the property, although the individual thing be ascertained, and it is in the state in which it ought and must be accepted. SALES. 203 Rule illustrated. A is a drover and contracts with B for the sale of his cattle at a certain price per pound, to be weighed at a certain place. Until B takes the cattle to that place and they are weighed, the property in them still remains in B and he can sell them to C and convey the property in them to him, but B would render himself liable to A in damages for a breach of his agreement to sell to him. The rule that governs the performance of the condition by the vendee or buyer is stated by Benjamin thus : Rule Third. Where the buyer is by the contract bound to do anything as a condition, either precedent or concur- rent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been delivered into the pos- session of the buyer. Rule illustrated. A agrees with B for the sale of his horse for a fixed price to be paid at a fixed future time. It was expressly agreed that A should take possession of the horse, but the property was to remain in B till the price was paid. Here the payment of the price by A is a con- dition precedent and must be performed before the prop- erty passes to A. If, the horse dies in the meantime, without any negligence on A's part, B must bear the loss. They may agree, of course, that if the horse should die in the meantime, A should bear the loss and the price would fall immediately due. That the student may know how difficult it is to express with any degree of certainty an opinion upon a given statement of facts, I add the following example as a specimen : Under rule second, it was stated that the property did not pass until the cattle were weighed. The weighing being a condition precedent to the passing of the property. Now take this case stated in the language of Justice Strong, of New York : " If a flock of sheep is sold 204 ELEMENTS OF LA W. for so much a head, and it is agreed that they shall be counted after the sale in order to determine the entire price of the whole, the sale is valid and complete." The sale being complete the property .would pass before the counting, which, according to Strong, is not a condi- tion precedent but subsequent, simply to ascertain the amount of the price. The cases seem to be identically similar, but how different the conclusions, and the conse- quences derived from them. In the case under the rule, if the cattle should die, be- fore being weighed, the loss falls on B ; in the case stated by Justice Strong if the sheep should die, before being counted, the loss falls on the buyer. Chancellor Kent, upon this point says, ' 'that if the goods be sold by number, weight, or measure, the sale is incom- plete, and the risk continues with the seller until the spe- cific property be separated and identified. " How easy it would be to set at rest this vexed question, if the vendor would say to the vendee, "You can have the flock for so much a head, and the property will pass at once to you, but I will keep them, at your risk, till you can count them and ascertain the amount of the price ; " or, sup- pose the vendee to say, ' ' I will give you so much a head for the flock, the property in them remaining in you till tJiey are counted. " A few simple words, to express the intention of the par- ties, are easily spoken, and might save hundreds of dollars spent in lawsuits, and, what is more valuable, the friend- ship of a neighbor or an old friend. It can not be too often reiterated that, in all contracts, be sure and have a full and complete understanding. Know exactly what the other party understands the terms to be, and let him know exactly what you understand them to be. Sale of a Chattel not Specific. The agree- ments that fall under this class are purely executory. There is no sale, but an agreement to sell. There remains SALES. 205 something to be done to convert the executory agreement to sell into a complete bargain and sale, so that thereby the property passes. That something, or act, is termed subsequent appropriation, by which term is meant the act by which the heretofore unascertained and indefinite arti- cles are made specific and certain. To illustrate: I pur- chase of you ten volumes of Milton's Paradise Lost. You have fifty volumes on the shelf. You are to send me my ten volumes by express. When you take ten volumes from the shelf, box them and express them to me, you are said to make an appropriation of the specific goods to the contract, and have changed thereby the executory agreement into a perfect sale. I can now say with cer- tainty which books are mine. Subsequent appropriation seems very simple, indeed, but let a few questions be put, and see how it seems then. Suppose the books to be destroyed (i) before being taken from the shelf; or (2) being taken from the shelf, destroyed before being boxed; or (3), being boxed and marked and given to a drayman to take to the express office, and destroyed before being received by the express company; or (4), being received by the express company, destroyed before I received them. Who would have to bear the loss? In the first case the loss will fall on you, because you have done nothing to designate the specific ten books which are to be mine. If ten books were saved out of the fifty, how could you say that they were the ones which I was to have? In the second case the loss will, likewise fall on you, because, while you have taken certain ten of the fifty books from the shelf, there is nothing to hinder you, if a purchaser enters the store and desires to purchase ten copies of Milton's Paradise Lost, from handing him over those copies. This you could not do if, by the act of taking them from the shelf, you make an appropriation, 14 206 ELEMENTS OF LAVP. for appropriation completes the. sale, and the sale vests the property in me, and, then, how could you sell my books? In the third case two conditions may exist, and, in order to make it perfectly clear, we will speak of them sepa- rately : First. Suppose the drayman to be given the box, with orders to convey it to the express office, but you intend to go to the express office and take the receipt for the goods yourself. In such circumstances the drayman is in effect your servant, and hence under your control. If the goods are lost on the way, j'ou must bear the loss. Why? Because the drayman, being your servant, simply had the custody of the books, which still remained in your posses- sion — not physical possession, of course, but legal pos- session — and you had the power to order him to bring back the books, and, after they were so brought back, you could have sold them and sent me other ten books. This you could not have done if there had been an appropria- tion. Second. Suppose the party taking the books to the express office to have been the express company's collect- ing agent, or a licensed drayman who had given you a receipt for the box and would take the express company's receipt himself, and then the books were lost. The loss would fall on me, because you had put the books beyond your control. It is that which amounts to an appropria- tion. So long as you had it in your power to change the books and send others in their place there was no act that amounted to an appropriation, but, as soon as you do an act that puts the books out of your control, the appropriation is complete and the property vests in me. The fourth case is similar to the second condition supposed under the third question. The difficult question to be determined is, What act amounts to a subsequent appropriation ? Every case must be determined by itself. No absolute rule can be laid SALES. 207 down. The general rule is : The property never passes till the uncertain goods become distinguished and specific. There are some exceptions to the rule, but, from their very nature, they can work no harm. They arise from com- mercial necessity, and are easily recognized and explained. To illustrate: Suppose four men, A, B, C and D, each place their grain in a large grain elevator in Chicago, A putting in his grain first, B next, C next and then D . Each put in grain of the same grade and quality, and receives a receipt for the same from the owner of the ele- vator. B desires to sell his grain, or a part of it, before A desires to part with his. As A's grain is beneath B's grain, and C's and D's above it, how can he sell it? The grain is not specific. He can not point it out to X, the buyer. He «iust sell a chattel not specific, and then make an appropriation of it. But how can he make an appropriation? Must A take out his grain first, and then B remove his amount, to make an appropriation? It would be necessary so to do if the law required that X receive the identical grain which B put into the elevator. This the law does not require because of its great imprac- ticability. It does not require A to remove his grain from the bin to get at B's, but, as A's grain is of the same qual- ity as B's, it requires X to accept the first grain taken from the elevator as an appropriation to his contract. This is, of course, A's original grain, but the rule of law is that, as soon as A, B, C and D place their grain in the bin, they cease to own the grain they put in, and get in place of it a certain part of the whole amount. Each, then, own a fourth of the amount in the bin, supposing each put in the same amount. B will take from the bin one-fourth of the whole number of bushels, and this will belong to X. If X does not desire to use the grain, but wishes it to remain in the bin, then the law will permit B to make a good delivery of the grain to X by delivering to 208 ELEMENTS OF LAW. him the receipt for the deposit of grain which B received from the owner of the grain elevator. It will be seen in these cases, that the property passes although there has not been a specific chattel sold. It is a case where the sign has been permitted to stand for the thing signified. Such a delivery is termed a symbolical delivery. Effect of Fraud on the Sale. It is a well estab- blished rule of law that no man is bound by a bargain into which he has been led by fraud. In the chapter on con- tracts, we learned that fraud cuts down all contracts. The contract is rendered voidable. The party upon whom the fraud was practiced can take advantage of it and rescind the contract, and receive back his goods, thus sold, from the vendee. The party who practiced the fraud can not take advantage of it and rescind the contract, for the law will not permit him to take advantage of his own wrong. It was stated in speaking of frauds in the chapter on contracts, that, although fraud has been stated to be ' ' every kind of artifice employed by one person for the purpose of deceiving another," the courts have never de- fined it. They content themselves with passing upon the particular case, and determine whether or not the acts complained of are, in their nature, such as the mind of men generally term fraud, and, if so, they give it that name, and treat the contract as one tainted with fraud. The subject of fraud will be treated of, in this chapter, only in its effect on passing the property in goods, which form the subject matter of a contract tainted with fraud. And, first, of the effect of fraud, practiced on the ven- dor, in passing the property in the goods to the vendee. The first thing the student must attend to is to distin- guish clearly the difference between the delivery of the pos- session only of goods, and the delivery of both the property and possession. The owner of goods may keep the pos- session of goods, and yet deliver the property in them, or, SALES. 209 he may deliver the possession of the goods and keep the property in them. An example will make this clear. A is the owner of a horse. He sells him to B, but keeps possession of the horse till he receives his purchase money. Here the property in the horse passes to B, and A keeps \}at. possession of him. Again, he hires the horse to B, who by the contract of hire gets possession of the horse but not the property in him. Hence, the following rules: Rule First. If the vendor, when he parted with the goods, intended to deliver both the property in them and the possession of them to the person who committed the fraud on him, however fraudulent the device, the property in the goods will pass to the vendee. Rule Second. If he did not intend to pass both the property in them and the possession of them, but only the possession of them, the property in them does not pass to the vendee but remains in the vendor. The effect of these rules is, respectively, as follows : First. If A sells his horse to B, according to the facts stated in rule first, B, having the property in the horse, can sell him to C and pass the property in the horse to C absolutely, provided C buys the horse in good faith, not knowing of the fraudulent manner in which B secured the horse of A. So long as B retained the property in the horse A could rescind the contract of sale on account of the fraud, and thereby regain the property in the horse. But, if he neg- lects to rescind the sale before B parts with the horse, his right is gone. The reason of this rule is this, no one can pass the property in anything to another, but the owner, or his agent. The intent must go with the act to pass the property. If the intent and the act are found to co-exist, the property passes, no difference how the intent was se- cured, or the act brought about. A performed the act and had the intent ; consequently, the property passed to B. 210 ELEMENTS OF LA W. Whoever has the property is the owner and can sell it. Hence, B can sell to C and pass the property. This rule and the reason on which it rests, grew out of the necessity of commerce. When we sell land, the law requires that a writing, called a deed, be signed by the parties, for a witness of the sale and conveyance, and that the deed be recorded. When we wish to know who is the owner of a certain tract of land, we go to the County Recorder's office and look at the record. But it is impos- sible to have such a law of record in reference to the sale of personal property. Here possession is, prima facie, the evidence of ownership. If the law permitted A to rescind the contract at any time, what an inconvenience he could inflict on commerce. Business could not be done with certainty, if one were permitted to rescind the con- tract, no difference who might have possession. So, for the security of commerce, the law has said that A can rescind, if B is still in possession, but, if C is in possess- ion, he can not rescind, because the law said to C / will protect you in your property, if you get it from B, no differ- ence how he secured the property, so long as you do not know how he secured it. The rule is perfectly just. It makes A circumspect and watchful, and, as soon as he discovers that he has been defrauded, it prompts him to immediate and energetic action. Second rule, if A did not intend to pass the property in the horse to B, but the possession, only, then, if B sells the horse to C, no property in the horse passes to C be- cause B has no property in the horse to pass ; for there was no intent, on A's part, to pass the property to B, and where there is no intent coupled with the action there is no passing of property. In such a case, A can reclaim the horse from C, and C must look to B for damages. It is a settled rule of law that, if the buyer, when he purchased the goods, does not intend to pay for them, it is such a fraud on the vendor that he may, if he desires to SALES. 211 do SO, rescind the sale, but, nevertheless, the property passes. If, however, the vendee persuaded the vendor to part with the goods on credit, by making false and fraudu- lent representations as to his own solvency and means of payment, no right of either property or possession is acquired by the purchaser, and the vendor would be justi- fied in retaking his property at any time, provided he could do so without violence or breaking the law. This rule is necessary for the protection of commerce. If, at an auction sale, the buyer deters others from bid- ding, it is such a fraud on the vendor as to avoid the sale. One person may bind himself not to bid against another and he commits no fraud on the vendor by so doing. If, however, from the magnitude of the sale, one person is not able to buy the thing offered, or, where the quantity offered to a single bidder exceeds the amount which any one single individual might wish to purchase on his own account, there is no fraud on the vendor, if several agree to pur- chase the whole amount and that a certain one, only, of their number, should do the bidding. Second. Effect of fraud practiced on the vendee. The vendee possesses the same right and power to rescind a contract as is possessed by the vendor. If the vendee discover the fraud before delivery of the goods to him, he may refuse to receive them ; if, after he has received them, he can return them, provided he can return them in as good a condition as he received them. That the goods are in the same state or condition as they were when they were received, is an indispensable condition to the right to rescind, by the vendee, after he has received the goods. If he has altered them, in any manner, so that he can not rescind the sale, he can, however, sue the vendor for deceit, and get damages. The contract is only voidable, and, if the vendee chooses, he may elect to affirm the sale after he has discovered the fraud, and recover damages for the fraud. 212 ELEMENTS OF LAW. Warranty. The word warranty is one that is bandied about so often and so glibly, by all classes of persons, in reference to every kind of sale, that it seems almost like an insult, to ask one, if he knows what the word means. If the student will give attention, he will discover the source of many a lawsuit and unfounded charges of a lack of veracity hidden away in the meaning of this word. There are four things connected with sales which are so intimately connected that they afford an arena for strife and contention, among the courts, as to their meaning, and also the marks by which they may be designated. They are the subjects of representation, war- ranty, conditions and fraud. Where representation is changed into fraud, or when a condition is precedent or independent, are such profound questions, that we will not undertake to discuss them. We will content ourselves with a few considerations on the subject of warranty. A warranty is a eot/ateral undertaking, forming a part of the contract by the express agreement of the parties, ex- press or implied. There can be no' collateral undertaking without there being first a principal undertaking. In every contract of sale that contains a clause of warranty, the principal under- taking is the contract of sale, to which is annexed the col- lateral undertaking of warranty. It is clear that the contract of sale can exist independ- ent of the warranty, hence, a warranty can not be one of the elements of a sale. That being true there can be no warranty, unless, by agreement express or implied, the parties to the sale see fit to make a warranty and permit it to form a part of the contract of sale. Kinds of Warranties. There are two kinds of warranties, express and implied. An express warranty is one where the vendor covenants or undertakes to insure that the thing sold is or is not in a certain state or condl- SALES. 213 lion as, that a horse is sound, or, that a cargo of goods are in a merchantable condition. An implied warranty is one which the law implies from the mere fact of the sale. Subject matter of fvarranties. Warranties are divided into two classes in reference to their subject mat- ter, namely, warranty of title, and warranty of quality. As to the first class. It is very important to the buyer that the seller possesses the title or property in the thing sold, else after purchasing the article another may come and claim the thing to be his and take, it away from the buyer. If one does not possess the title to a thing he can not sell it and convey a title. One can not convey that which he does not possess. In reference to the implied warranty of title the law has laid down the following rule : If the vendor, or his agent, is in possession of the thing sold, at the time of the sale, there is an implied warranty that he is the owner, and has a good title to the thing sold which he can convey to the vendee ; but, if he is not in possession of the thing sold, there is no implied warranty of title. If the buyer does not like to rely on the implied war- ranty, he can demand an express one. Where there is an express warranty, there can exist no implied one. As to the second class. The spirit of the law is in favor of men exercising their own judgment and good common sense. The law implies no warranty of quality from the mere fact of the sale. Unless there has been some statement made by the vendor, which the courts can reasonably con- strue as misleading enough to deceive a reasonable man, it will give no redress, no difference how badly "sold" the buyer may be. The rule of law is summed up in the phrase caveat emptor, i. e., let the buyer beware. In a more general expression, it means, when you purchase the rights of 214 ELEMENTS OF LA W. another you ought not to be ignorant of what they are. If you are ignorant, ask for information, which, if given to you falsely, will make your informer responsible to you in damages. Either the doctrine of caveat emptor or caveat venditor, i. e., let the seller beware, must exist. If the first, then there can be no implied warranty; in the second, there is always an implied warranty of quality. The latter puts a prize on ignorance and laziness, and makes indolence a virtue; the former arouses to action, stimulates the mind, and makes a far-seeing and discriminating judgment the badge of a good business man. The law has properly chosen the former, caveat emptor, and the student must bear in mind that when he purchases anything, from cloth- ing to a pin, there is no implied warranty from, the m.ere fact of sale. Let the correct statement of the rule be carefully borne in mind. It is not, there is no implied warranty of quality, but, there is no implied warranty of quality from the mere fact of sale. So, then, we have some implied warranties of quality; and we shall now proceed to speak of them. I '. If anything is ordered for an express purpose, and that purpose be communicated by the buyer to the seller so that he knows that his judgment is relied upon to fur- nish an article suitable for the use to which it is to be applied, there is an implied warranty, that the thing fur- nished will be reasonably fit for that purpose. 2. If goods are sold by samples, there is an implied war- ranty that the goods will correspond to the sample. There is a fine distinction taken between samples shown by a jobbing house, and the sample shown by the manufacturer. In the former case, there is no implied warranty that the sample is free from defect, so that, if the sample is defec- tive, and the goods are likewise defective, but not more so than the sample, the buyer must accept them. Caveat emptor, \. e. ,let the buyer examine the quality of the sample. SALES. 215 In the latter case, there is an implied warranty that the sample of the manufacturer is free from defect, and, if it is not, and the goods do correspond with the sample, the buyer need not take the goods. Caveat venditor, i. e. , let the manufacturer see that his samples are free from defect. Why this difference? In the first case, the jobber must use his own judgment as to the quality of the sample, and may be as easily deceived, by some latent defect, as the party to whom he sells, who had as good a right to rely on his own judgment as the jobber had on his judgment; besides, the defect may have been one that no one could detect but the manufacturer. In the rule requiring the manufacturer to warrant, there is a motive to keep him from doing defective work on those parts that can not be seen, and, thereby, defraud the public by a willful act of wrong; whereas there can be no willful act of wrong in the case of the jobber. This is an example where the exception in favor of caveat venditor is just and necessary, and no injury can come from it. 3. There is an implied warranty in all sales of provisions for domestic or immediate use. This warranty exists only in the case where they are sold directly to the consumer for his own use. It does not exist when the provisions are sold from one grade of merchants to another who is to retail them. This rule is just and proper in the highest degree. Without it the mind can not conceive of the quantities of unwholesome provisions that would be sold daily. Health and life depend upon this exception to caveat emptor, and thereby render it a just and proper exception. 4. The doctrine of caveat emptor never applies where the seller has used any means to mislead the judgment of the buyer, or in any way induce him not to inspect the article, or put him off his guard in any manner. 216 ELEMENTS OF LA W. It requires but little time and cost to provide a day book. Every time you buy anything, and do not want to rely on your judgment, ask for an express warranty, write it down, and have the seller to sign it. It will take but a minute, and may save much trouble. The entry can be kept in some such form as this: Jewett, Ohio, April 26th, 1886. Thereby agree to warrant, and do warrant, that the horse, Dona, that I now sell to Joseph McCullough, is sound. This warranty forms a part of the contract of sale. '^ ' R. D. LEE. No trouble can ever arise on this sale. It makes no difference what may have been said at any time before the sale. It can not be taken as a part of the warranty unless it is stated at the time of the sale also. What was said before the sale will be looked upon as an inducement held out to arouse the desire of the purchaser, and not to be taken as a warranty, unless it is expressly or impliedly made a part of the contract of sale. If the warranty is made after the sale there must be a new con- sideration to support it. There can be no such a thing as an implied warranty made after the sale. We will now present a few words and phrases that have been used as warranties; and give the construction which the courts have put upon their meaning and use. First observing that warranties with reference to their scope are either general or special. A special warranty has reference simply to one fact or thing, as, "the horse is not lame. " This is no warranty against blindness and the like. A general warranty takes in every point in which there may be a defect. It, of course, does not usually cover those defects that are apparent on simple inspection requiring no skill to detect them, nor to those known by the buyer to exist. For example: It would seem an act SALES. 217 of Stultification to presume that a general warranty covered a defect so patent as the absence of ears on a horse ; but, as there is no limit that can be fixed beyond which agree- ment can not be made, a warranty may be so worded as to cover the most patent defect. One of the most common general warranties in the sale of horses is, "The horse is sound." What is meant by "fbundness" of a horse? What things are included and what excluded? The best definition given of the word "soundness" is that of Baron Parke, of England. He says : "I have always considered that a man who buys a horse warranted sound must be taken as buying him for immediate use and of being immediately put to any fair work the owner chooses. The rule as to unsoundness is, that if at the time of the sale the horse has any disease, which either does diminish the natural use of the animal so as to make him less capable of work of any description, or which in its ordinary progress will diminish the natural usefulness of the animal, or if the horse has, either from disease or accident, undergone any alteration of structure that either actually does at the time, or in its ordinary effect will, diminish the natural usefulness of the horse, such horse is unsound." The following things have been held as making a horse unsound: Any organic defect, such as a horse being " nerved," "bone spavin," " ossifi.cation of the cartilages," "thick wind," a temporary lameness that renders the horse unfit for immediate use, and a cough, unless proved to be of a temporary nature. "Crib-biting" is not an unsoundness that comes under a general warranty of soundness. It is a vice, and will be covered by a general warranty against vices. It is a general impression that a " sound price " creates a warranty against all defects. This is a mistake. South Carolina and Louisiana are the only States in which such a rule has ever been applied. 218 ELEMENTS OF LAW. It is the province of a jury to decide whether a given thing is or is not unsoundness. This will account for a difference of opinion as to some things constituting un- soundness in one case, and in an other are declared not to amount to unsoundness. If an entry of sale be as follows, " sold to A B one bay horse, considered sound," it cre- ates no warranty; if it read, "being sound of limb, and wind, and free from all diseases," it would be and express warranty of soundness. The statement, "you may de- pend upon the horse being perfectly quiet and free from vice," creates an express warranty as to these points. If the buyer asks, " Is the horse lame?" and the seller re- plies, " He is not lame, and I would not be afraid to war- rant him sound in every way as far as I know," it will create a warranty. A statement that a horse's eyes " are as good as any horse's eyes in the world," will not amount to a warranty. It is only an opinion. The difference be- tween an opinion and a warranty is this, if the vendor as- sumes to assert a fact of which the buyer is ignorant, as, " the horse is sound," it is a warranty ; if he merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected to have an opinion and to exercise his own judg- ment, as " his eyes are as good as any horse's eyes in the -world," it is merely an opinion. It is for the jury to say whether the language used was intended as a mere ex- pression of opinion, or belief, or as an assertion of fact in- tended as a warranty. I hope enough has been said to make it plain to the student, that a warranty is a fruitful source of litigation ; , a rock, in the mid-ocean of business relations, not easily seen, and, on which, the frail bark of friendship has often been dashed and broken, to sink out of sight, leaving but a few floating spars to awaken the melancholy thought of broken friendships, blighted hopes, and ruined for- tunes. SALES. 219 Delivery, Acceptance, and Payment. After the contract of sale has been completed, the chief and im- mediate duty of the vendor, in the absence of any con- trary stipulations, is to deliver the goods to the purchaser. If the purchaser is to perform any conditions precedent, then the duty of the vendor to deliver does not arise until the purchaser has performed the conditions. By delivery as used here we mean the putting of the goods at the dis- posal of the vendor. The vendor is not bound to send the goods to the buyer but only put them at his disposal, un- less he stipulates to deliver at a certain place, then he must deliver at that place. The vendor must be careful and not deliver more nor less than the exact amount. If he does, the vendee is not bound to accept it. If a day is fixed for delivery, the seller has the whole of the day within which to deliver; if any one of several days, he has the whole of all of them. The seller ought to deliver them at a reasonable hour, and early enough before midnight so that the buyer can examine the goods, count his money, and give a receipt. Until the time to deliver arrives the seller ought to keep the things sold with ordinary care, and is responsible if they be destroyed from want of such care. If the buyer orders the goods sent in a certain manner, the seller ought to send them that way, and if any injury befalls them, it is at the loss of the buyer. As it is the seller's first duty to deliver the things sold, it is the first duty of the buyer to accept and pay for them. It is not necessary for the buyer to accept before he be- comes liable for the price. We saw that the contract was complete without delivery, and so the buyer can not refuse to accept and thereby hope to escape his liability to pay. His liability to pay is fixed, when the contract is com- pleted. Payment of the price may be said to be the buyer's chief and immediate duty. In one sense it may be said to be a 220 ELEMENTS OF LAW. condition precedent to the demanding delivery, for the law gives the seller the right to retain possession of the things sold until he has received payment of the price un- less he has agreed to give the buyer credit. Liien. The right of a vendor to retain the things sold until he has been paid the price is termed a lien. This right extends only to the price. It depends upon possession. If the seller voluntarily parts with the possession of the goods, the right is gone, and his lien lost. But, if the goods are taken from his possession against his will, or unwittingly, the right survives and he can retake the goods wherever he can find them. If the selfer has some debt against the buyer he can not retain the thing sold to insure the payment of the debt. The right of lien is said to extend only to the price. If it is permitted to cover the other debt it must be by express agreement. The lien that simply covers the cost is termed a particular lien; if it is extended to other debts it is termed a general lieu. The particular lien is a com- mon law right and much favored by the courts. A lien is lost by giving credit or the voluntary delivery of the goods to the buyer or his agent. When it has once been lost, as a general rule, it is lost forever, that is, the seller can not, by getting possession of the goods again, claim the right to hold them till he is paid the price. There is one very notable exception to this rule which we will now consider. Stoppage In Transitu. The use of this phrase is necessary to save a circumlocution of expression and when its meaning is mastered it will be easily remembered. It means simply a stoppage of the goods while they are on the way from the vendor to the vendee. The right arises solely out of insolvency. Commerce can not be carried on without a system of credit. Wholesale houses sell on time to retail merchants. They must do so at a certain risk. The policy of the law is to make that risk as small as possible. SALES. 221 The law, we have seen, often makes certain great and radical exceptions to certain of its rules in favor of com- merce, and this is another notable instance. The object of the exception is to restore to the vendor his lien on the goods by repossessing him of them. By shipping the goods, the vendor voluntarily parted with the possession, and we saw that such an act destroys the lien which, by the general rule could never be restored. The rule is based on the plain reason of justice and equity, that it is not reasonable that one man's goods should be taken to pay the debts of another. Let us instance a case so it may all be clear to the mind. A is a merchant in Chicago. B is doing business in Ada. B is insolvent, but A is not cognizant of this fact. B goes to Chicago, buys goods of A on credit, which goods A ships to B. After the goods have been delivered to the railroad company, and on their way, A hears of B's insolvency. He goes at once to the officers of the company and orders them not to deliver the goods, consigned to B, to him, but hold them for A. If A gives this order before the goods are deliv- ered to B, he is said to be repossessed of the goods, and his right of lien is again renewed. If this right of stoppage was not given, then the goods would pass on to B, and, being insolvent, his assignee would take them and place them among the' assets of B, out of which all the creditors of B must be paid in proportion as their claim is to the whok sum of indebtedness of B. To illustrate, B owes D. 5. & F., each five thousand dollars. B buys of A on credit five thousand dollars worth of goods. His assets, including the goods bought of A, amount to ten thousand. His indebtedness, including A's claim amounts to twenty, thousand. He can only pay fifty cents on the dollar. A will only receive two thousand five hundred dollars, and the like sum of two thousand five hundred dollars goes to pay the other creditors of B. By what right can D. E. & 15 222 ELEMENTS OF LA W. F. claim a share in those goods? None. It would be no better than highway robbery. But, granting the right of stoppage in transitu, unless we place bounds and lay re- strictions on it, as great frauds could be practiced on the creditors by false claims being set up, as could be done if the right were not granted. So we find the law setting these limits and placing certain restrictions on this right, so that in its application justice will be fully done to all interested. We shall now proceed to speak of these reg- ulations. 1. Who possesses tMs riglit and by ivlioiu can it be exercised 1 By a vendor who has sold on credit. He must not have heard of the insolvency of the vendee before he has parted with the goods, for if he did, he could not claim that he had parted with the goods involuntarily and would not have done so, if he had known all the circumstances. Hence the notice of insolvency must be received after the goods have paSsed out of the possession of the vendor or the right will not attach. There must of necessity be three parties interested, namely, the vendor, the middle man, who is carrying the goods from the vendor to the purchaser, and the vendee or purchaser. The vendor's agent can exercise the right as well as the vendor himself. And the inherent justice of this rule is so great that the courts have extended the right of stoppage in transitu to all who stand in the relation of vendor, that is, A. is the vendor, B is the vendee, while the goods are in transitu, A sells his interest in them to C who, hearing of the insolvency of B, can stop the goods. 2. Against 'whom can this right be exer- cised ? Only against the insolvent debtor. Insolvency, as used here, does not mean that the debts of the vendee are greater than his assets, but simply that he is not able to pay his debts as they fall due. The mere fact that the buyer had "stopped payment " has been held, as a matter SALES. 223 of course, to be such an insolvency as justified stoppage in transitu. The vendor must always exercise this right at his own risk. For, if the vendee is not insolvent, the vendor will be liable for damages sustained by the vendee. To stop goods on the ground of insolvency when he is not insolvent, can not but greatly impair the credit of the vendee, and if it were permitted the vendor to exercise this right without incurring a risk, he might seek the opportunity and occasion to exercise it that he might thereby destroy the credit of the vendee and ruin him financially. It may seem like a hard rule to permit this right to be exercised simply because the vendee may not be able to pay a debt, a small one at that, when it falls due. But look deeper into the question ; see the need of that exact- ness and promptness of payment which must exist to support the system of credit, look at the disorder and uncertainty that would be occasioned by a few slow payers, and you will be convinced that the rule is per- fectly just. A careless and negligent business man ought to be driven to the wall. The sooner the better. If he is permitted to live, he may cause greater ruin a few years hence and it is better that he go down early and that a better and more worthy take his place, than to exist a few years and bring ruin to many. None but live, wide awake young men ought to go into business pursuits. 3. Wlien does tlie right begin and end? It begins when the goods leave the possession of the vendor, and ends the moment they are in the possession of the vendee, or his agent. The possession of the vendee may be either actual or constructive. The first needs no explanation, and an illus- tration will make the second way clear. Suppose A, living in Chicago, sells and consigns goods to B, living in Ada. He sends a bill of the goods consigned to B, who, after he receives the bill, and while the goods are on 224 ELEMENT^OF LAW. their way to Ada, say at Ft. Wayne, Ind., sells them to C, who takes an assignment of the bill from B. The moment that B assigns the bill of lading to C he passes the property in them to C, who is now the owner. B is insolvent of which fact A does not hear till a few minutes after B has assigned the goods to C. A is remediless. He can only exercise the right of stoppage against the insolvent creditor. C is not an insolvent creditor of A. It would not be just to permit A to stop the goods from C, because C is as innocent as A, and may have paid the price of the goods to B. If so, to give A the right to stop the goods, would be to make C stand the loss of the whole price, or at least as great a per cent of it as A. Here is the case of two persons, one of whom must lose by the insolvency of the other. Neither are at fault. Which must bear the loss? The only rule, that can be applied in almost every case with certainty and justice is, that when one of two innocent persons tnust suffer by the act of another, that one must bear the loss wlw made it possible for the third person to do the act whereby the loss is incurred. In this case A, by giving credit to B, made it possible for B to do an act that creates a loss to C, another innocent party, and consequently A must bear the loss. B must have been possessed of the goods or he could not have sold or transferred them to C. He was not in actual possession, but for the sake of commerce he is said to be in constructive possession and so has full power to sell them while they are on the way from the vendor. 4. How is this right to be exercised? No par- ticular mode is necessary. The vendor can go personally to the officers of the company carrying the goods to the consignee and notify them not to deliver the goods to the consignee until they receive further orders from him. He may send word by telegraph or in writing. If the carrier delivers the goods after receiving notice, he will be liable SALES. 225 to the vendor for the price. The right can not be exer- cised on account of debts not connected with the goods. 5. Effect of an exercise of this right. As soon as the notice is given the property in the eye of the law returns to the plaintiff's possession. Having once again gotten the possession, his right of lien attaches to the goods and the vendee can not get them until he pays the price or the vendor voluntarily gives up the possession. But the con- tract of sale is not rescinded. The property in the goods remains in the vendee but the possession of them remains in the vendor . The exercise of the right simply places the vendor in the same position and gives him the same rights as he possessed before he consigned the goods to the ven- dee. As soon as the vendee, or his agent, or assignee, offers to pay the price, the vendor must accept it and the right of lien is gone. Remedy for breach of the contract. The con- tract of sale may be broken either by the vendee or vendor. We shall consider first the breach by the vendee, and then that by the vendor. I . Breach by the vendee. It is clear to the mind that the vendee may commit a breach of the contract of sale before the property in the goods has passed to him as well as after it has passed to him. The breach before the property passes must arise from a refusal to accept the goods. The only question is, what remedy has the ven- dor? His only remedy is an action for damages for non- acceptance of the goods sold to A. As the property in the goods has not passed out of the vendor the goods are still his, and being his, he can sell them at will to another. But, as a matter of fact, no vendee will break his contract of sale, if he thinks or knows that the benefit of the sale is in his favor. On the other hand, if he thinks he has made a bad bargain he will try to get out of it. Then, to do so, he refuses to accept the property. In such a 226 ELEMENTS OF LA W. case, the vendor can sell the goods for as good a price as he can receive and sue the vendee for damages, the meas- ure of which will be the difference between what the ven- dee was to pay and what the vendor actually received for them. For example: A sells his horse to B for one hun- dred dollars, to be delivered in one week. In the mean- time the price of horses falls and B notifies A that he will not accept the horse. A sells the horse to C for seventy- five dollars, the market price. He then can sue B for twenty-five dollars damages, being the difference between the contract price and market price when the contract was broken. The breach after the property has passed arises from failure or refusal to pay the price. The vendor, by giving up possession, stands on the same footing as any other creditor and hence he can only resort to the courts and sue the vendee for the price. So far, both actions or remedies are against the vendee personally and do not affect the property, and they are termed "personal actions against the vendee. " We shall not consider the unpaid vendor's remedies against, the goods. We have considered the subject of stoppage in transitu which is one of the vendor's remedies, as it restores to him his right of lien, by which he can hold the goods till he is paid. If the insolvent vendee can not pay the price, the courts will permit the vendor to sell the goods, and thereby secure the price, or keep them as his own by restoring the property in them. We have likewise spoken of the vendor's lien and also of the sale remedies when the goods have passed. We shall now speak of one other remedy against the goods while they are yet in the pos- session of the vendor. As the property in the goods passed to the vendee the vendor is no longer the owner, and as long as the vendee does not commit a breach of the contract, the vendor can not pass the property to any third party by selling the goods to him. The vendor SALES. 227 has not the right to rescind the contract when the vendee is in default for the payment of the price. This is the rule, is there no exception? Suppose the goods are of a perishable nature, like fruit? or expensive to keep, like stock? Is there no remedy? Yes. The vendor has one of two remedies: 1. He may sell the property, acting as the agent, for this purpose, of the vendee, and recover the difference between the contract price and the price of re-sale. 2. He may keep the property as his own and recover the difference between the market price at the time and place of delivery and the contract price. If he chooses the first mode, he must act in good faith and secure as good a price as he reasonably can. The law does not require that he shall receive the highest price in the market that day, but simply that he use ordinary discretion and judgment in the act of re-sale. If he receives more for the re-sale than the contract price, he must pay the excess to the vendee — less his expenses — because the goods sold were not the vendor's, but the vendee's. They are the vendee's, because this default does not give the vendor a right to rescind the sale. 2. Breach by the vendor. The vendor may break the contract as well as the vendee, and we will next pro- ceed to see what remedies the law gives to the vendee for a breach of the contract. If the vendor commits the breach before the property passes, the only remedy the vendee possesses is the right of action for damages, which is ordinarily the difference between the price to be paid and the market value of the time and place where the goods were to be delivered. This case is the reverse of the one presented under the vendor's remedy. Here the vendor thinks he is the loser by the bargain, and so wants to get out of it, and attempts to evade his duty by a refusal to deliver the goods at the time and place fixed by the contract. It may be laid down 228 ELEMENTS OF LA W. as the law to-day that, in such a case, the vendee would be entitled to recover not only the difference between the contract price and the market price at the time and place of delivery, but also additional damages to cover expenses of transportation and hauling from the nearest available market if like goods could not be found in the market where, by the contract, the goods were to be delivered. It has also been held in New York that the vendee could likewise recover gains prevented as well as losses sustained. For example : A contracts with B for a horse, price one hundred dollars, to be delivered in a week. In the mean- time A contracts with C to sell him the horse for one hundred and twenty-five dollars. B refuses to fulfill his contract. A can sue him under the last rule given for twenty-five dollars, being the gain prevented. If the property in the goods has passed to the vendee, and then the vendor refuses to deliver after the vendee tenders the price, what remedy has the vendee? In gen- eral only an action for damages; for, if he gets full dam- ages, he can go into the market and buy other articles of the same kind. But if the property bought is cf such a rare nature as not to be easily found in the market, or if possessed of some inherent value, the vendee can sue for the possession, and the court will give him a decree order- ing the vendor to deliver the property to the vendee. The vendee's remedy for a breach of a ■war- ranty. I. If it is a breach of a warranty of title, and the goods have not been received, he may refuse to accept them. If the goods have been received, he can sue for the price paid on the ground of a failure of consideration for the money paid. 2. If the breach is of a warranty of quality, and the goods have not passed to him, he may refuse to receive them. If the goods have been received, he can have an action for the damages he has sustained. If he has not paid the price, the vendee may refuse to pay it, and, when BAILMENT. 229 sued by the vendor for the price, set up his damages suffered by the breach of the warranty as a counter claim to the price to be paid. A breach of warranty is no ground for rescinding the contract of sale. We now bring our remarks on the subject of sales to a close. As we look back at what has been said we fear many points may not be clear on the first reading, but hope that by a little study the points will appear plain to the mind. CHAPTER VIII. BAILMENT. Outside of the legal profession the term bailment is little used. Its use, however, is necessary as the basis of class- ification of certain relations and rights, and, when the student has familiarized himself with its true meaning and use, he will experience but little trouble in applying it properly. The primary meaning of the word bailment is "to put into the hands of another." As used in this chapter it means, according to Chancellor Kent, " a delivery of goods in trust upon a contract, expressed or implied, that the trust shall be duly executed, and the goods restored by the bailee as soon as the purpose of the bailment shall be answered." Sir William Jones words the definition of bailment thus : ' ' The delivery of goods on a condition, express or implied, that they shall be restored by the bailee to the bailor, or according to his directions, as soon as the purpose for which they are bailed shall be answered. " The chief thing to be observed is that real property is never the subject of bailment, but that class of property only which is known by the name of "goods;" or, in 230 ■ ELEMENTS OF LAW. Other words, it must be something of a strictly personal nature, so that it may be delivered or handed to another. The bailor is the owner of the goods, the one who makes the delivery of the goods or things bailed. The bailee is the one to whom the goods or things bailed are delivered. Two persons only are required to form the relation of bailment. Let us suppose a number of cases : 1. If you were to hand me your book, and direct me to keep it for you till a certain time, or until you came for it, and I accepted the book for that purpose, the relation of bailment would be established between us. Here we have something of a personal nature, the book, delivered by one party to another, to be held according to the pur- pose or object of the delivery, and to be returned or deliv- ered over by the bailee to the bailor when the purpose of the bailment is accomplished. 2. If you were to hand me your book and, besides ask- ing me to keep it for you till you called for it, you direct me to do gratuitously some act to the book, and I accept the book and promise to perform the act gratuitously, the relation so formed between us is still called bailment, but belongs to a different class than the first example. In this case I undertake to do an act gratuitously in addition to assuming the mere passive custody of the thing bailed. 3. If I were to go to you and ask you for the use of your horse to go on a certain journey, and you gave me the use of the horse gratuitously, the relation so formed between us constitutes another class of bailment. 4. If I owe you a sum of money and, desiring to give you some security, I hand you my watch to keep till I pay you the money, our transaction would belong to an- other class of bailments. 5. If you have a horse and buggy and I go to you and hire the use of them for a certain time we would establish a relation which represents still another class of bailments. BAILMENT. 231 We are now ready to give both a name and definition to each of these classes of bailments. The first is called Deposit, or more usually Depositum, the Latin form of the word, which is where the bailee un- dertakes gratuitously to keep the goods of another. The bailee in this class of bailments is called a depositary, and the bailor is called depositor. No one can be made a depositary against his own free will. The second class is called a Mandate, or the Latin form which is in common use, Mandatum, which is where the bailee, who in this class is called mandatary, under- takes or engages to do some act to the thing bailed with- out reward or recompense. The bailor in this class of bailments is spoken of as a mandator. In this class as well as in that of Depositum, no one can be made a mandatary against his free will. As agreement is required to form each of these classes, and as a consideration is necessary in law to make a promise binding, the student will ask, doubtless, where is the consideration for the promise of the bailee in these classes when he is to do his part gratuit- ously? The answer is, the law considers the trust and con- fidence of the bailor a sufficient consideration for the promise. It may also be put on the ground that the bailor suffers some inconveniences by parting with the thing bailed. The third class is called Lioan or Commodatum. This is where the bailee gets the use of the thing bailed gratuit- ously. Commodatum is like Depositum and Mandatum so far as the consideration for the bailment is concerned, but differs from them in the fact that in them the benefit belongs wholly to the bailor, while in Commodatum, the benefit is wholly in favor of the bailee. In this class of bailment the bailor is known by the term lender, and the bailor by that of borrower. It is thought that a student will not have much trouble in seeking examples of this class of bailments, as the chronic borrower is found in 232 ELEMENTS OF LA W. every neighborhood. The thing borrowed is to be returned, but there are certain exceptions to this rule. If the article is one that is borrowed for consumption, as sugar, potatoes, apples or flour, it is to be returned in kind only. Such a bailment is technically called a Mutmim, and that class of articles are called fungible. Under the fourth class of bailments are grouped all those transactions so familiarly known as pawning or pledging of goods so as to secure some money. The name of this class is Pa^wn, Pledge, or the Latin word Pignus, which means pawn or pledge. The bailor in this class is called pawnor or pledgor, and the bailee is called pawnee or pledgee. The examples of this class of bailments are likewise familiar to the student. It will be noticed that this is the first class of bailments that is a mutual benefit to both bailor and bailee. The fifth class which includes all kinds of liiring is known by the Latin word Locatio, which means in general a hiring. There have been introduced in this chapter more techni- cal and foreign words than in any other chapter. We have done so because, if the student will closely examine these words, he will see that the technical word is both concise and easy to be learned. It is strongly urged that the stu- dent be not contented to pass by them until they are mas- tered. Anyone who masters them will be abundantly rewarded for his labor. Mr. Story, for the purpose of classifying the duties of the bailee, has arranged the five classes of bailments under three heads, namely, ist. Those where the benefit of the bailment is wholly in favor of the bailor, which includes Depositum and Mandatum ; 2nd. Those where the benefit of the bailment is wholly in favor of the bailee, which in- cludes only Commo datum; 3rd. Those which are of bene- fit to both parties, which include Pignus and Locatio. BAILMENT. 233 The only question we shall present in relation to these different classes of bailments is, when is the bailee respon- sible to the bailor when any damage is done to the thing bailed or it is destroyed? In the class of bailments where all the benefit is to the bailor, the bailee is only liable for damages to the thing bailed when the injury is the result oi gross carelessness on the part of the bailee. The same rule may be stated thus, as the benefit is wholly in favor of the bailor the law only demands slight care and, if a damage happens to the thing bailed, while the bailee is exercising slight care he will not be liable to the bailor. What slight care is must always depend upon the nature and value of the goOds, whether the bailment takes place in the city or in the country, as well as the disposition, habits and age of the bailee. If the bailor selects a child that is weak-minded he could never recover damages where he might if the bailee was a man and strong-minded. In the second class of bailments, where all the benefit is in favor of the bailee, the law requires the bailee to exer- cise the highest care, and if an injury results to the thing bailed from slight negligence on the part of the bailee, he will be responsible to the bailor in damages. The reason of this rule is plain. The bailor receives nothing for his goods. If the bailee is to receive the use of the thing bailed he ought not to complain if he is held to the strictest care. The law will not permit a man to borrow of others, and then, if the thing is destroyed through his carelessness, say that the owner must bear the loss. If, however, while the bailee is using the highest care the thing is destroyed he will not be responsible to the bailor. For in such case the acci- dent will be treated as an act of God, for which no one is liable. Under the third class of bailments as given by Mr. Story, the bailment being of equal benefit to both parties, 234 ELEMENTS OF LAW. the law requires only ordinary care on the part of the bailee and holds him responsible for ordinary negligence. The student will have but a vague idea of these differ- ent classes of care and negligence which stand so recipro- cally related. The most that can be said is contained in the contrasting of the terms thus; where slight care is re- quired, there is responsibility for gross negligence ; where great care is required, there is responsibility for slight negligence; and where ordinary care is required, there is responsibility for ordinary negligence. The care which the average business man exercises concerning his business affairs may be taken as a basis of the Ordinary care spoken of in the third-class. The care that a very watchful and diligent business man takes that no harm may befall his goods, will be a criterion by which to judge great care, and the absence of which is called slight negligence. The loose and careless manner of one who is known not to be very prudent in taking care of his affairs may be some- what of a criterion by which to judge of slight care, the want of which will be termed gross carelessness. The only safe rule to be adopted when you have in your pos- session the goods of another, is to remember that he has placed them in your care and you should neglect no act whereby their safety may be insured. Under the fifth class, Locatio, there are three kinds of hiring, namely: ist. Where there is a thing hired and the hirer gets a temporary use of the thing bailed, as if you were to go to a livery stable, and hire a horse and buggy for a day's drive. You have a temporary use of the horse and buggy for the day, while the liveryman has an absolute right to, and property in, the price you are to pay for the use. This kind of hiring, or Locatio, is termed Locatio Rei. 2nd. Where the bailee is hired to do some work or bestow some care on the thing bailed, as, where mechanics are employed to manufacture or to repair some article for you, or your postmaster receives your letter to BAILMENT. 235 be sent to the place directed, or where an inn-keeper re- ceives a guest and his goods. The student can easily recall examples of this class. This kind of hiring is termed Locatio Opens Facietidi, which means the hiring of work done. Commerce requires that personal property of all kinds, goods, wares and merchandise of all kinds, shall be trans- ported from place to place. The owner hires some one who is engaged in that occupation as a business to trans- port his goods for him. It is very plain that a hiring of this kind differs materially from that of the two classes named. It is also plain that like the second, Locatio Operis Faciendi, it includes the hiring of labor done, but it also includes the idea that labor is not done on the mate- rial of the thing bailed, as in the second class, but that the labor done is simply a transporting of the thing bailed from one place to another, and so that idea is included in the name given to this class, namely, Locatio Operis Mercium Vehendarum, which simply means the carriage of goods for hire. The bailee under this class is known by the term Common Carrier. In the remainder of this chapter we shall speak of Innkeepers and Common Carriers. Inkeepers. The student will remember that the inn- keeper is a bailee under the head of Locatio Operis Fanci- endi, or the hiring of work done. The relation of inn- keeper is the most important of the whole class, and one that we may be called upon any day to form. An inn- keeper has been defined to be one who keeps a common inn for the lodging and entertainment of travelers and passengers, their horses and attendants, for a reasonable compensation. He must be one who makes it his busi- ness to entertain travelers, providing lodging and necessa- ries for them, their horses and attendants. It will not make one an innkeeper to do so occasionally for hire. In general, the words inn, hotel, and tavern, mean one and 236 ELEMENTS OF LAW. the same thing. It is not a requisite that he furnish ac- commodations for horses and carriages to be an innkeeper. The innkeeper, if he has room, is bound to take in all who come as travelers and wayfaring persons, and to entertain them for a reasonable compensation. If he refuses to receive . anyone he makes himself liable for damages in a civil action to the party rejected, and is also liable to be punished by the State criminally. However, if the presence of the excluded person would be danger- ous to others, or would be justly offensive to their sense of decency or propriety, or for other reasons would inter- fere with the proper enjoyment of others of the accommo- dations which the innkeeper affords, he would certainly be justified in excluding them. But the innkeeper must prove that such would be the result. The common law liability of an innkeeper is great. He is the insurer to the traveler that his horses and goods will be safely kept. If any accident should destroy them, the innkeeper must pay for them, unless they were destroyed by the act of God, or the public enemy, or the acts of the traveler's own servants or traveling companion. Hence, the innkeeper is liable for all losses resulting from his own negligence or misconduct, or that of his servants, as well as all accidental fires and wrongful acts, as thefts of third persons not associated with the traveler. This severe rule of the common law is somewhat relaxed by the statutes in the several States. In Ohio, innkeepers may limit this hability for moneys, jewelry, etc., by keeping a safe and posting notices thereof in their hotels. If the traveler disregards the notice, and keeps his jewelry and money on his person, and they are stolen, the innkeeper will not be hable to the traveler for their loss. The innkeeper has a right to make reasonable rules for the safe-keeping of the traveler's goods, and if the traveler, knowing of these rules, disregards them, and any loss occurs to his goods from a lack of observing the rules, the innkeeper is exon- BAILMENT. 237 erated from all liability. Regular boarders at a hotel have none of these rights, which belong exclusively to persons who are denominated travelers, passengers or v^ayfaring persons. How long a person may stay at one hotel and not lose his character as a traveler is not determined. Commoil carriers. A common carrier is a repre- sentative of the third class of hiring or Locatio. Their contract is the carrying of goods or passengers from place to place. A common carrier is defined to be one whose business, occupation or regular calling is to carry goods for all persons who may choose to employ and remunerate him. Those who carry persons are called Common Car- riers of Passengers. The definition includes the carrying of goods by land or by water, and in any manner. Those who come under this title are stage-coach proprietors, express companies, truck men, wagoners, teamsters, rail- way companies, and all owners of shops and vessels of any description, except "men of war." At common law the common carrier is an insurer of the safe carriage and delivery of the goods. If they were destroyed in any manner, except by the act of God or the public enemy, he would still be liable. The carrier is not responsible for losses occurring from natural causes, such as frost, fermentation, or natural decay of perishable arti- cles, provided he has used due care to guard against them. The common carrier must receive and carry the goods of all who seek his services, and he must do so in the order in which they present themselves. He is not permitted to discriminate against one in favor of another, else the strong would soon crush out the weak competitor. It is provided by statute in Ohio that no discrimination in rates between shippers can be made by a common carrier and, if a lower rate than the usual one is, directly or indirectly, made to a shipper between two points on account of bulk, mode of delivery, quantity, distance, competition, or other like condition, every other shipper of the same kind i6 238 ELEMENTS OF LAW. of articles, under substantially like condition in every respect, is entitled to the same service between the sanae points on tender of the same rates. Without doubt this rule is frequently evaded or violated in one way or another by railroads in their desire to secure the business of large firms and corporations. This strict rule of making the common carrier the insurer against all loss except from natural cause or the act of God, or the public enemy, arose out of nesessity. It was established in England when the country was infested with thieves and highway robbers. If the law did not make the common carrier an insurer, it would be an easy matter for these same thieves and robbers to detail a part of their band to engage in the business of carrying goods, and, when at certain places, being set upon by their fel- lows, make a faint and feeble effort to defend the goods, and, being overcome, report that they were robbed, and thereby escape any further liability. But to make them insurers is to provide against all such associations and com- binations, and makes it a motive for the carrier to fight to defend the goods. However, when the cause fails, the reason likewise is at an end. Our country is not infested with such highway robbers, or, at least, the greater part is not, and, for that reason, there is a strong tendency to relieve the common carriers of to-day from the onerous burdens of being insurers, making them responsible only for their negligence or that of their servants. It can not be said that that is yet the law, but, by certain provisions and evasions, the same end in effect is reached. This is done by special contract by the owner of the goods and the common carrier, exempting the common carrier from his liability as insurer, and leaving him liable only for his own and his agents' negligence. The same end is some- times attempted to be reached by the common carrier posting a notice in some conspicuous place saying that he would not be responsible beyond his own negligence or BAILMENT. 239 that of his servants and agents. It has been decided by the Ohio Supreme Court that a common carrier can not restrict his liability for risks and care by notice, verbal, written or printed, even when brought to the knowledge of the owner of the goods or employer. Notwithstanding the notice, the owner of the goods may disregard it and insist that the carrier shall receive the goods under his common law, liability. A general notice, as, "All baggage at risk of the owners," can be disregarded by the traveler, and the company must take the baggage under the responsibility which the law creates, else render itself liable to an action. A question of great importance is, when does this extra- ordinary risk of insurer begin and when end? In general the answer is, when the common carrier receives the goods for transportation the risk begins. If he receives them and is not to send them forward until further orders from the owner, the risk does not attach until the order is given to send forward the goods. In the meantime, if the com- pany are to receive nothing for the storage and keeping of the goods until the order is given, the risk is simply that of a depositary. When the risk attaches it lasts during the time the goods are being conveyed and until they are taken from the car or vehicle in which they were carried. If the consignee, the person to whom they are to be delivered, is present, he can receive them and the risk is ended. If he is not pres- ent and the company unloads the goods and puts them in the warehouse for safe keeping till the consignee comes and takes them away, the responsibility as insurers is ended, for the company has done all that it agreed to do, namely, it received the goods, transported them safely to the place of their destination and were ready to deliver them but were kept from doing so by the absence of the consignee. When the company unloads the goods and puts them in a safe place to await the arrival of the con- 240 ELEMENTS OF LA W. signee, it is then only liable as a depositary, because it is to receive no consideration for the safe keeping of the goods. Common Carriers of Passengers. The carriers of passengers are never insurers for the safety of the pas- sengers as common carriers of goods are. The reason is plain. There never existed the circumstances or causes here that gave rise to the rule in reference to goods. They are, however, liable for the slightest negligence and are bound to the highest degree of watchfulness and care in regard to all their appliances for the conduct of their busi- ness; so that, as far as human foresight can secure the safety of passengers, there is an unquestionable right to demand it of all who enter upon the business .of passenger carriers. The carrier of passengers can make reasonable regulations in regard to the conduct of passengers, and dis- criminate between those who observe their rules and those who do not, charging more fare of the latter, as in the case of refusing to buy a ticket before entering the car. It has been decided that the carriers of passengers are not responsible where the injury resulted directly or indi- rectly from the negligence of the passenger ; that they are liable for reasonable damages for a failure to deliver pas- sengers in reasonable time according to their public announcement; that they can demand of the passengers the surrender of their tickets in exchange for conductor's checks, and a refusal to do so will be good cause for expelling the passenger from the car; that they are liable as insurers of the baggage of the passengers; that they may limit the amount in value or weight which they will carry as baggage. The term baggage has been decided to include such articles as the traveler's comfort, convenience and amusement may require. It includes whatever a passenger takes with him for his personal use or convenience according to the habits or wants of the particular class to which he belongs, either in reference to the immediate necessities or ultimate pur- WILLS. 241 pose of the journey. The following things have been held to be proper things to be in a trunk as baggage, namely, one revolver but not two, a watch, an opera glass, a rifle, books for reading or amusement, and jewelry which forms a part of female attire. But merchandise of all kinds, jew- elry for presents, and, in some States, money, even to a reasonable amount, are not to be classed as baggage. The most important law of all that refers to the duties of common carriers of passengers is the one laid down by the courts, as follows: If anything more could be done by the carrier to insure the safety of his passengers, and an injury occurs in consequence of such omission, he is liable. In New York the courts have laid down this very impor- tant rule. "A railroad company is bound to introduce improvements which are ascertained to be practicable and conducive to safety;" and are therefore liable for any injury caused by neglect in not introducing them. CHAPTER IX. WILLS. The practice of allowing the owner of property to direct its destination after his death is of very ancient date. We have an early instance recorded in the life of Jacob, who, when he was about to die, willed unto Joseph one portion above that of his brethren. In the earlier history of every nation of antiquity, a time, when the owner of property was not permitted to will, it has always preceded the time when wills were permitted to be made. There are two words that are generaly spoken of to- gether, namely, "will" and "testament." "Will" is an English word, while "testament" has been borrowed from the civil law. We make use of the terms conjointly as, " last will and testament. " When a will operates on real property only, it is sometimes spoken of as a devise, 242 ELEMENTS OF LA W. when it operates upon personal property only, it is spoken of as a testament. But as it is the customary thing in this country to dispose of both real and personal property in the same instrument we make general use of the conjoint expression " will and testament. " Definitions. A will is a disposition of real and per- sonal property to take effect after the death of the testator. A testator is one who makes a will. If the maker of a will is spoken of in reference to a gift of real property the term devisor is often applied to him. The one to whom the land is devised is called the devisee. A gift of personal property is termed a legacy, ■ and the person to whom a legacy is given is called a legatee. If the testator names in his will a certain man who is to carry into effect the provisions of the will after the death of the testator, such an one is called an executor ; if a woman is named, she is called an executrix. If no one is named in the will, the Probate Judge will appoint one to carry out the provisions of the will, and such an one, if a man, is called an administrator, if a woman, an administratrix. When a woman makes a will she is called a testatrix. Who Can Make a Will? Anyone, male or fe- male, who is of full age and in sound mind and memory. At the common law, minors were permitted to make a disposi- tion by will of their personal property. The males were allowed the right at the age of fourteen, and females at the age of twelve. In Ohio, minors are not permitted to make a will. The degree of reason, soundness of mind and strength of memory which a testator must possess in order to make a valid will is not usually as great as that required to enter into a valid business contract. All that is required of the testator is that he has reason and memory enough to know and comprehend the object in view when he is making his WILLS. 243 will. If he knows the properly he possesses and the per- sons whom he desires to be the recipients of his bounty, he is capable of making a good and valid will. It is easily seen that one may possess such an amount of reason, and yet not be able to properly weigh and consider the differ- ent elements and circumstances that may surround an intricate business transaction. An insane person during the fit of insanity can not make a will, but if he should have lucid intervals and make the will during one of these intervals it will be valid. If a man is the subject of certain delusions, as a monomaniac, and yet be perfectly rational in all other respects, and the delusion does not destroy his capacity to comprehend the extent of the property to be disposed of, and the nature of the claims of those he is ex- cluding, the delusion will not destroy his power to dispose of his property by will. Age will not disqualify from making a will, provided the testator has a competent possession of his mental iaculties. The mere failure of meinory is not suf- ficient to create the incapacity, unless it be quite total, or extends to his immediate family and property. The want of the recollection of names is one of the earliest symp- toms of a decay of memory, but this failure may exist to a very great degree, and yet "the solid power of under- standing " remain. The law always presumes the testator possesses the requisite sanity, and the party denying this must establish the fact of insanity. Those who are disap- pointed in the disposition of the bounty of the testator are very prone to declare the testator to have been insane, or of weak mind, or subject to undue influence at the making of his will. If the testator should make his will contrary to their views, it is very easy for them to think he is insane. They take their view as the standard of a perfectly sane man. A contrary view is evidence of insanity. Many a lunatic has declared a sane man a fool. It is no uncommon thing for disappointed and covet- ous persons to work themselves up to the belief that the 244 ELEMENTS OF LAW. testator did not possess the mental capacity to make a will. They think that if he had been sane he would have given all his property to them. They seem to think that, because they may be in some way related to the testator, they have a better right to his property than others, when in fact they have no right to it at all. If they had a right, the law would not permit the testator to make a will, because that would be giving him the power to destroy the rights of others after he is dead, when he does not possess the right while living. If the testator was drunk at the time of making his will, but was not so drunk as to destroy his capacity to act, his will is valid. Different Kinds of Wills. There are two differ- ent kinds of wills, namely, written and unwritten, or nuncupative wills. We will speak of each class separ- ately. WRITTEN WILLS. 1 . Who may write a Will ? The testator may do so himself, or get any other person he may choose to write it for him. The law does not require wills to be drawn by any particular class of persons. 2. General Requisites of a Written Will. A written last will and testament, in order to be valid, must be (i) signed by the testator, (2) at the end thereof, or (3) by some other person, in 'Cat. presence of the testator, by his express direction; it must be (4) attested and sub- scribed in the presence of the testator by two or more competent witnesses, (5) who saw the testator subscribe, or heard him acknowledge the same. First, No writing will be permitted to be probated as a will that is not signed by one purporting to be the testator thereof. Second, The name of the testator must be signed at the end of the writing. If the name of the testator appears in the body of the will but not at the end WILLS. 245 also it will not be permitted to be probated. The object of requiring the name to be at the end, after all the writing, is to keep anyone from adding a clause to the writing. For it would be an easy thing to add a clause or two if the name was not signed at the end. The name ought not only to be signed at the end, but quite close to the last words of the will, so that no words can be inserted between the last sentence and the name of the testator. Before the name is signed, if it was necessary to make any interlineations or alterations in the body of the writing, a note of such interlineation and alteration should be made after the last clause of the will and before the signature of the testator. This note is made because a will bearing any alterations or interlineations on its face presents a suspicious appearance and calls for explanation. Now, if the note is made expressly referring to such alteration and interlineation, this suspicion is removed. Besides, if there is one alteration or interlineation in a will and not referred to by a note, it will be much easier for one to tamper with the will and insert new alterations and interlineations, and, when the witnesses are called upon to swear to the genuineness of the will, they will not be likely to remember exactly how many or what were the alterations and interlineations, but will remember that there were some, and so will declare that all were made before the testator signed the will. In fact, the witnesses may not know of the alteration or interlineation at all, as they may not have read the will or even seen the body of the writing. If you are called upon to write a will, avoid if possible all alterations and interlineations, but if they become necessary, it will be a good practice to sign your initials after the alteration where it is made, besides making the note of reference. One usually leaves more marks of individuality in signing the initials of his name than in ordinary handwriting. Third. The name of the testator may be written by 246 ELEMENTS OF LA W. some other party. If this becomes necessary, the fact that the testator requested such party to sign his name, and that he signed the name of the testator after such request and in the presence of the testator, should be put into a note and placed just before the signatures of the witnesses, so that they will bear testimony to these facts, which show that the law has been fully complied with. Fourth. The will must be attested and subscribed in the presence of the testator, by two or more competent wit- nesses. The word "attested " means simply the act of witness- ing an instrument in writing, at the request of the party making the same and subscribing as a witness. The attestation and subscribing the names of the wit- nesses come after the name of the testator, and, of course, at the end of the writing. There must be at least two wit- nesses in Ohio. There may be more. Some of the States require three, and it is well, if the testator has property in several States and you do not know how many witnesses are required by the laws of such States, to have three wit- nesses at least. None of the States require a greater num- ber of witnesses than three. The law also requires that the witnesses shall be competent. This means competent to give testimony. In general, all persons are presumed com- petent. There is, however, one restriction, namely, if a devise or bequest is given to a person who is a witness to the will, and the will can not be otherwise proved than by the testimony of such witness, the devise or bequest will be void, and the witness will be competent to give testimony of the execution of the will, in like manner as if such devise or bequest had not been made. But if such witness would have been entitled to any share of the testator's estate, in case there had been no will, then the law will permit him to take so much of such share, as does not exceed the amount of the bequest or devise given in the will. An illustration will make this statement clear. Suppose A has IVILLS. 247 three children. If he dies without a will, each will receive a third of the estate. But he leaves a will. In the will he bequeaths to his oldest child one-third of his estate ; to the second, one-third ; but to the youngest only one-fourth of his estate, the remaining one-twelfth to his brother. The will is signed but by two witnesses, one of whom is the youngest child. Now the law declares that as the youngest child's name appears as a witness, and it also appears as a legatee, and the will cannot be sustained without his name as a witness, the bequest to him shall be declared void, that is, he cannot claim anything under the will. But since he would be entitled to a third part of the estate, if the will should not be probated, he will be permitted to take, under the law of distribution, the share that the law will allow him. But in this case the law of distribution would allow him more than his father intended he should have, so the law will not permit him to take any more in the example given, than the one-fourth of the estate, which is the amount his father intended he should have. Had he been willed the one-half instead of the one-fourth, he would have been permitted to receive only the one-third, for that would be his share by the statute of distribution, and, as the law declared the bequest void, he could not claim any more than the law will allow him. From this example, it will be seen, how important it is not to permit a devisee or legatee to sign a will as a witness unless it cannot be helped, and then choose the one, if such there be, who is devised or bequeathed less than he would have received, if there was no will, for he will be able to get all that he would have received, if his name had not appeared as a witness, while, if he is willed more than his share by distribution, he will receive less than the testator intended he should receive. Fifth. The witnesses must either see the testator sub- scribe his name, or the testator must acknowledge to the witnesses that the name subscribed to the will is his name 248 ELEMENTS OF LAW. and in his own hand writing, or if signed by another for the testator, that fact must be acknowledged. Every witness must subscribe his name, as such, in the presence of the testa- tor, but the witnesses are not required to sign in the presence of each other, or at the same time. The law requires that the witness be not only in the presence of the testator when he signs his name as a witness, but also that the testa- tor should have mental knowledge of the fact ; so that if the witnesses are in the presence of the testator and he should be insensible, at the time, of their signing the will, such a will would be void. There is a very prevalent notion that the witness before signing his name must either read the will or have it read to him. This is erroneous. It is not the law. The only foundation for the practice is that it gives the witness a good chance to pry into his neighbor's business and private affairs. It has a pernicious effect and Ought never to be allowed. The will being signed by the testator and attested by the witnesses, the next question of importance is what should be done with it? The testator may keep it in his own possession, or give it to some other person to keep for him, or he may deposit it, or have some one deposit it for him, in the office of the fudge of the Pro- bate Court, in the county in which the testator lives, to be safely kept till after the death of the testator, and then be probated. This last is by far the safest and most prefera- ble way. If the testator should desire to change or alter it at any time, he can get it again from the Probate Judge. The Probate Judge during the life time of the testator can not deliver the will to anyone but the testator himself or to some one authorized by the testator, by an order in writing, duly proved by the oath of a subscribing witness to the order. Every will intended to be so deposited in the court must be enclosed in a sealed wrapper, which shall have endorsed thereon the name of the testator, and the Probate Judge must also endorse thereon the day when it was deposited, and the person by whom it was deposited. WILLS. 249 And it is quite customary to indorse on the wrapper the name of the person to whom the will is to be delivered after the death of the testator. This name need not neces- sarily be that of the executor. Everything devised or bequeathed ought to be set out in the will as a distinct and separate item. Each article should be so described as to be easily recognized from the description contained in the will. The handwriting should be plain, and great care taken to use words that clearly and expressly convey the exact meaning and intent of the testator. If, however, after the will has been written, signed, and attested, the testator desires to make some alteration or some addition, it is not necessary to destroy the will, but simply write, on another piece of paper, the desired change, going through exactly the same formal- ities of signing and attesting as was done to properly execute the will. In this second paper, express mention must be made of the will, and a declaration that this sec- ond paper is to be taken as a part of the first, and both construed together as the last will and testament of the testator. Such a writing is called a codicil, which is defined to be an addition to, or some qualification of, a last will and testament. All codicils are a part of the will and must be so construed, and, therefore, require the same formalities in their execution as the will itself 3. Revocation of a Will. A will does not operate till after the death of the testator, hence, it may be revoked at any time by the testator before his death. There are many ways by which a will may be revoked. It may be done by making another will, or by burning, cancelling, tearing, or obliterating the first. The intent of the tes- tator must accompany the act, but either alone will not be sufficient. The testator may do these acts himself or com- mand some other person to do them in his presence. 4. What may be disposed of by Will. Any per- son of full age possessed of any property whatever may 250 ELEMENTS OF LAW. dispose of it by will, provided, however, that he can not so dispose of it as to defraud any of his creditors. If the testator or testatrix shall die, leaving any child or children living, or their legal representatives, or shall have an adopted child or children living, or their legal representa- tives, and such testator or testatrix shall, in his or her will, devise or bequeath any property or goods to any benevo- lent, religious, educational, or charitable purpose, or to the State of Ohio, or any county, township, city or incorporated village, or other corporation or association, in this or any other State or country, such devise or bequest will be void. unless the will shall have been made at least twelve full calendar montlis before the death of such testator or testatrix. This is a good provision. It keeps impecunious associations from harassing the sick in their weakness, and extorting from them in their last hours the money they intended for their children and friends. A gift of personal property in a will is called a legacy. In general acceptation the term is used in reference to gifts of money, although it includes all kinds of personal property. There are many terms applied to legacy; some to denote one kind or class and others to point out some particular incident connected with legacy. A few of these terms will be given, as they afford the means of intelligent conversation upon this topic. When the testator in his will makes a gift that is to rest immediately and uncondi- tionally in the legatee on the death of the testator, such a gift is called an absolute legacy. Suppose the testator in the first part of his will gives a legacy to one by name, and in a subsequent part of the will bequeaths another article or sum of money to the same person named in the first part of the will, such second or last gift is called an additional or cnmtilative legacy. If the testator desires that a certain person shall receive a portion of his estate but is not willing to give it to that person until some change of circumstances takes place, or WILLS. 251 the party does or ceases to do some designated act, and the testator makes his bequest upon such conditions, the gift so made is called a conditional legacy. If a gift of a particular horse or other article be made it is a specific legacy. If all the testator's goods are given, it is called an indefinite legacy. Sometimes the testator gives a sum of money and designates that it shall be paid out of some particular fund, such a legacy is called demonstrative, because the fund out of which payment is to be made is designated. This kind of legacy has this advantage over others : If the general fund of the testator is not enough to pay all the other legatees in full, they can not claim a share of this particular fund until the demonstrative legacy is first paid, and if the particular fund fails to pay the demonstrative legacy, such legatee has as great an interest and share in the general fund as the other general legatees. If, after the testator makes his will, and before he dies, the legatee should die, the gift in the will is called a lapsed legacy, and goes back in the general fund of the testator's estate. Often after the testator has given away what he thinks is all or nearly all his estate, he makes a bequest of all his personal estate not otherwise effectually disposed of to some particular person. Such a gift is called a residuary legacy, and the person a residuary legatee. Form of a JxnU. No form is prescribed by law. Each party can determine for himself what shall be the for- mal opening of his will. To be asked to write a will is a deUcate position in which to be placed, unless you know beforehand the views of the testator. If he is a Christian, he will, perhaps, desire that a proper recognition be made of the existence of his Heavenly Father; if he has no religious sentiments, no such recognition would be desired. Usually the views of the testator can be gotten from some friend and the embarrassment removed. 252 ELEMENTS OF LAW. If the testator is a Christian and desires a proper recog- nition of his relation to God, anyone of the following forms will be suitable: " In the name of God, amen, " or, "In the name of my Heavenly Father, " or, " In the name of my dear Lord and Savior," or, "In the name of the Benevolent Father of all. " If the party does not desire any such formal introduction, it can, of course, be left out and begin, simply, " I, John Smith, " etc. A COMMON FORM. THE WILL OF JOHN SMITH, OF ADA, OHIO. In the name of the Benevolent Father of all: I, John Smith, of Ada, Ohio, do make and pub- lish this mAj last will and testament: Item 1st. I give and devise to my beloved wife the dwelling house in which we reside; this bequest is not in lieu of her dower. Item 2d. ( «) To my elder son, Samuel Smith, I give and bequeath the sum of one thousand dollars, (*) also my horse, buggy and harness, Item 3d. To my youngest son, Wm. Smith, I give and bequeath two thousand dollars. Item 4th. To my daughter, Susie Smith, I give and devise my dwelling house, situated on Packard street, between Division and Jeffer- son streets, and numbered 101, and now occu- pied by tenant, Wm. Celinger. Item 5th. All the rest, residue, and remain- der of my property, real and personal, I give and bequeath to my esteemed friend John Brown. WILLS. 253 I hereby nominate and appoint C. H. Wood my sole executor of this my last will and testament. I do hereby revoke all former wills by me made. In ivitness whereof, I have hereunto set my hand this eighth day of May , in the year 1886. Signed by the said John Smith, who at the\ same time published and declared the same as and for his last will and testament, in the presence of us, who in his pres- ence, and in the presence of each other, \ and at his request have hereunto sub-/ JOHN SMITH, scribed our names as witnesses. B. F. Martin, Ada, Ohio. John Montgomery, Ada, Ohio. M. G. Bell, Ada, Ohio. The statement signed by the witnesses is termed the attestation clause. It is not a requisite. Its omission is not fatal. If the witnesses do not sign at the same time, the phrase "and in the presence of each other," will be left out. If the witnesses do not see the testator sign his name leave out the word " signed " and use the word "acknowledged. " The following is a very short and sim- ple form of an attestation clause: Signed and acknowl- edged by the said John Smith, as his last will and testament, in our presence ; and signed by us in his presence. A. B. & C. D., Witnesses. Conclusion. Never write a will for anyone, unless you are willing to swear that the testator's mind, at the time of making the will, was sound enough to make a will. Never sign as a witness the will of one whom you believe incapable of making a valid will. If you are called upon to write a will, be sure and write the will of the testator; express his mind clearly; make no suggestions, except ones 17 254 ELEMENTS OF LAW. pertaining to the legal requisites ; see that no third party is using undue influence to frustrate the clear expression of the testator's intention ; if you are suspicious of this, ask him to restate the item, if he gives it in the same form as at first, say nothing, but write it down ; if he changes it, see that you ascertain which one he intends to stand, and write down that one. No rule can be laid down in advance. Common sense and good judgment will be all that is needed to successfully accomplish your task . Unwritten or Nuncupative Wills. There are times when death is so near, or is thought to be so near, that time can not be taken to reduce the will to writing. In such circumstances the dying man is allowed to make a verbal or oral will, which is known in law as a nuncupative will. The testator must be in what is termed "extremis," or in circumstances equivalent thereto, before he can make such a will. By this is meant that the testator has been overtaken by violent sickness, or met with an accident, thought fatal, and without time to make a written will. The testator must clearly intimate by word or sign to those present that he intends to state his will. It re- quires the same testamentary capacity to make an unwrit- ten as a written will. The following points must be ob- served and strictly followed to make a good and valid nuncupative will: (i) The testator must call attention to what he says, and request certain parties to bear testi- mony of it, as and for his last will. (2) When the words have been spoken they should at once be reduced to writing. The sooner they are put into writing the less liable are they to be misstated. They must, however, be reduced to writing within ten days after they are spoken. After they are reduced to writing they must be signed by two competent disinterested witnesses who were present and were of the number called upon to bear such testimony. Such a will ought to be taken to the WILLS. 255 office of the Probate Judge and recorded, although this is not required. (3) It must be presented to the Probate Court for probate within six months after the death of the testator. This is a dangerous species of will, and great care must be taken to eliminate all chances of fraud and deception. Only personal property can pass by such a will in Ohio, and most of the States. A duly executed written will can not be revoked by a nuncupative will. Great care should be exercised in all cases, whether a written or unwritten will, or a gift causa mortis, is desired to be made. The chief thing to keep in mind is, see that everything is properly done to make it sure that the desire of him who now is, but soon will not be, shall be fully carried out, and that in you no confidence has been mis- placed. Gifts Causa Mortis. It will be necessary at this place to speak of a peculiar class of gifts that have some elements in common with an unwritten will, and which are made use of for the same purpose as an unwritten will. A gift is a voluntary transfer of the property in any article, from the owner to the donee, as the party is called to whom a gift is made. Gifts are of two classes. First. Where A, who is in sound health, makes a gift to B, who also is in sound health. The motive for such a gift, which is termed "gift inter vivos " that is, a gift between the living, is good will, esteem, or affection. The second class is that of which we are now speaking. In this class of gifts the donor is expecting to die at any moment. He has no time to make a will. He does not wish to trust to the uncertainty of an unwritten will; so he calls the donee and makes a present to him of the article he desires him to have after his death. The donee accepts the gift; the title passes; the donor dies; and no one, excepting a creditor of the donor, can ever call in question the title to the gift. The executor has nothing to do with the 256 ELEMENTS OF LA W. article that has been so given away by the donor. Such a gift will revoke a former one in a written will. There are some very peculiar points about such a gift. If the donor dies before the donee has taken possession of the property, the gift fails and the donee can never get it. If the donee should die before the donor, then the property in the arti- cle goes back to the donor, and is again subject to his dis- posal. After it has been taken possession of by the donee, the donor may revoke his gift and give it to another. If the donor should not die but recover, then the gift be- comes void and he can take his property again. The only difference between gifts causa mortis and nuncupative wills is, that in gifts causa mortis a delivery of the property from the donor to the donee, or some one for him, is abso- lutely necessary before the death of the donor, while de- livery is not essential to a gift in a nuncupative will. Being so much safer and convenient in a greater num- ber of cases, gifts causa mortis are growing into repute and fast supplanting and filling the place once occupied by nuncupative wills. Real estate can not pass by a gift causa mortis. The donor may dispose of all his personal estate by such a gift. Care should be taken by the donee to act promptly so as to secure possession of the property before the donor dies. The gift of the donor's own note to the donee is not good as a gift causa mortis, for the reason it is only the gift of a promise to pay, and the donee can not take possession of the thing given, i. e. , the money, before the donor dies. A gift of the note of some third person payable to the donor is a good gift causa mortis, because the donor when he hands it to the donee conveys to hin» all his rights to the paper, and the donee gets possession of those rights before the donor dies. In the first case the executor would have to pay the note out of the estate of the donor, which estate would not be made any less, before the death of the donor, by the gift of his note or promise WILLS.. 257 to pay; whereas, on the other hand, the gift of the note of a third person does reduce the personal estate of the donor before his death, besides the executor can have nothing to do with the payment of such a gift. The gift of a note of a third person made payable to the donor, or order, will be good without an indorsement. If the donor has money deposited in a bank and gives the bank- deposit book to a donee, the delivery of the deposit book will pass the money in the bank to the donee. If a check on the bank be given, the money does not pass to the donee unless he goes to the bank and has it paid or passed to his credit before the donor dies. We are now ready for a definition of a gift, or donatio, causa mortis. It is a gift made by a person in sickness, who, apprehending his dissolution near, delivers, or causes to be delivered, to another the possession of any personal goods, to keep as his own in case of the donor's death. It differs from a legacy, inas- much as it does not require proof in a court of probate, and no assent is required of the executor to perfect the donee's title. It differs from a gift inter vivos, in that, it is revoca- ble during the donor's life. It is essential to a valid gift causa mortis that there should be a delivery, either actual, constructive, or symbolical. 258 ELEMENTS Olf LA W. CHAPTER X. TAXES. Civilization can not exist without organized society, and there can not be organized society without officials to transact the business and look after the interests of the organization. These officials must spend all their time in the employment of the society or State. They have no time to engage in other business whereby to earn a com- petent livelihood. Hence it becomes a necessity that they should be paid a salary by the State for their time and labor, so that they may thereby possess the necessary means of support. The money out of which the officers are to be paid must be contributed by the members of the society — that is, by the citizens of the State. If all the citizens were possessed of equal wealth there would be no trouble experienced in raising thei necessary funds to support the government. But such is not the case. There is no law more troublesome in detail to be enacted, enforced, or construed with satisfaction, or to which can be applied the laws of justice, tempered with the proper amount of ecjuity and mercy, than a tax law. The burden of the tax-bearer is and always has been great. It has always been an onerous one to bear. When the curtain goes up on the earliest records of man, we hear the groans of the poor man, the sigh of the laboring man, and the crack of the task-master's whip as it falls upon the back of the poor slave urging him on to renewed effort that his master may have the wherewith to pay his taxes. Many definitions have been given for the word tax — as, a tax is a burden imposed by the legislative power of a State upon the persons and property to raise money for public purposes ; a tax is a pecuniary burden imposed for the support of the government ; the enforced proportional contribution of persons and property, levied by the au- thority of the State for the support of the government, TAXES. 259 and for all public needs ; the money paid by the citizens for the support of the government. The last definition is the popular use of the word. In the other definitions the true idea of a bm'den is expressed. The whole idea of a tax may be more clearly expressed probably by an illustration, as follows: Suppose the gov- ernment, being in need of money, should say to the owner of a piece of land, you can not sell this land until you pay to the government a certain sum of money. If you do not pay the money by a certain time your land will be sold by the government, and after deducting the amount you will be paid the balance . Now the owner of the land is placed i% the following position : if he desires to sell the land he must first pay the sum named by the government, or he must reduce his price on the land that amount or the buyer will not take it, because the buyer knows that if he takes the land without the amount named being paid to the government, it will come to him and demand the payment, and, if he refuses to pay, will take the land and sell it. If the owner of the land should not desire to sell his land but continue to reside on it, he is compelled to pay the sum or his land will be taken from him. Now what does he do? He goes to the officers of the State and pays them a certain sum of money and receives from them a certificate, which declares that the burden or restraint has been taken from his land, and he can do as he pleases with it thereafter as far as the old burden is concerned. But taxes are recurrent, and hence the owner must annually buy the removal of this burden. The money with which he purchases this removal he calls his tax, thereby giving the name of the thing removed to that with which it is removed. So, then, we may be clear in saying that tax- ation is the act of a government in laying a pecuniary bur- den on the citizens ; that the burden so laid is a tax ; that the money paid by-the citizen to rid himself of the burden is called tax money or revenue. 260 ELEMENTS OF LAW. When we speak of taxation as a system we mean the means employed to gather from a people the revenues of its government. • As has been stated, tax laws have always been a source of great trouble to the statesman. One plan after another has been tried. Some contend for one method and some for another. The first great division is between those who prefer what is called a direct tax to that which is called an indirect tas. By direct tax, is meant that the burden should be laid directly on the person or property of him who it is intended should pay or lift the burden; by indirect tax, is meant that the tax should not be laid, in the first instance, on him who is to lift the burden by paying the tax-money, but .'should be laid on some article now in the hands of some o%her person who will pay the tax-money, and, when he sells the article to the real person sought to be taxed, he will add the amount of the tax-money to the price of the article, thereby reimbursing himself of the tax-money which he has paid. Each of these systems have their good and bad qualities. The direct has the advantage of uniting in it every element that is laid down by writers on political science as necessary to a just and equitable form of taxation. But it meets with the prejudice of the people. It is a very difficult thing to instill into the minds of the masses the idea that of all the expenses of life the one they should pay the most cheerfully is that of taxes. The benefits of good government are enjoyed but not appreciated by the citizen. It is like health — never appreciated by the pos- sessor until it is lost. Therefore, when the people know how much of a burden their taxes are, they begin to complain and seek some way to evade the burden and keep the money. On the other hand, while the system of indirect taxation violates the rules of the writers of economy, it has the ad- vantage of escaping the prejudice of the tax-payer, which is no small consideration. In fact, many times have gov- TAXES. 261 ernmer.ts resorted to this method to raise their revenue, when they would have as certainly failed if they had tried any direct method. • There are various kinds of direct taxes — as, The poll or capitation tax, which is the name of a tax im- posed upon the people at so much a head. Such a tax has always met with much resistance, and can not be said to be either just or politic. The property tax, which is a tax laid on the value of property. This has been the chief form of tax to which the States have recourse in rais- ing their revenue. When this form of tax is laid on land, it is spoken of as land tax ; when on personal property, as chattel tax. The land tax seems to meet general approval, but the chattel tax is not received without much objection. Among other things it is objected that its assessment is necessarily inquisitional; that it holds out constant temp- tations to tax-payers to defraud the State; and that such taxation adds a large addition to the revenue officers, and renders necessary more frequent assessments than would be required if taxation were confined to subjects more permanent in characteristics and ownership. The income tax, the amount of which depends upon the citizen's capacity to make money. It is a most object- ionable form of taxation. It is inquisitional in the highest degree. It virtually destroys the privacy of one's business by compelling him to open his books to the inspection of the assessor. It leads to the most shameful evasions of the law. It ought never to be resorted to unless in the greatest emergency. It will be observed that of all these forms of direct taxes the most satisfactory one is the land tax. There are several forms of indirect tax, as: excises and customs. Excises include all the taxes laid on domestic commodities, such as on sugar, tobacco, etc., both the manufacture and sale of the article. In this country we speak of excises as the Internal Revenue system. This 262 ELEMENTS OF LA W. revenue is collected by the National government selling stamps to the manufacturers, who place the stamps on the article which they manufacture ; or by the sale of licenses, which are certificates authorizing the holder to engage in certain kinds of business. This last form has been em- ployed by both the Federal and State governments. Customs include export and import duties. Export duties include the taxes which merchants must pay to secure permission to ship articles of merchandise out of a country. The Constitution of the United States forbids Congress laying such a duty. Such duties have been found usually impolitic, either as tending to diminish export trade or as leading to retaliatory legislation. Import duties are what are meant when we speak of the Tariff. There are two forms of laying the import duty, the specific and the ad valorum. By the specific duty is meant that so much is taxed on each article imported without regard to its particular value. By the ad valorum duty is meant that the amount of the duty in each case depends upon the value of the article. Each form has been found to possess certain advantages, but neither can be applied satisfactorily in all cases. In the adjusting, or attentpting to adjust them, Congress spends a great por- tion of its time. The tariff system is complex, difficult, and hard to understand. It is worthy of the student's diligent study. This form of taxation has been the chief reliance of the Federal government. And when we think with what ease and how imperceptibly the American people have paid their millions of dollars of taxes annu- ally, we are led to think they will be in no haste to lay aside so acceptable a form of taxation for any other that is as yet devised. The Federal revenue is disbursed to defray the expenses of the National government, to pay the National debt, to provide for the common defense and to promote the gen- eral welfare of the Nation. TAXES. 263 The revenue of the State is disbursed to defray the expenses of the State government, and to pay the State debt. The county taxes go to support the administration of the affairs of the county, and the township tax goes to defray the expenses of the township. The State tax of Ohio is divided into three funds: 1. " The General Revenue Fund" which goes to pay the expenses of the State, the benevolent, charitable, penal and reformatory institutions, for the payment of such other charges as may be made by law, and for the reim- bursing to the sinking fund such sums as have been trans- ferred from that fund. The amount that is now levied for this fund is one mill on each dollar of valuation of taxable property. 2. " The Sinking Fund" which goes to pay the interest and the constitutional reduction of the principal of the public debt of the State. The amount that is now levied for this fund is five-tenths of one mill on each dollar of tax- able property. 3. " The State Common School Fund" which goes for the support of the common schools. The amount that is levid for this fund is one mill on the dollar of the valuation of the taxable property of the State. The lien of the State for taxes levied for all purposes, in each year, shall attach to all real property subject to such taxes on the day preceding the second Monday of April, annually, and shall continue till such taxes, with any pen- alty which may accrue thereon, shall be paid. AH lands and town lots sold for taxes at delinquent sale, may be redeemed at any time within two years after the sale thereof; but any land sold for taxes, belonging to any person within the age of minority, or of unsound mind, or imprisoned, may be redeemed at any time within two years after such disability is removed. All personal property subject to taxation shall be liable to be seized and sold for taxes. The personal property of any 264 ELEMENTS OF LA W. deceased person shall be liable, in the hands of any executor or administrator, for any tax due on the same by any testator or intestate. CHAPTER XI. DOMESTIC RELATIONS. The laws of the household or family are those laws which affect man as an individual, not in the relation he maintains to the external world, but to his family. The great relations of life are, First. Master and servant. Second. Husband and wife. Third. Parent and child. Fourth. Guardian and ward. The family, as a family, has no distinct rights. Any injury done to a member of a family must be redressed as a private wrong, as the law does not recognize the family as a unit. So an act destroying a family must redressed as a private wrong. Domestic relations and rights are not all of the same origin. Husband and wife, parent and child, and infancy, spring from marriage'. Master and servant spring from contract, or, as the ancients held, from conquest, while gaurdian and ward are of judicial origin. Master and Servant. A master is one who has legal authority over the labor or exercise of another. A servant is the one over whom such legal authority is exercised by a master. Laborers of all kinds are called servants, and are usually divided into: slaves, apprentices, and hired laborers. I. Slave. The Romans said slavery arose from con- quest, we of late years say that it came by birth. The DOMESTIC RELATIONS. 265 slave had no legal rights and hence could not contract or do any business like a free man, neither could he inherit an estate except for his master, for, so soon as the estate descended to him, the master would take it as his own. Since the slave belonged to the master, all that belonged to the slave was the master's also. 2. Apprentice. An apprentice was one bound out for a term of years, usually to learn a trade or profession. The master had to clothe, feed and educate him. The act of apprenticing was done by deed of indenture, which is now used only by officials to secure places for children of the poor house. To distinguish between an apprentice and a servant for hire, it appears that one of the chief things of the inden- ture must be that the master is bound to give instruction, and that it is the object of the one apprenticed to be instructed as a learner. The legislature has the power to declare how, and in what manner an indenture may be made, and provide that it may be recorded and approved by a court. Teaching on the part of the master and learning on the servant's part, make it an apprenticeship. Anyone who can legally carry on a business can have an apprentice. By the common law a woman could not have an apprentice, but under statutory provisions she may. A master can not transfer his apprentice to another, because the apprentice is given to him on account of the good esteem in which he is held by the parents or on account of his proficiency in that particular line of business. It is a personal trust and limited to the conditions of the con- tract. The apprentice is not bound to follow his master into another State. Death of the father also operates as an emancipation of the minor: but if the minor wills to remain he can do so, and if he does, neither his mother nor his father's executor, but he himself, will get his wages. 266 ELEMENTS OF LAW. So also death of any party to the indenture will dissolve the relation. If the master of an apprentice should die and the relation or agreement is dissolved, the apprentice would still be entitled to all the collateral things, such as saddle and horse, etc., from the executor of his previous master. The appren- ticeship may be drawn so as to continue, upon the death of the master, to be binding upon and continuing in his executor or partner, as, if drawn to "A, and his executor. " A master may dismiss a servant for bad or immoral con- duct, but he can not so dismiss an apprentice. But he can correct him by punishment. If the apprentice gets married it is no ground for an avoidance of the indenture. If the apprentice is enticed away, the master can sue the enticer and get damages. The common law also compels the master to furnish medicine for the apprentice, on the ground that the apprentice, not receiving wages, can not purchase the med- icine he may need. On the other hand a master is not compelled to pay for the medicine of his hired servant. The master is entitled to all the earnings of the apprentice but he must also not fail to teach the apprentice his art, or trade, which he has in the indenture stipulated to do. If the master abuse his apprentice he can be brought to account by his parents or guardian. All the parties agree- ing, they may put an end to the indenture. 3. Hired Servants.A hired servant is one who cove- nants and agrees to do labor for and under the control and guidance of another, for which labor he is to receive a certain stipulated price. A contractor does not labor under the guidance of the second party, but simply performs the condition of his contract by pursuing an independent course of operation. The legal relation of master and servant arises from the hiring, which is a relation entered into by one party agree- ing to pay another party a certain sum of money and the DOMESTIC RELATIONS. 267 Other party agreeing to perform certain labor; and, in the' course of performing said labor, to submit to the will and. guidance of the one hiring, by doing the work in whatsoever manner he may choose to direct. A hiring for longer than one year, must be in writing. Since slavery is now illegal, will a hiring for life, i. e., service for life, be upheld as legal by the courts? In France it is looked upon as an annuity. The maxim is: No one is able to contract away his labor to perpetuity. At the com- mon law such contracts are not illegal, but they are against the spirit of our Constitution and institutions and it is very doubtful if any of our courts would uphold them. It will not follow that simply because slavery is illegal that a hiring for life will of itself be illegal — a slave has no legal rights — a laborer has. But whether a man can contract so firmly that he can not rescind it, is the question. Contracts of hiring can not be annulled but by the con- sent of all parties. The reason is: They contracted on the grounds of personal trust and confidence, so the master cannot legally transfer the labor of the servant without his consent to another. As the legal relation exists on account of the contract, neither party must be under any legal restraint or else the contract is void. At common law a married woman could not be a master because she was legally incapable of making a contract. But she could be a master or employ a servant as the agent of her husband, who was to stand good for the pay, but by statute now a married woman can be a master on her own account, and be herself liable personally for the pay of such servants. Minors cannot contract, hence they can not be masters. Duration of Contracts. The English and Amer- ican authorities do not agree upon the length of contracts, or as to the rule to be applied in determining the length of the contracts. The following considerations may be of 268 ELEMENTS OF LA W. much use in helping to determine the duration of con- tracts. 1. If the wages are to be paid weekly or inonthly, there will be a strong presumption in favor of the hiring being a weekly or monthly hiring. If this fact stands by itself, it will be conclusive of such hiring. 2. This fact may be modified, as, a yearly hiring may stipulate for a weekly, or a monthly, payment of wages, for the convenience of the laborer, but this will not change it from a yearly to a weekly or a monthly hiring. 3. The nature of the employment must also be taken into consideration: As educators, secretaries, ministers, or persons holding well paid offices would not be likely to en- gage for a period much less than a year. 4. Custom often governs this matter. Thus, in a suit brought by an editor, it was held, that unless a contract to the contrary could be shown, that a contract for a year would be presumed in favor of all persons working for newspapers. 5. Service for more than a year, or under contract for an indefinite time, will be held as a yearly hiring. This rule is supported by numerous EngHsh cases of good au- thority. But American authorities are not disposed to construe the hiring for one year, so closely as the English courts. The American courts will more readily assume it for a shorter period than a year, unless the contrary is clear. Mr. Wood in his work on Master and Servant says : ' 'A general and indefinite hiring is prima facie at will and, if a servant claims it for a year, it will be for him to prove it if he can. " On the 14th day of April, 1886, the General Assembly of the State of Ohio passed the following law, to take effect on and after May i, 1886: In all engagements to labor in any mechanical, manufacturing or mining business, a day's work, when the contract is silent upon the subject, or where there is no express contract, shall consist of eight DOMESTIC RELATIONS. 269 hows; and all agreements, contracts, or engagements in reference to such labor shall be so construed. If a servant leaves without just cause, or is dismissed upon sufficient cause before the stated period of receiving his wages, he shall not receive the wages earned since the last period of payment. The rule in that case being: Where a servant, whose wages are due periodically, re- fuses to obey his master, or so conducts himself as to just- ify the master in dismissing him without notice, he can not sue for his wages that may accrue from the time of his last periodical payment until his discharge. That is to say : If he was paid monthly, and worked three weeks after receiving payment he could not collect for those weeks. But if he had been unjustly turned off he could collect the sum due for the work done, and if he thereby sustained any damages collect these also. Where the servant has been unjustly discharged, it has been considered that the servant has a right to look upon the contract as still intact and may demand, on the expir- ation of his time, full pay. His right to recover being based on a contract service, and his readiness to perform the remainder of his service being held, in the eye of law, to take the place of his services. In such a case the serv- ant has two ways of recovering his wages: (i) He has a right to consider the contract a continuing one and receive damages for a breach of it. (2) He may consider the con- tract rescinded by the master, and sue him for his wages for the services rendered. If his wages are payable by installments he may sue and collect such installment when it becomes due. The wrong done to a servant by discharging him does not dissolve him from all duty to his master. If the serv- ant can, by reasonable exertions, protect himself from the loss to himself from this breach, the rule is, "he is bound to do so " — he has no right to remain unemployed from choice. The law will not sanction his laziness. If there 270 ELEMENTS OF LAW. be like employment offered to him by a party to whom there can be no just exceptions, or he can find work by ordinary exertion, he is bound in the first case to accept, and in the second place to make the effort. If he accepts the second place, the measure of damages is reduced ac- cording to the amount of wages earned in the second em- ployment. If he refuses to accept the work offered, the measure of damages is reduced the same as if accepted. In these cases the only claim he can have against his master is the time he necessarily remained idle. If the servant tries to get labor in the neighborhood where he resides but fails, he is free from the liability of loss. The servant, if hired by the year, will receive wages during a spell of sickness. A servant may be dismissed, if from sickness or from other cause, he becomes for a con- siderable period of time unable to perform his labor ; but, if he be not turned off, it will be no bar to his collecting the full amount of his wages according to the contract. If a servant is forcibly arrested or abducted against his will, and unlawfully, his contract is not broken ; if for his bad conduct, it breaks his contract. The direct voluntary act of abandonment will avoid the contract and the servant will not be allowed to sue for his wages. But if he is kept from fulfilling his contract by the acts of the master, or acts of Providence unforseen, he will not suffer a forfeiture of his wages. An agreement to pay*a servant what the master wills to pay, has been construed by the courts to mean reasonable wages. Where the stipulation in the contract is, that if the servant does extra work, i. e., over the specified time, he shall receive pay for the said extra time, the presumption is that he is to receive the same wages that he receives under the first contract. The master can not set off against a servant's wages a claim for articles lost or broken through the carelessness o f the servant. Neither can the master set off the value of a DOMESTIC RELATIONS. 271 gift or gratuity against the servant's wages, and, without agreement, the master can not set off his doctor's bill for attending the servant. Where, by the contract, the wages for the personal ser- vices of the servant is for a definite time and the wages are a gross price, and the servant works up to the end of the time, he can collect the whole price even if he has been absent during a portion of the period. The master has a right to action against anyone who injures his servant so as to lose his services. His right arises from the loss of the benefit of his service. If there be no loss of service there can be no cause for action. Where there has been a loss of service two actions will lie, one by the servant for personal injuries sus- tained, and the second by the master for the loss of service. The relation of master and servant can be terminated 1. By the expiration of the time agreed upon. 2. By mutual consent. 3. By the death of either party. 4. By the dismissal of the servant by the master for cause. 5. By the withdrawal of the servant for justifiable reasons. The causes for which a master may dismiss his servant have been reduced to three, namely: 1. Willful disobedience of a lawful order. 2. Moral misconduct. 3. Negligence. In all these causes, the court will inquire if there be sub- stantial causes for dismissal, or whether the master pro- voked the servant. The use of blasphemous or obscene language will be just cause for dismissal; also intoxication that will prevent a servant from doing his work. It is not necessary that the master discharge him immediately upon his doing the forbidden act. But it will be necessary that the master dismiss him in a reasonable time after com- 272 ELEMENTS OF LA W. mitting the act. If the servant becomes seriously ill he may be discharged. When the servant becomes incompe- tent to fulfill his part of the contract, the master may dis- charge him at once, although the contract says notice shall be given before a servant is discharged. Engaging in the same business as his master's, on his own account, will be just cause for his dismissal by the master. Husband and Wife. Of all contracts, that of mar- riage is the most important, and from it flow the most im- portant relations. Marriage is a contract, made in due form of law, by which a man and woman reciprocally engage to live together during their joint lives, and to discharge towards each other the duties imposed by law on the relation of husband and wife. Says Mr. Bishop, ' ' Marriage, as distinguished from the agreement to marry and the act of becoming married, is the civil status to one man and one woman united in law for life, for the discharge of each other and the community, of the duties legally incumbent on those whose association is founded on the distinction of sex. " The opinion of better writers and the weight of judicial opinion is that marriage is something more than a mere civil contract. Some authors call it a status, some a rela- tion, and others an institution. In New York, however, the courts have decided that it is a mere contract. It is also said to be in law an international institution. It may be classed under private international law. International law attaches certain incidents to it, and these must always be present to be valid. In some countries marriage is looked upon as a religious sacrament, and, as such, it is left to the church, and so far as the church has control, it is a part of the law, and it is modified and controlled by the law so far only as is deemed necessary. DOMESTIC RELATIONS. 273 Marriage is also said to be a natural right, subject to the regulation of law. While marriage is a status, it has its origin in a contract, but differs from a contract in this : The parties to a contract can change or alter it at will, but the husband and wife cannot dissolve a marriage relation at will. The State is a party to the marriage, but not a party to the contract to marry. Since the State is a party to the marriage it must also give its consent to its dissolu- tion, and this it does when a divorce is granted. A valid marriage is the voluntary union for life, of one man and one woman. It must be entered into by parties who are, in the first place, willing to contract, second, able to contract, and third, actually do contract, . in the manner recognized by law. In determining whether a marriage is valid or not, the following things must be con- sidered : I. Mental Capacity. If there is not understanding enough to attend to the ordinary business of life, by which is meant not merely a weakening, but a disarrangement of the mind, the party has not sufficient mental capacity to marry. Formerly, on account of the old religious idea that mar- riage was a sacrament, the marriage of an insane person was held to be valid, but this is now no longer looked upon as good law. For how could there be a marriage between sane and insane persons? It is an agreement — an insane person is unable to give assent, and without vol- untary consent there can be no marraige. But suppose such a ceremony has been gone through with between a sane and insane person, is the marriage void or simply voidable? The best authorities say it is void. In some courts it has been held only voidable. If the contract was entered into during a lucid interval on the part of the insane party, the marriage is valid. In trying to establish that the marriage is null, because the party is insane, it will not be enough to show that the party has been 274 ELEMENTS OF LA W. declared insane by a commission, but it must be shown affirmatively that he was insane at the time of the marriage ceremony. Previous or subsequent insanity will not affect the marriage. The court must be satified that the ground of nullity existed at the time of the alleged ceremony. But suppose marriage is contracted during a period of lunacy, and after sanity returns the parties continue of their own free will to live together, will it be a good mar- riage? The better opinion seems to be that such living together will be confirmative of the marriage, and it will be valid. But some courts hold that no subsequent recognition or cohabitation can validate that which at first was invalid. Formerly, when people were ignorant of the true con- dition of deaf and dumb persons, they were considered as idiots, and hence could not contract, but since science has shown the true condition of the unfortunate class, they have been considered capable of both contracting and of entering the marriage relation. They signify their consent by signs. If a party be intoxicated and still re- tains his reason, so that he knows fully what he is doing, he can enter into marriage, and it will be valid, but if he be so intoxicated as to lose all control of his reason, he will be unable to give his consent, and a marriage entered into by him in that state will be void. One may be so intoxi- cated, when married, as not to be able to give his consent, yet if after the return of his reason, on becoming sober, he still treats and recognizes his wife as his wife, the marriage will be considered valid. This on the same grounds as the case of insanity. 2. Age. The age of the parties must be taken into consideration to ascertain if the parties be old enough to contract a legal and binding marriage. At common law the age of consent was on the part of the males fourteen years, of the females twelve years. If marriage is contracted when under the age of consent, it DOMESTIC RELATIONS. 275 can be avoided, by either party, upon arriving at the age of consent. At common law one could not be bound till both were bound. But now, if one be of proper age, he is bound even if the other be not bound. If a couple under age of consent marry, and upon coming to the age of consent still continue to cohabit, it will confirm the marriage. In Ohio the age respectively of the male and female to consent to marriage is eighteen and sixteen. This is four years more than was required by the common law. Minors must have the consent of their fathers ; if they are dead or incapacitated, then of their mothers or guardians. 3. Consangtunity and Affinity. At the old common law marriage was forbidden between persons nearer of kin than the third degree. It was the seventh degree at the civil law, either of con- sanguinity or affinity. We follow the civil method of counting the degrees. The method of computing by the civil law is to begin at either of the persons in question, and count up to, and include, the common ancestor, and then downwards to the other person, calling it a degree for each person, both ascending and descending, and the sum of the degrees they stand from each other is the degree in which they stand related. Suppose we wish to find the degree in which a nephew and uncle stand related. Begin with the nephew ; to the father is one degree ; to the grandfather, two degrees; then down to the uncle one degree, making in all three degrees, which points out the relationship. So we say that an uncle and nephew are related in the third degree. In England, persons nearer of kin than first cousins can not marry; in Ohio, persons nearer of kin than second cousins can not marry. England forbids affinity as well as consanguinity, but, generally, in the United States affinity is no bar. At the common law, marriage within the prohibited 276 ELEMENTS OF LA W. degrees was not void, but only voidable. This is the rule in the United States. 4. Race and Color. At the common law, race and color constituted no barrier to a legal marriage. In most of our States statutes are passed prohibiting whites and blacks from marrying. Such is the law in Ohio. Marriage between Indians, where no law exists, according to the Indian customs will be legal. 5. Prior Marriage. Prior marriage avoids the second marriage ipso facto. But in order to render the second marriage void, the first one must have been in all respects a valid one. In some States the second marriage by statute is not null ab initio, but must be declared so by a decree of the proper court. In Ohio, if the husband or wife be absent for a period of five consecutive years without being heard from, and is not known to be alive, the other party can marry and not be guilty of bigamy. 6. Duress. Marriage should be with the free and untrammeled consent of the parties. If anyone, from such fear as may happen to a man or woman of good courage or resolution, and such that will include some danger either of death or bodily harm, contracts a mar- riage it is voidable. Mr. Bishop says: "That since mar- riage is only from consent, if a woman void of courage is in a fit of terror, from something that another woman would not have feared, the first is under duress." Chan- cellor Kent says: "A marriage procured by force or fraud is void ab initio, and may be treated as void in every court where its validity may be incidentally drawn. " Recent decisions have changed that rule and make it simply voidable by the party defrauded, and it must be avoided within the lifetime of both parties or else it will stand. Statutes have been passed making the marriage void from the dating of the decree of nulHty. If a marriage DOMESTIC RELATIONS. 'Tl'l brought about through duress be voluntarily continued by the party injured, such act of acquiescence will make it binding. 7. Fraud or Deception. Fraud, if it goes to the essence of the contract, will make it void. Fraudulent mis- representations as to character, health, fortune, family and standing, do not constitute such fraud as will avoid mar- riage. Any misrepresentation which could have been dis- covered by due diligence and inquiry will not avoid a marriage. 8. Formalities of tlie Ceremony. In this coun- try the courts have held that at common law no set for- mality was necessary to be followed, and there need not be present anyone in "holy orders" to solemnize the act. But in England the House of Lords held that to constitute a valid marriage at common law there must be present, and officiating, some one in "holy orders." In England, a Presbyterian minister would not do, because he was not in "holy orders," but in Scotland a different law prevailed, because there the Presbyterians were predominant. In Ohio, any ordained minister of any religious society or congregation, within the State, who has a license for that purpose, or any justice of the peace in his county, may lawfully join together, as husband and wife, all per- sons not prohibited by law. The parties must either obtain license for the purpose of marriage from the Probate Judge in the county where the female may reside, or notice of the intended marriage shall be published, in the presence of the congregation, on two different' days of public worship, the first publication to be at least ten days before the day of the marriage. If the Probate Judge desires the license for himself, he must apply to the Judge of the Common Pleas Court in his county, who will issue them to him. 278 ELEMENTS OF LA W. So far we have been speaking of the marital relation ; we now proceed to speak of its effect on the rights of the parties to the relation. To get a clear notion of this effect it will be necessary to look at the effect from the old standpoint, and from the new or present one. And, first, from the old standpoint of the common law. As soon as the marriage was solemnized the husband became pos- sessed of all the personal property which the wife pos- sessed before her marriage. She could no longer control it in any way. The husband likewise became entitled to the control of her real estate and possessed of all its income. On the other hand, he became liable for all her debts, those con- tracted before marriage as well as those after marriage, and this without reference to the fact whether he received any money or property from her by the marriage. The hus- band became Hable, also, for the wife's wrongful acts, having to pay damages caused by the same. This rule must follow of necessity the previous one, for if the hus- band secures all her property and is not to be responsible for the wrongful acts of his wife, she, not having any means by which to make reparation, would be free to do any and all manner of wrong on innocent third persons and no one could be held responsible. By making the husband re- sponsible, third persons have proper protection. But all this is now changed in Ohio and many of the other States. To-day, when a woman marries, her property which she possessed before marriage, as well as that she acquires afterwards, remains her own. She keeps full control over it; her husband has none, unless she may permit him to transact her business for her, and then he acts simply as her agent. On the other hand, the law has freed him of all liability for her debts. The husband can not be made to pay a single debt of the wife, whether it was contracted before or after marriage. Neither is he liable, in Ohio, for any of her wrongful acts. They stand, in relation to their DOMESTIC RELATIONS. 279 property rights, in the same position after as before mar- riage. There remains to be noted another duty of the husband that remains to-day as it was at the common law — namely, the duty to stipport his wife. This statement bears the fol- lowing qualification: the husband has the right to choose the place of their home. It is also the moral duty of the wife to go to his home and reside there. But there is also a qualification attached to this right of the husband — he must choose for her home a place fit for a respectable woman to live. It is at his home the husband must pro- vide for the wife. If she refuses, without lawful cause, to go with him to his home, he is under no obligation to pro- vide anything for her. If she leaves his home because it is not a fit place "for her to be, or he turns her out of his home without a cause, he will still be liable for her support — else it would be permitting him to profit by his own wrong. If they separate and Uve apart with each other's assent, and they agree upon a certain amount which the husband is to pay to the wife at regular intervals and the amount is paid, it operates as notice that the wife is to be dealt with on her own credit, and that the husband is discharged. Parent and Child. The law has wisely said but little of this relation. In its nature it is so complex that human laws can not go far in providing rules for its gov- ernment. In fact, the law says but little of the relation of husband and wife, except in relation to the support of the wife and the control of her property. But as to the inner, the nobler part of the relation, the law can do nothing, and, hence, wisely says nothing. It is the duty of the parents to maintain the child. But the manner in which it shall be maintained, depends upon the will and judgment of the parents. A man is not bound to maintain his step child, but if he receives him into his home, he is considered as adopting him as his own. 280 ELEMENTS OF LAW. and the law will not imply a promise on the child's part to pay for his support, neither will it imply a promise on the part of the step-father to pay the child for his labor. In Ohio, it is also the duty of the parents to send their child- ren, who are between the ages of eight and fourteen years, to the public schools, at least twelve weeks in each 3'ear, at least six of which shall be consecutive, unless the School Board or Directors, as the case may be, shall for good reasons, as provided by law, excuse the parents from send- ing the children to school. The parent has the right to control the child, and, if it becomes necessary, in order to make the child obey proper commands, the parent can correct the child. In doing so, he must use good judgment or else he will make himself amenable to the law. A school teacher, while the pupil is under his control, which is only while he is within the school-room and its adjacent yard, stands in the same rela- lation to the pupil as a parent to the child, so far as the right and power of correction is concerned, and is governed by the same law. In short, the whole relation of parent and child may be summed up in the statement that it is the duty of the parent to maintain, protect, and educate the child, and that it is the duty of the child to love, obey and cherish the parents, and to comfort and support them in their declining age. These duties are all suggested by the instincts of natural love and affection existing between parent and child. Guardian and Ward. In its widest sense the word guardian includes all who legally have the care and management of the person, or the estate, or both, of a child during its minority. In this sense a father is a guardian of his minor children, and in law is called "guardian by nature. " On the death of the father the mother becomes the guardian by nature. A ivard is one over whom there is a guardian. All minors are wards of their parent who is the guardian by nature. The guar- DOMESTIC RELATIONS. 281 dianship by nature lasts till the child is of age. This kind of guardianship only extends to the person of the child and not to his property. In the United States we also have what are called "guardians by statute, " so named because the power to appoint them was given by statute. There are two kinds of guardians by statute, one called " testa- mentary guardian, " because they are appointed by a testa- tor in his last will and testament; the other, "guardian appointed by court " is that appointed by the court as pro- vided by law. The whole law of guardianship is of such a nature that persons desiring information concerning it ought to present their particular case to their attorney and get his opinion and advice. It is a relation of so much impor- tance and one so easily abused that the court keeps all the transactions of the guardian open to inspection. It only remains to be added that in Ohio, neither an executor nor an administrator can be a guardian of an estate of any minor who is interested in the estate which they are admin- istering upon, but they may be appointed to be the guar- dian of the person only of the minor. Any male infant over the age of fourteen years, or a female over the age of twelve, shall have the right to select their own guardian, but if the infant does not select one to be his guardian, or selects an unsuitable person, the court shall appoint one. When a guardian has been properly selected by the infant and appointed by the court, he will remain guardian until the minor comes of age, unless he is permitted to resign or is removed by the court for cause. If the parent should appoint a testamentary guardian the minor has no choice, and such guardian will continue till the minor comes of age. And such a guardian will not be required to give bond, if such is the request in the will, unless the court deems it necessary to protect the interest of the child, then the court will demand bonds, and they must be given. The marriage of a female ward terminates the guardianship as to her person, but not as to her estate. 282 ELEMENTS OF LA W. CHAPTER XII. SLANDER AND LIBEL. There is no aristocracy in this country but that of a good name, and there is nothing of which one should be more jealous. A reputation for purity of character, hon- esty of purpose, and business integrity is better in the eye of all good men than riches and the accident of birth. It takes time, patience, and the resistance of manifold temptations to build up such a reputation. When it is constructed it is a precious monument. But guard it ever so carefully, the owner can not by his own efforts protect it from the attacks of those possessed of envy, or the spirit of revenge. If A, in the presence of others, were to speak words that reflected on the character of B, and these words were false, he would be said to slander B. If in the place of speak- ing the words he were to print them, he would be said to libel B. So we see that slander and libel are only different names for the same wrong accomplished in different ways. They both seek the ruin and destruction of the reputation of another. Slander is oral, while libel is by printing, writ- ing, pictures, images, or any thing that is the object of the sense of sight. Slander is defined as, words falsely spoken, which are injurious to the reputation of another; or, false, defamatory words spoken of another. The words spoken must be false or else there is no slander. Slanderous words are of two classes, first, those which are actionable in themselves, without requiring any proof that they are injurious to the person slandered, and second those which require proof of damage resulting from their being spoken. Words of the first class must impute to the person against whom they are spoken, (i) The commission of a BLANDER AND LIBEL. 283 crime for which, if guilty, he would be punished crim- inally, as to call another a "traitor," "thief," "high- wayman," or to say that he is guilty of "perjury," "forgery," "murder," and the Hke; (2) That the party has a disease that renders him unfit for society; (3) That the party is unfit for the office which he is now filling, and to which profit or emolument is attached ; (4) The want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade or business, in which the party is engaged. The law looks upon such words as being in themselves an injury to the person against whom they are spoken and so punishes the mere speaking of them. This is certainly right. Honest and fair-minded men established this rule, and it is most just. The second class of slanderous words are those untruth- ful statements which are not deemed in law to be neces- sarily of a damaging character. But if the party against whom they are spoken can show that he has received some injury from their being spoken, they will be declared to be slanderous and the party slandered can recover dam- ages. It is as much slander to repeat slanderous words as to be the author of them. It is a pity this rule is not more frequently applied to the gossiping character-wreckers of the country. Liibeli Everything, written br printed, which reflects on the character of another and is published without lawful justification or excuse is a libel. Libel is looked upon as being a more deliberate and diabolical attempt to ruin and destroy the character of an- other than slander. The law looks upon slander as often being the result of a quarrel or spoken under great aggravation . Again, at the most, but few can hear the words when spoken and then they know the occasion and are not so prone to give 284 ELEMENTS OF LA W. credence to them, nor are the words so likely to be re- membered and re-spoken. But in the case of libel quite a different state of affairs is presented. It takes time to write the words; a longer time to have them printed. There is plenty of time for the cooling of the passions and the party can then revoke the words. Again, when the words are printed or written they are put into a per- manent form and may live forever. Not only are they put into a permanent form but hundreds and thousands of copies of them are sent broadcast over the land. Who would not prefer being slandered among his friends where he can live down the lie than hbeled among friends and strangers so that he can not be able in any manner to retrieve the wrong? The law takes notice of this difference and will punish a libeler with a criminal prosecution, that is, if A libels B, B can sue him for damages, and the State will also prose- cute him, because the law says that the aggravation of the insult may be so great as to cause B to break the peace in attempting to chastise A for the insult. Formerly the law would punish the libeler whether the statement was true or not, on the ground that if it was true, it would be likely to sting the party into a rage to see his wrongs published to the world ; besides public decency demanded some protection. But now the truth of the statement, if it is pubhshed for the public good, to warn the public of the character of the person so that he may not mislead the people to put confidence and trust in him as one possessing good character, will be a perfect defense for its publication. This is a good rule of law. No one shoflld have any chance to cloak his wrongs behind the law nor be shielded from pubhc disgrace. If a man is of so de- spicable a character as to be unfit for public confidence he should not be given the chance to further deceive the public by punishing him who will give the public the needed information. Burke has well said: "Undoubtedly SLANDER AND LIBEL. 285 the good fame of every man ought to be under the pro- tection of the laws as well as his life and liberty and property ; good fame is an outwork that defends them all and renders them all valuable. The law forbids you to take revenge ; when it ties up the hands of some it ought to restrain the tongues of others." The reason why men give themselves over to endeavor to destroy the reputation of another is finely set forth by Steele, in the Tatler, No. 92. He says, " We reject many eminent virtues, if they are accompanied by one apparent weakness. The reflecting after this manner made me account for the strange delight men take in reading lampoons and scandals, with which the age abounds, and of which I receive frequent complaints. Upon mature consideration, I find it is principally for this reason that the worst of mankind, the libellers, receive so much en- couragement in the world. The low race of men take a pleasure in finding an eminent character leveled to their condition by a report of its defects ; and keep themselves in countenance, though they are excelled in a thousand virtues, ' if they believe they have in common with a great person any one fault. The hbeller falls in with this humour, and gratifies the baseness of temper which is naturally an enemy to extraordinary merit." It is provided by statute in Ohio, that actions for slander and libel must be brought within one year from the time the words are spoken or printed. After the lapse of one year no action can be maintained therefor. If either party dies before an action is begun none can be brought, and if an action has been commenced, and is pending in court and either of the parties die, the action will abate at once. 19 286 ELEMENTS OF LAW. CHAPTER XIII. CRIMINAL LAW. It is sometimes said that the whole object of the law is to protect rights, and that the chiefest of rights are those the violation of which constitutes a crime. A legal right is a well founded claim, the enjoyment of which is pro- tected by the law. If one is deprived of his right, the law will compel the wrong-doer to redress the injury. In their very nature, the violation of some rights are directly and chiefly of consequence to the individual de- prived of his right, while others are not only an injury to the individual whose right has been violated, but are also a direct and dangerous injury to the organized society under which the individual lives. Man must have a gov- ernment. He can not live alone. Two persons can not meet without some kind of rules or laws being called into requisition. The more numerous the company the more complex must be the rules that will be required to govern it. It is of the highest interest to the individuals of the company to know exactly what the rules are which they must observe. Without rules no one would know when he had done anything wrong. He has as good a right to consider his act right as another has to declare it to be wrong. Again, if a right is violated it must be redressed. By whom? Undoubtedly by the one injured. We see at once, then, that a company of persons can not exist with- out rules that have previously been declared, and which must be observed and obeyed. If anyone breaks a rule he should be punished. It being a law or right of the company that has been broken, it is the duty of the com- pany as a unit to redress the injury. The company can not act except through certain of its members chosen to represent it. Such persons are called its officers. Again, it is more convenient for the company to choose certain of its members to declare what shall be the laws of the com- CRIMINAL LAW. 287 pany than for the whole company to act. The selection of members will constitute another body of persons dis- tinct from those who were chosen to enforce the observance of the laws when they have been declared. After the laws have been made, and before there is any cause for punish- ment, there must be a violation of the law. But what amounts to such a violation of the law as will warrant the interposition of the officers to demand redress? This must be decided by the company. It is evident that, for the sake of convenience and that there may be a uniform determination of what does and what does not amount to a violation of the law, certain persons should be chosen for that purpose. This they do. Thus we have the company choosing three sets of persons who have entirely different duties to perform — one set to make the rules and laws of the company, whom we will call legislators; the second set to decide whether or not a particular action is or is not a violation of the laws, whom we will call Judges ; the third set, to compel the observance of the laws, and whom we will call the executive officers. We have now constructed a State, having its three departments — the executive, rep- resented by the Governor; the legislative, represented by the Legislature, and the judicial, represented by the Courts. It is the duty of the Legislature to declare, in the form of a law, what acts will be considered as an injury to the State. Such acts are crimes. It -is evident that some acts can not affect the well-being and interest of the State as much as some others. The Legislature takes notice of this fact and divides all crimes into two classes. The first consists of the minor acts, whose injury to the State is but slight,, and are called misdeiueanors ; the second class consists of all the acts that are considered dangerous to the well-being of the State, and are called felonies. The punishment is graded according to the class. A misdemeanor is never punished more severely than by a fine or imprisonment in the county jail. The 288 ELEMENTS OF LAW. least punishment for a felony is imprisonment in the State penitentiary, and may extend to the taking of the life of offender. The degree of the punishment determines the class of the crime. If the punishment is confinement in the penitentiary or the execution of the criminal, the act is called felony; if the punishment is anything less than confinement in the penitentiary, the act is called a misde- meanor. The word crime, in the minds of the people, implies an offense of a deep and atrocious dye. It is often spoken of in the sense of a felony. But in its widest and proper sense it includes both felonies and misdemeanors, being an act committed or omitted in violation of a public law for- bidding or commanding it. Crime is defined by Mr. Bishop to be a wrong which the government notices as injurious to the public, and punishes in what is called a criminal proceeding in its own name; while Mr. May de- fines it as a violation or neglect of legal duty, of so muck public importance that the law takes notice of it and pun- ishes it. By criminal proceeding is meant a pubHc prosecution, which is carried on by the county prosecuting attorney in the name of the State and at the expense of the State. All prosecutions for wrongs that are begun and carried on by the individual injured, in his name and at his expense, are called private or civil actions. It is the duty of the prosecuting attorney to prosecute all persons who are charged with committing some crime. That the student may have a clear conception of this mode of procedure, we will give an example. Suppose some crime is committed. The person who committed the act is arrested. Before he can be put on his trial he must be indicted first by the grand jury. The grand jury and how the grand jury is composed, etc., will be fully explained in the chapter on juries. The grand jury being convened, the prosecuting attorney files with them a bill CRIMINAL LAW. 289 charging the person suspected with the crime as being the person guilty of the act. He also gives to the grand jury the names of witnesses who are supposed to know the facts in the case that connect the accused with the crime. The grand jury summons the witnesses, and they must appear and give their testimony. The prisoner is not permitted to be at the session of the grand jury, neither are there any witnesses on his behalf permitted to appear before the grand jury. After the witnesses have given in their testi- mony, if the grand jury considers that there is sufficient evidence to justify the conclusion that the prisoner is the guilty party, the foreman of the grand jury writes on the back of the paper containing the charges perferred by the prosecuting attorney, the words " A true bill, " and signs his name. This bill so signed is called an indictment. An indictment is said to be the finding of a grand jury; and the person whom they charge with the crime is said to be indicted. The prisoner is next called before the court and arraigned, that is, the indictment is read to him and he is asked whether he is guilty or not guilty. If he con- fesses that he is guilty, that puts an end to further action, and judgment will be pronounced upon him. If he says ' ' not guilty " the trial will then proceed. He is to be tried by a different jury from the one which found the indict- ment. The trial jury is called the petit or petty jury, and is usually spoken of simply as the jury. If this jury, after hearing all the evidence in the case, considers that the pris- oner is guilty, they bring in a verdict to that effect. A verdict is the unanimous decision made by a jury and reported to the court on the matter lawfully submitted to them in the course of a trial of a cause. The verdict may acquit the prisoner or it may convict him. If the verdict is that of acquittal, that is, "not guilty, " the prisoner can never again be put on trial charged with the same offense of which he has now been acquitted. Before and during the trial the prisoner may have the 290 ELEMENTS OF LAU' . assistance of counsel, and he has the same compulsory pro- cesses to bring in witnesses to appear on his behalf, as the State has to bring in witnesses to appear against him. He must be tried in open court and the witnesses must con- front him, when giving their testimony. If the prisoner is found guilty, the judge pronounces the sentence of the law, which the sheriff executes, and then the injury of the crime is said to be redressed. We shall now proceed to define or rather describe the more common felonies and misdemeanors. Many fel- onies of the deepest die can not be mentioned in a work of this nature. I. Manslaughter. Before defining manslaughter, it will be necessary to first make some introductory state- ment so as to lead the mind up to an easy comprehension of the term. Homicide means the taking of human life. Homicide is of two classes, lawful and unlawful. Lawful homicide is that taking of human life which the law will not punish; it is of two classes, justifiable and excusable homi- cide. Justifiable homicide is where a soldier in time of war kills the enemy, or where a sheriff obeying the orders of the court executes a criminal. Excusable homicide is where one under a mistaken apprehension of the facts kills another, or by some accident or necessity that the party can not strictly be said to have committed the act wilfully and intentionally, and is therefore not charged with com- mitting an unlawful homicide. If one kills another in self defense, it is said to be an excusable homicide. An unlaw- ful homicide is called felonious homicide, on account of its punishment, which is either confinement in the peniten- tiary or death, which punishments, we saw, were distin- guishing marks of a felony. Felonious homicide is divided into two classes, murder and manslaughter. -The great distinction between murder and manslaughter is that in murder there is malice, and in manslaughter there is no malice. By malice, as used in criminal law, is not meant CRIMINAL LAW. 291 hatred, or ill will, which is its popular sense, but "the conscious violation of the law to the prejudice of another." When a person is in such a state of mind that he knows that the act he is about to do is a violation of the law, and that another's rights will be prejudiced or injured thereby, he is said to act with malice. It is evident then that an idiot, lunatic, or a person in a fit of instinctive anger, that is, so enraged as not to act with any regard to consequences, can not be guilty of a crime which requires malice as one of its ingredients. We are now prepared for a definition of manslaughter, which is the unlawful killing of another without malice. This species of homicide is that which takes place usually under great provocation, or during a mutual combat, or killing a person while doing an act of mere wantonness, or where the killing is the result of gross and criminal care- lessness. The punishment in Ohio for manslaughter is imprisonment in the penitentiary not more than twenty years nor less than one year. 2. Murder. Murder is the unlawful killing of another with malice. "An actual intent to take life, " says Bishop, "is not a necessary ingredient of murd'^r any more than it is of manslaughter. Still, if in a particular instance, this actual intent exists, it may make that murder which other- wise would not be criminal, or would only be manslaughter. " But in Ohio intent or purpose to kill is a necessary ingre- dient to constitute murder. Murder' in Ohio is divided into two classes, murder in the first, and murder in the second degree. The basis of this division is the kind of mahce, if the murderer acts with malice without premeditation and purposely kills another, it will constitute murder in the second degree only, but if he acts with premeditated malice, or malice prepense or aforethought, as it is some times called, it will be murder in the first degree. By premeditated malice is meant sim- ply this ; as malice in law is not used in the sense of gen- 292 ELEMENTS OF LA W. eral malevolence or unkindness of heart, or enmity towards a particular person, but a knowing or conscious violation of the law, malice aforethought or premeditated means that the person has made up his mind to kill another and only awaits the opportunity or occasion to execute his intent. It does not require any great lapse of time between the forming of the malicious purpose and its execution. Let us suppose a case that illustrates all three of these crimes. Suppose A insults B who on receiving the insult resolves to kill A for insulting him. The next day he meets A on the street and kills him. This would be mur- der in the first degree. Again, suppose that as soon as A had given the insult, which was most offensive, B became angry ; not so angry, however, but that he acted with regard to consequences, and instantly killed A, this would be mur- der in the second degree, for B knowingly did the act which constitutes malice, but he did it without any pre- meditation. But if in the third case, B became so angry that his passion so overcame his reason that he did not act with any regard to consequences, he would be said to act instinctively, that is, not knowingly or consciously, and hence without malice, so that his killing A under such cir- cumstances would only be manslaughter. It requires a very subtle and nice discrimination to be able to say when anger ceases to be deliberative, and be- comes instinctive. If the anger is so great that the party acts intentionally but lacks the power to regard the conse- quence of his act, he ought not to be punished so severe- ly as the one who possesses reason and acts knowingly. The punishment for murder in the second degree is im- prisonment in the penitentiary for life ; for ^^ first degree it is death. In Ohio all persons convicted of murder in the first degree are taken within thirty days after conviction to Columbus, and confined within the penitentiary and se- curely kept until the day designated for his execution. The criminal must be executed, on the day designated by CRIMINAL LAW. 293 the judge passing sentence, between the hour of midnight and sunrise. The execution takes place within the walls of the penitentiary within an enclosure permanently built for that purpose. 3. Arson. This crime has always been considered a very heinous one. It is defined by the common law as the malicious burning of the dwelling house of another. Its malignity appears when we consider how sacred is one's home, the terror and confusion which its burning occa- sions, and that, from the nature of the act, it is most usually committed in the night time when the occupants may be asleep and thus perish in the flames. Besides, if in thickly settled districts, the fire might spread into a gen- eral conflagration. The Romans usually punished the offender with death, but the common law was not so severe. , The building need not be consumed to constitute the crime, there need not even be a blaze, merely char- ring the wood of any part of the building so as to destroy the fiber of the timber will be enough to constitute the crime. The offender is not permitted to escape because the whole building was not consumed. He did all he could and deserves the punishment the same as though he were successful. At the common law the crime was mostly confined to dwelling houses, but by statute to maliciously burn or attempt to burn any other building of the value of fifty dol- lars will also be arson as well as the burning of any dwell- ing house. It would not be arson at the common law for a man to burn his own house, but if he sets fire to his own house so that it may communicate the fire to another and destroy it, and the other house is burnt, it will be arson. But in Ohio the statute reads the burning of ''any dwell- ling house," which of course includes the burning of one's own habitation, if it be done to destroy the home of his wife and children. It will be seen that in Ohio the attempt 294 ELEMENTS OF LA W. to burn is arson as well as the actual burning. The pun- ishment in Ohio is imprisonment in the penitentiary not more than twenty years. 4. Burglary. Burglary is defined to be the breaking and entering in the night-time the dwelling house of another with the intent to. commit a felony therein. The follow- ing points should be closely observed: (i) There must be a breaking. Mr. Bishop defines breaking as used in the above definition thus: "It does not require a separa- tion of particles, as when we break a stick ; but if, for ex- ample, one lifts a latch and opens the door or presses it open without any removing of fastenings, or with his hand raises an unfastened window, or thrusts himself down the chimney, or by a fraud practiced on the occupant procures him to open the door, he breaks the dwelling house. On the other hand there is no breaking when one enters through an open door, window, or other aperture; or pushes further open a door or window already open in part." (2) There must be an entry. It is not necessary to constitute an entry that the whole body of the person be within the building; nor is it necessary that even the hand be thrust inside the building, for it is considered to be an entry if the party puts in a hook with which to draw out the goods, or if, after passing the window or opening the door, he points a revolver and demands of the inmates to give up their money. It is on principal declared to be both a breaking and an entry if one discharges a ball from a gun outside the building with intent to kill some one within the building. It makes no difference whether the agent used to do the felonious act remains in the hand of the party or leaves it. The actor is considered to be pres- ent where the means operates, so that if the ball breaks through and enters the room, the one shooting is con- sidered as likewise having broken through, and entered bodily. CRIMINAL LAW. 295 (3) The time. The breaking and entering must both be done in the night-time. It is considered a more heinous offense to burn or destroy or break into a man's dwelling in the night-time than in the day-time. In the day-time the inmates can better defend themselves, or give alarm, or ilee ; also there is more likelihood of the criminal being detected and discovered. But in the night- time the inmates are comparatively defenseless, and, if awakened by the crash of breaking door or window, or by the startling demand, "Your money or your life," are unfit and unable to properly defend themselves. So the law wisely and justly constitutes the breaking into a house in the night-time a greater crime than if broken into in the day-time. At the common law the "night-time" included that time after sunset and before sunrise and during which a man's features can not be discerned by the day- light. No account is taken of moon-light. Now, by statute in England, the night-time begins at nine in the evening and ends at six in the morning. In Massachusetts "night-time" means from one hour after sun-set till one hour before sun-rise. Courts should not give the criminal any grace on account of time. (4) The place. At the common law it must be a dwelling-liouse, but now in- Ohio, by statute, the place has been extended to include nearly all kinds of buildings, such as store-houses, railroad cars, school- houses, factories, station houses, etc. (5) The intent. The breaking must be with an intent to commit a felony within the building. It is a burglary if the breaking and entering is done with intent to commit any act the punishment of which is imprisonment within the penitentiary or death. So that if one were to break into a house in the night-time to assault and whip the owner it would not be a burglary, but if he breaks in with the intent to steal property of any value, however small, it will be burglary in Ohio by statute. The punishment for 296 ELEMENTS OF LA W. burglary is confinement in the penitentiary not more than ten years nor less than one year. 5. liarceny. Larceny is the taking and carrying away of the personal goods of another with intent to deprive the owner of them. The common expression for larceny is "stealing." Larceny is spoken of as simple and compound. Simple larceny is simple theft without any circumstances of aggra- vation, as when one seeing the pocket-book of another drop on the street picks it up and hides it. Compound larceny is where the stealing is attended with other cir- cumstances that aggravate the crime, as to steal from the person of the owner. Larceny is also spoken of as petit and grand larceny. This division is of value only as de- termining the amount of the punishment. Petit larceny is for some small sum, the stealing of which is not punished with confinement in the penitentiary, while grand larceny is the stealing of an amount that is large enough to be punished by confinement in the penitentiary. In Ohio any sum under thirty-five dollars is punished by fine and imprisonment in the county jail, but thirty-five dollars and over sends to the penitentiary for a period of not less than one year nor more than seven years. The elements of larceny are: (i) It must be personal property; (2) It must be taken against the owners consent. If he gives his consent, it will not be larceny, although the consent was secured by fraud ; (3) There must be a taking and carrying away, but the least removal of the article will be a sufficient carrying away to make the crime, as, the mere taking hold of the article and lifting it out of its place. That the thief did not get away with the article is not to be considered. Compound larceny from the person is called robbery, which is defined thus: The felonious and forcible taking from the person of another of goods or money to any value, by violence or putting in fear. It is. enough to make rob- CRIMINAL LAW. '297 bery if the goods are in the presence of the person and under his control without being actually attached to his person. The force required is slight, as the snatching a thing from the hand is sufficient. The putting in fear is determined by the occasion. What is sufficient fear in one case may not be sufficient in another. It depends upon the strength and character of the robber and the strength and situation of the person robbed. The law ought to show but little favor to anyone who attempts to rob. The punishment for robbery is confinement in the penitentiary not less than one year nor more than fifteen years. 6. Embezzlement. Embezzlement is where one, who has lawful possession of another's property, unlawfully appropriates it to his own use. Embezzlement stands as a complement of larceny. This crime has been devised for the purpose of punishing the fraudulent and felonious appropriation of property which had been intrusted to the person, by whom it was con- verted to his own use in such a manner that he could not be convicted of larceny for appropriating it. To constitute larceny the property at the time of the taking must be in the possession of the owner, but in embezzlement it is not in the possession of the owner but in the possession of him who converts it to his own use. The great mark is the difference between the possession and custody of the thing. If the wrong-doer is in posses- sion of the property he can commit embezzlement, but if he is only in custody of the property he cannot commit embezzlement, but larceny. He also can commit larceny without custody in the first instance. An illustration will make this clear. Take the familiar example of a clerk in a store. During business hours he is custodian of the goods for the purpose of selling them. Suppose after business hours he enters the store-room and takes some article. This act is larceny, 298 ELEMENTS OF LAW. because the article was in the possession of the owner and the clerk had neither possession nor custody. During business hours he is the custodian, but the goods are not in the possession of the clerk but are in the possession of the owner, so that if he takes the goods then, it is also larceny. If he, during business hours, opens the till of the store and takes the money, it is larceny, because he is not in possession of the money but simply has the custody of it. Suppose the clerk sells an article to a customer and receives the price for it, but, in place of putting the money into the till, he puts it into his pocket and keeps it, what is the offense? One thing is sure, until the money reaches the till the owner of the store can not be said to be in possession of the money. If he is not in possession the taking can not be larceny. Again, the clerk had lawful possession of the money but it was not his money, neither was it any longer the money of the customer, it must have an owner and that owner of necessity must be the owner of the store. Now we have this state of facts — an owner not in possession ; another, not the owner, in lawful possession ; the one in lawful possession converts the property of another to his own use, which act we find exactly fills the definition of embezzlement, and such it is. The distinction between larceny and embezzlement is so fine that in many cases when presented the most skillful attorney will be unable to say positively which it is, larceny or embezzlement. Embezzlement is substantially a breach of trust, and it is peculiarly the crime of those who are employed as clerks, servants, agents and officers. The punishing is the same as that of larceny. 7. Assault and Battery. A battery is the unlaw- ful beating of another. Assault can not be accurately defined, but is that which, if carried into execution, would amount to a battery. It is an attempt or offer, with force or violence, to do a personal injury to another. Bishop defines it thus : ' 'An assault is any unlawful physical force, CRIMINAL LAW. 299 partly or fully put in motion, creating a reasonable appre- hension of immediate physical injury." If one within shooting distance points a loaded gun at you it is an assault, and if it was apparently loaded, but in fact was not, it is an assault the same as if it were loaded, because it put you in fear, while in the first case you were in peril, either will constitute assault. If one lifts his fist to strike you, and you get out of his way, it is an assault. In every battery there is necessarily an assault. The punishment for assault or assault and battery is not more than two hundred dollars' fine or imprisonment not more than sixty days, or both. 8. Affray. An affray is where two or more persons, by mutual consent, fight in some public place, to the terror of the people. The place must be public, not secluded. The reason the phrase " by mutual consent " is used, is that it would be manifestly unjust, to hold one guilty of an affray who has been assaulted by another and must fight to defend himself. The punishment in Ohio is fifty dollars' fine or imprisonment for not more than ten days, or both. 9. Bribery. Bribery is the corruptly offering, solicit- ing or receiving of any undue reward as a consideration for the discharge of any public duty. The receiving a proper salary is not an undue reward, which means any pecuniary advantage, direct or indirect, beyond that naturally attached to or growing out of the duty. Voting is a public duty and no reward given, yet when one has cast his vote for a certain candidate the result may be good, and hence a benefit to himself, but such benefit or reward can not be bribery. The punishment in Ohio is imprisonment in the penitentiary not more than five years, or fine of not more than five hundred dollars, or both, and disqualification from holding any public office or appointment under the State. 10. Forgery. Forgery is the fraudulent making or alteration of a writing to the prejudice, or endangering, of another man's right. 300 ELEMENTS OF LA W. Any writing or printing or matter engraved is the sub- ject of forgery. Forgery may consist in writing the whole instrument and also the name ; or it may consist in signing the name of another to that which is already written ; or signing one's own name when it is the same name as that of another person, provided that the party signing his own name did so intending that the public should think it to be the name of the other person, which was signed to the instrument; or altering the date of the instrument; or the amount of money to be paid ; or changing the rate of interest or time of payment, etc. It of course must be a »«<2fer««/ alteration. The gist of the crime is to put another person in danger of losing something of value by the act. The punishment prescribed for forgery differs according to different documents, but ranges usually from one year up to twenty years' confinement in the penitentiary. II. Counterfeiting. A coin is a piece of metal stamped with the value of the metal and the name and seal of the government. Coin is manufactured out of gold and silver. Sometimes copper is spoken of as coin. Counterfeiting is a species of forgery, and consists in the making of a false coin in the similitude or imitation of the genuine with intent to defraud. The great difference between forgery and counterfeiting consists in the fact that in counterfeiting there must exist a similitude be- tween the false coin and the genuine, while in forgery there is no simihtude, for the only writing in existence is the one that is forged. In the United States, Congress has the sole power to coin money, and hence it is the seal of the United States that is forged in the act of counter- feiting. So the United States must punish for the act of coun- terfeiting. But, while the offense of counterfeiting is complete when the false coin has been made, as soon as it is passed into circulation, another and distinct offense is committed. For passing the false coin tends to CRIMINAL LAW. 301 destroy public confidence, and is an injury to trade. This last offense is a detriment to the States in their domestic or private capacity, as well as to the Federal government. This being true, we find the States passing laws to punish the offense of passing counterfeit money within their territory. The Federal government also punishes the passing as a distinct offense. While the act of counterfeiting is a violation of the seal of the United States alone, the States may and do punish anyone who does the act within their territory. Such an act, as well as the knowingly passing counterfeit money, is punished in Ohio by imprisonment in the penitentiary not less than one year nor more than fifteen years. 12. Perjury. In the affairs of men, if honesty is not found, business is impossible. Man is so constituted that, as a rule, he must believe what is told him by another who has never given him any occasion to doubt the veracity of his word. Man, also, naturally prefers to speak the truth rather than what is false. These two dis- positions are complements of each other, and constitute the solid foundation on which all business relations and confidence must rest. But this natural bent of the mind to believe what another says, is easily overcome by dis- covering that the other party did not speak the truth. If he speaks falsely once, why not a second and a third time, and so on? So the mind reasons, and having detected falsehood once, becomes suspicious and doubt- ful. Trust and confidence in the man's word are gone, and it must be backed and supported by other testimony of persons who are considered trustworthy, or it will not be believed. It has also been found that when men depart from the truth to spealc that which is false, there is a motive which is stronger than the natural bent of the mind to speak the truth, that influences them. Now if men can devise and apply a counter motive which is more powerful than the one 20 302 ELEMENTS OF LAW. which tends to lead him to speak falsely, he will choose to speak the truth rather than the untruth. Such a counter motive has been discovered and its application has been attended with most satisfactory results. This counter motive is what is spoken of in law as an oath.. Mr. Green- leaf gives the nature and object of an oath in the following words: " One of the main provisions' of the law, for secur- ing the purity and truth of oral evidence, is, that it be delivered under the sanction of an oath. Men in general are sensible of the motives and restraints of religion, and acknowledge their accountability to that Being, from whom no secrets are hid. In a Christian country, it is presumed that all the members of the community entertain the com- mon faith, and are sensible to its influences; and the law founds itself on this presumption, while, in seeking for the best attainable evidence of every fact in controversy, it lays hold on the conscience of the witness by this act of religion ; namely, a public and solemn appeal to the Supreme Being for the truth of what he may utter. The administration of an oath supposes that a moral and religious accountability is felt to a Supreme Being, and this is the sanction which the law requires upon the conscience, before it admits him to testify. An oath is ordinarily defined to be a solemn invocation of the vengeance of the Deity upon the witness, if he does not declare the whole truth as far as he knows it; or, a religious asseveration by which a person renounces the mercy and imprecates the vengeance of Heaven if he does not speak the truth. But the correctness of the view of the nature of an oath has been justly questioned by Mr. Tyler, on the ground that the imprecatory clause is not essential to the true idea of an oath, nor to the attainment of the object of the law in requiring this solemnity. The design of the oath is not to draw the attention of God to man ; but the attention of man to God ; not to call on him to punish the wrong-doer; but on man to remember that He will. " CRIMINAL LAW. 303 Many persons object to taking an oath on the ground that they are of the belief that, in the New Testament, oaths are forbidden to be taken ; that no man has a right to peril his eternal salvation upon a condition which, from intellect- ual or moral imbecility, he would be so liable to violate ; and that no one has a right to oblige another to place him- self under such a condition. That the conscience of such persons may not be abused, the law permits them to make an affirmation in the place of taking an oath. There is no legal difference between an oath and an affirmation. The punishment for a violation is the same for both. The only distinction is on moral grounds. No one is guilty of perjury unless all of the following things concur: (i) The person who administers the oath must have the lawful authority to do so ; an oath taken before a private person, or before an officer having no right or power to administer an oath in the particular case, will not amount to perjury ; (2) the proceedings must be judicial; (3) the statement made by the party under oath must be false ; (4) he must know it to be false, or have no reasons for believing it true ; (5) the fact falsely stated must be material to decide the case at issue ; (6) the witness must knowingly and purposely state the fact falsely, with the intent to deceive and mislead the court or officer. Hence, a statement made inadvertently or by surprise, or by mistake of the import of the question, can not be ground of a charge of perjury. From the above statements, we may now safely give Dr. Wharton's exhaustive definition of perjury. His definition is as follows: " Perjury is the willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding, as a part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding." 304- ELEMENTS OF LAW. The punishment for perjury is not less than three years nor more than ten years imprisonment in the penitentiary. The stigma and disgrace of perjury is as deep and as last- ing as that of murder. Self-Defense. The subject of self-defense comes properly in connection with excusable homicide. It is the right every one has to protect his person and property from injury. It is probably the most valuable right that a citizen can possess. There are injuries which if inilicted, can never be redressed. It is in the prevention of such injuries that the law permits the person sought to be injured to take the life of him who seeks to inflict the injury, if, to prevent it, such a measure is necessary. It is a primary principle that one may carry the defense of himself further than the simple defense of his property. It is also evident that it should not be permitted . one to take life in the protection of any kind of property, nor of his person at all times and in all circumstances. The taking of life is a very serious matter, and is the exercise of the highest prerogative. The life of every citizen is fully under the protection of the law. The law operates or puts in force its protection by means of the officers of the law. But there are times when no officer of the law is pres- ent to lend such protection when it may be needed the most. It is then that the undoubted right of self-defense springs up. The law puts equal value on the life of each private citizen. But, if a choice must be made between sparing the life of a quiet and peaceable citizen, and one who is a dangerous member of society, and who is attempting to commit a breach of the law, the law certainly prefers the taking of the life of the latter. Besides, if the quiet citizen was not permitted to defend himself, and his fife should be- taken, then the State would be called upon to take the life of the murderer, to redress the injury to the State from the loss of a good citizen. By granting the permission to take life in self-defense, a worthy life is spared, the State retains CRIMINAL LAW. 305 the benefit of a good citizen, and is saved the expense and trouble of a criminal prosecution and execution. But there is no need of seeking any ground upon which to rest the right other than that every one has the right to prefer to save his own life to that of another, when it becomes necessary that one of them should be destroyed. This rule, however, is never permitted to extend to the taking of the life of an innocent third person. The rule and exception may be illustrated thus: Suppose A is seeking to destroy the life of B. There is no way that B sees by which he may escape from A and save his own life but by taking A's life. This he does and the law excuses the act. But suppose B sees that if he takes the life of C he can escape from A and thereby save his own life. He can not do this. If he does, it is murder. The reason is plain. A voluntarily placed himself in the wrong, and if he loses his life thereby it is his own fault, but C is in no wrong, and hence the law will not permit B to prefer his own life to that of C. One reason for this may be that it is highly probable that B was at fault, at least in some degree, in bringing on the quarrel between him and A, while 'C could not be at fault in the least degree. It has been said by Baldwin, one of the United States Judges, that a mariner at sea should sacrifice himself to a passenger, when his services are not specially needed for the preservation of life. " He is bound," said the court, ' ' to set a higher value on the life of others than on his own ; and, while we admit that sailor and sailor may lawfully struggle with each other for the plank which can save but one, we think, that, if the passenger is on the plank, even the law of necessity justifies not the sailor who takes it from him. If two passengers were struggling for the same plank, which would save but one, each is, in the eye of the law, justified in trying to wrest it from the other." One principle is clear, namely, that if one is assaulted with murderous intent, he may, to save his life, take the 306 ELEMENTS OF LAn. aggressor's life. But who is to determine when such mur- derous assault is made ; it of necessity must be by the person assaulted. If he should be mistaken in the nature of the assault, which was not with intent to kill, but only to commit a misdemeanor, to clear himself he will have to show that, under the circumstances of the case, any reasonable man would have come to the same conclusion that he did in considering the assault to be murderous. Chief Justice Parker says : " When, from the nature of the attack, there is a reasonable ground to believe that there is a design to destroy life, the killing of the assailant will be excusable homicide, although it should afterwards appear that no felony was intended." The question of flight to save taking life is one upon which various opinions are held. It makes little difference what may be the individual's opinion upon this question as to the dignity and manliness of the act of flight, while it is of the highest importance to know what the court may think on this point. The courts all agree that the person attacked is under no obligation to flee before taking the life of his assailant, provided the assault is with murderous intent, or, if it is made with a deadly weapon. If the assault is not with murderous intent, or with a deadly weapon, the courts say that "the party assaulted should retreat to the wall, or other inter- posing obstacle, before he is excused in. taking the life of his assailant. " Mr. Walker says : " The cowardly doctrine of retreating as far as possible before resisting, would seem to have no more foundation in law, than it has in the common feelings or practice of mankind. " On the same point Mr. Dexter says : "I respect the laws of my country, and revere the precepts of our holy religion; I should shudder at shedding human blood ; I would practice mod- eration and forbearance to avoid so terrible a calamity; yet should I ever be driven to that impassable point where degradation and disgrace begin, may this arm shrink palsied from its socket, if I fail to defend my own honor. " CRIMINAL LAW. 307 These sentiments may do well enough to fire the blood of the jury, and inspire them with a feeling of sympathy by arousing the spirit of the heroic within them,, but they might not be found to be a solid foundation on which to stand and seek to excuse yourself for taking the life of your fellow man. Besides they were spoken when the question of personal vindication of one's honor had more influence than it has to-day. However, it must be admitted that there are certain acts which entail such a degree of degradation and disgrace that, to one possessed with a fine sense of personal honor, the desire to kill him who is about to commit, or is committing the act, must be very great. Such would be the defense of the honor and purity of one's home. It has been said, to the honor of the American jury, that it has never required the life of a father, son, or brother for taking the life of him who has entered their home and despoiled it of its purity and its honor. It sometimes happens that one party seeks and commences a quarrel with another who resists the assault with more vigor than was expected by the assailant. If the party who began the quarrel succeeds in wholly with- drawing himself from the conflict, and, in good faith, has retreated to a place of apparent security, his right of self- defense is fully restored, and if pursued by his antagonist and there attacked in a manner to endanger his life, he is excused in taking life if it becomes necessary to save his own life. Not only is one possessed of the right to take life in defense of his person but also in defense of his habitation or home. Judge Campbell, of Michigan, lays down the law on this point thus: "A man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life." The doctrine of retreating has no application when one is 308 ELEMENTS OF LA W. assailed in his own house. If the assailant entered with the permission of the owner, he must be requested or ordered to leave the dwelling, and then if he refuses to do so after being so requested, the owner rriay eject him, but he must use no more force in doing so than is absolutely necessary. If the assailant entered the house without permission it is not necessary to make a request of him before using force to eject him. The owner of property other than his home is not excused in taking life in defense of it. The law puts a higher value on life than on property. It is not simply in the protection of his home as so much property, that the law permits the owner to take life in defense of it, but in early times, our forefathers were compelled to protect themselves in their habitations, by converting them into holds of defense; and so the dwelling house was called a castle. And from thence has grown up the familiar doctrine, that, while a man keeps the doors of his house closed, no one has the right to break in, under any circumstances, except particular cases where it becomes lawful for the purpose of making an arrest of the occupant, or the like. CHAPTER XIV. CORPORATIONS. So far in this work we have been speaking of the rights and liabilities of natural persons. We are now to speak of the rights and liabilities of an artificial ^person, i. e., one created by law. We saw in the chapter on partnership how it became necessary that two or more persons should unite their capital, skill and labor so as to meet the demands of organized society. It will be remembered that when a member of a partnership dies or leaves the firm it is dissolved, and all the firm business and accounts must be wound up. CORPORATIONS. 309 As long as the needs of society could be supplied by small firms, composed of two or three partners, no partic- ular inconvenience was observed. But when the demand requires the union of many persons, the probability of an early dissolution becomes greater in proportion to the number of partners. Work demanding a long time to complete it can be more safely intrusted to a firm com- posed of but two or three partners than to one composed of fifty or one hundred partners, so far as the probability of the firm failing to complete the work on the account of dissolution by death or disagreement of the partners, is concerned. It is in just such great undertakings that require a vast amount of capital and a long time to complete them that the greater certainty and stability is required. To meet this want the law has provided a fiction. It has deter- mined to create an artificial being and endow it with the power of perpetuity, so that it may outlive the greatest undertaking that may be demanded by society. But a person, to be effective in society and in business, must possess a mind, a voice, eyes, ears, hands, and feet. These the law is powerless to create, so it proposes to supply them from natural men possessing these requisites. The act of the law creating this artificial person and endow- ing it with these faculties is called an act of incorporation, by which is meant simply this: A number of persons de- siring to unite themselves together so as to carry on some business undertaking, as banking, railroading, manufactur- ing, etc. , apply to the State for a writing, called a charter, which gives them a name by which they shall be known and by which they must do their business. As soon as the charter is signed by the parties, the law will treat the name they have adopted as the name of a distinct person from any one of the natural persons signing the charter. The law no longer recognizes the fact that there are any natural persons forming the association which has been 310 ELEMENTS OF LA W. incorporated and is now called a corporation, but treats the name of the corporation as the name of the artificial person whom the law holds responsible for every act which the corporation does, punishing it for any wrongful act it may do, but never punishing any of the individual members forming the corporation. Herein is the first great difference between a partnership and a corporation. Both are com- posed of natural persons, but in a partnership the law does not recognize the organized capacity but looks to the indi- viduals who compose it, and holds them personally and individually responsible for every act of the firm, while in a corporation the law never looks to the individual mem- bers, but always treats of them in their organized capacity as an artificial person. As the law does not recognize any natural person who may belong to the corporation, if any one of its members should die it will not dissolve the corporation. It would go on just the same after as before the death or with- drawal of one of the members, and in the eye of the law it is identically the same corporation as when it was created. This, then, is another great distinction between a partnership and a corporation — namely, the death or withdrawal of a member of a corporation does not dissolve the corporation, while such an event does dissolve a part- nership. Akin to this last idea is another: if the death or withdrawal of a member of a corporation does not change the identity of the corporation, neither does the addition or introduction of a new member in the place of an old one change its identity. As the corporation is composed of persons who act and think for it, in general the voice of the majority is treated as its voice, and hence if a majority see fit to admit a new member, they can do so against the protest of the minority membership, and such an act will not dissolve the corpora- tion. This is also another mark of distinction between a partnership and a corporation. A majority of a firm can CORPORATIONS. 311 not take in a new member against the will of a single partner, and the mere buying the interest of a partner will not make the purchaser a member of the firm, while the buying of the interest of a member of a corporation organized for the purpose of doing business will make the purchaser a member of the corporation. It is this power of old members leaving or dropping out of the corporation" and new ones taking their places without making any change in the least in the identity of the corporation, that qualifies it for meeting and fulfilling any demand of society, either in the amount of capital required or the time necessary to complete the work. Hundreds of corporations are to-day carrying forward to completion the work that was begun when the persons who now compose them were not members. There is not a single need of society that can not be met and supplied by a corporation, and its great superiority over partnership in every point of utility, certainty, and protection to its own membership, as well as third persons, has caused the multiplicity of corpora- tions until, at present, large partnerships can not be found, and all kinds of business is in the hands of corporations. Such being the importance of this subject, we shall set forth quite at length the fundamental principles of corpor- ations. Kinds. In England, certain of their ecclesiastical officers are granted the rights and powers of a corporation. Such a corporation being composed of but one member at a time is called a sole corporation. All other corpora- tions being composed of two or more persons are called aggregate corporations. Another classification is made on the basis of the object of the corporation. If the object of the corporation is the distribution of charities, such as hospitals and the like, it is termed an eleemosynary corporation; all others whose object and purpose are secular are termed lay corporations. The lay corpora- tions are subdivided into two classes, public, those whose 312 ELEMENTS OF LA W. object is the government of a part of the people, or which are exclusively the instruments of the public interest, as incorporate villages, cities, townships, etc. , and private, those which are created wholly or in part for purposes of private gain or emolument, as banks, railroads, com- panies, etc. As a corporation is an artificial person it must of neces- sity transact all its business through agents, who are called its officers. So the law which governs the transactions of the officers of a corporation is the law of agency, which we have already studied. The authority or power of the / agency of ,the chief officers is usually set forth in the charter by which they must be governed. Every corporation has a corporate name. In this name it must do all its business, and it is by this name it is known in law and to the world. Corporations have the power to buy and hold property that is necessary for corporate purposes. They of course can sell their property to further the same purpose. When we speak of a corpor- ation as being immortal, all that is meant is the power it has, of being perpetuated by the introduction of new members without destroying its legal identity. The student has often heard the statement that a corporation has no soul. It is reported by Lord Coke, that Chief Baron Manwood demonstrated the statement, in the following manner: " None. can create souls but God; but a corporation is created by the King; therefore, a corpor- ation can have no soul." It is this view of a corporation that is the foundation of the statement that a corporation can not be guilty of a crime, as treason, murder, or any other felony. A corporation can not be arrested or imprisoned, nor punished in any way except by fines or a revocation by the State of its charter, which would destroy its existence, and hence is a kind of capital punishment which it suffers on account of its wrongful act. CORPORATIONS. 313 Congress has the power to create corporations to be used as instruments in carrying out its functions. It has seldom used this power, which is a limited one at the best; nevertheless, the right and power to create corporations exists. The numerous corporations that we see around us every- day are the creatures of the States. The State legisla- ture possesses the power to create corporations at will, unless prohibited to do so by the State constitution. The constitution of Ohio expressly forbids the legislature creat- ing any corporation by special act conferring corporate powers, and provides that all corporations must be created under a general law passed by the legislature. This law points out the method to be pursued by those desiring to become incorporated. The following is the provision of the law in Ohio under which all corporations are to be created, showing the steps necessary to be taken by the persons desiring to be incorporated : Any number of persons, not less than five, a majority of whom are citizens of the State, desiring to become incorporated, shall sub- scribe and acknowledge, before an officer authorized to take acknowledgmeAs of deeds, articles of incorporation, which must contain: 1. The name of the corporation, which shall begin with the word "The" and end with the word "Company," unless organization is not for profit. 2. The place where it is to be located, or where its principal business is to be transacted. 3. The purpose for which it is formed. 4. The amount of its capital stock, if it is to have capital stock, and the number of shares into which the stock is divided. The articles of incorporation after having the official character of the officer before whom they were acknowl- edged certified by the Clerk of the Court of Common Pleas of the county in which the acknowledgment is taken, are 314 ELJiMENTS OF LAW. filed in the office of the Secretary of State, who shall record the same, and a copy duly certified by him shall be prima facie evidence of the existence of such corporation . If a society which has existed for sometime without articles of incorporation becomes incorporated, the con- tracts and acts done before becoming incorporated are not binding upon the corporation, because the corporation, being an artificial person, never existed till created by law, and hence was not in existence when such acts were done or contracts entered into. An incorporated society can not ratify the acts done by the unincorporated one, because the law requires the following facts to concur in order to make a good ratification: (i) There must be a principal and an agent at the time the act is done. (2) The agent must do the act in the name of the principal and fexpect him to ratify the act. (3) The principal often, knowing fully all the facts in the case, voluntarily adopts the act of the agent. It is very evident that not one of these points can exist in the case presumed. However, no trouble is experienced in making the property of the society the property of the incorporation by a simple gift, and the incorporated society can assume and pay the debts of the old society if it sees fit to do so, but, if it chooses not to assume them, the members of the old society will have to stand good for its debts. No affront or injury to the unincorporated society can be taken up and redressed by the incorporated one. The corporation can not do any acts outside of the authority conferred on it by its charter, which is the cer- tificate of its incorporation. If it does go beyond its authority, the act, lacking authority to be done, is declared void. Such acts are called "ultra vires" i. e., acts beyond its power. If the corporation is one for gain and profit, its capital stock, the sum raised by the mutual subscription of the members of the corporation, is divided into a certain CORPORATIONS. 315 number of shares. Anyone holding a share is a member of the corporation. In such a corporation, the purchase and transfer of the share is all that is required to make one a member. There can be no more members than the number of shares. When a member sells his share he loses his membership, which is assumed by the purchaser of the share. In corporations not created for mutual gain and profit, such as literary societies and scientific associations, there is no capital stock which is divided into shares, the owner- ship of which constitute one a member of the corporation, but, to become a member of such an incorporated society, one must be received as a member by vote of the society. The number of the members that must vote in favor of admitting anyone to membership is determined by the rules of the society. Every incorporated society has the inherent power to expel any obnoxious member whose action and conduct are detrimental to the welfare of the society. They must, however, proceed in a proper way to expel him, giving him a chance to defend his actions or justify his behavior. This leads us to speak of the right and power of a corpor- ation to make by-laws, which are the rules and regulations made by a corporation for its own government. This power is incidental to every corporation, although the power is generally granted by express terms in the charter. Unless the charter specifies who shall make the by-laws, all the members have a right to take part in making them. The by-laws of a corporation must not conflict with the constitution of the United States, and acts of congress made in conformity to it, nor to the constitution of the State in which the corporation is located, and acts of the legislature .constitutionally made. The by-laws must be reasonable, and they must not be retrospective in their 316 ELEMENTS OF LAW. operation. They are binding on all the members of the corporation. If the corporation misuses its power or does not live up to the end of its creation, the State, in a direct action in the courts for that purpose, may take away its charter. The corporation is said to have forfeited its charter because of non-user or mis-user. The corporation may not desire to continue longer and then it will surrender its charter to the State officers. In the great Dartmouth College case, which was argued by Daniel Webster before the United States Supreme Court at Washington, in 1818, it was decided that the charter granted to a private corporation was in the nature of a contract, and hence came under the protection of the provision of the United States' constitution forbidding a State to pass any law impairing the obligation of a contract. The result of that decision is that unless the State, when it creates a private corporation, reserves the right to modify, change, or revoke the charter, it can never do so. Since that decision was made, the States have expressly reserved the power to revoke or modify the charters of all private corporations. The charter of a public corporation has never been held to be a contract, so the State can revoke such charters at any time. From what has been stated concerning corporations, the student will now be prepared for a definition of the word corporation. A corporation is a body, consisting of one or more natural persons, established by law, usually for some specified purpose, and continued by a succession of members ; or, a corporation is a bodyj created by law, composed of individuals united under a common name, the members of which succeed each other, so that the body continues the same, notwithstanding the change of the individuals who compose it, and is, for certain pur- poses, considered as a natural person ; or, a corporation is CORPORATIONS. 317 an artificial being, invisible, intangible, and existing only in the eye of the latv, being a creature of the law, it has only such rights and powers as are given to it by the law. Angell and Ames, in their work on corporations, state the object of corporations thus: "The object in creating a corporation is to gain the union, contribution and assistance of several persons for the successful promotion of some design of general utility, though the corporation may at the same time, be established for the advantage of those who are members of it." Much of the most important business, which requires an extensive capital, is done by corporations. On the same point Chancellor Kent says: "It was chiefly for the purpose of clothing bodies of men in succession with the qualities and capacities of one single, artificial, and fictitious being, that corporations were originally invented, and, for the same convenient purpose, they have been brought largely into use." By means of the corporation, many individuals are capable of acting in perpetual succession like one single individual, without incurring any personal hazard or responsibility, or expos- ing any other property than what belongs to the corpor- ation in its legal capacity. In Ohio, however, by a provision in our State constitu- tion, not only the property that belongs to the corporation in its legal capacity is liable for the corporation's debts, but each shareholder can be compelled to pay out of his other property a sum equal to the amount of his share or shares in the stock of the corporation. For instance, suppose A has a fifty-dollar share of the capital stock of a corporation which becomes insolvent. A will lose the share and will be liable to pay fifty dollars more, if so much is required of him as his pro rata share to pay all the company's indebtedness. If the indebtedness is more than the aggregated sum of the contributions of all the shareholders to the full face 21 318 ELEMENTS OF LAW. value of their shares, they can not be called upon to pay any more. The corporations in the United States have done more towards the upbuilding of the prosperity and glory of our country than any other agency. They have opened up the Great West and North West, and given their hidden treasures to the world. They have carried the civilization of the Atlantic to the Pacific, and while on their way have given, as presents to the valley of the Mississippi, whole cities, the wealth and splendor of which out-rival the gifts of Mark Antony to his Egyptian Queen. What would America be to-day without her systems of canals, railroads, telegraphs and telephones? What would she be without her manufacturing, mining, and commercial agencies? Would she not be shorn of her strength and her glory if she were robbed of her press, her publishing houses, and her common schools? Where would be her crown of honor, if from her brow were taken her colleges, her universities, and her churches? Yet these, all these, are corporations ! While we thus admire the achievements of corporations in America, we must not close our eyes to the dangers that arise from the multiplicity of so many artificial persons. There is great danger in permitting a corporation to acquire too much power. Under the restraint of proper laws, corporations are most beneficial, but, if they are permitted to violate the laws with impunity, they will be as great a source of evil as they are now of good. It is the duty of our statesmen and our judges to restrain a corporation strictly within the purview of its charter. If this is done, and proper care is exercised in the creation of corporations, they will be of inestimable value to the social, pecuniary and intellectual interests of our country. COURTS. 319 CHAPTER XV. COURTS. In the United States we have two classes of courts, one called the Federal and the other the State courts. To understand fully the reason and the difference between these classes it will be necessary iirst to look at the differ- ence between the Federal and State governments. There are three terms which are so frequently misused, or used interchangeably, that we can make no progress until they are properly distinguished. They are the terms State, Government, and Administration. A State is an organized society that recognizes no superior; one that can do any and every act of sovereign or uncontrolled power. England, France, Germany, etc., are samples of a State, when the word is used in its proper sense, and as it is used by all publicists. There is no act of legislation but that the English Parliament can do. It is by a bold figure of speech said to be omnipotent. On the other hand it is clear to all that neither the . United States nor any one of the several States, as we use the word State, is a State in the proper sense, but that it requires the Union of all the Federal powers with those of a single State, to have as great an aggregate of power as that possessed by a State, such as England. The meaning we give the word, when we say the State of Ohio, is local, and means one of the commonwealths which form the United States of America. To make this statement clear let us look at the powers of the Federal government that can not be exer^sed by Ohio, but which are necessary to be exercised by a society worthy of the title of State. The Federal government declares war, makes peace, raises and supports the army and navy, coins money and regulates all the values thereof, makes treaties, sends and receives foreign ministers, not one of which acts can the 320 ELEMENTS OF LAW. State of Ohio or any other of the American States do, which plainly shows that they fall far short of being States in the true sense. On the other hand the State of Ohio can do many things necessary to be done by a State which the Federal powers can not do, and which also go to prove that the Federal power is not a State in the true sense. Some of these acts referred to are the powers of the States to regulate the laws governing marriage and divorce, the rules of descent of inheritance, the laws of real and personal property, etc. Government. In every organized society there must be certain institutions or powers established. By institutions or powers, as used in political science, is meant a law, rite, or ceremony enjoined by authority or a permanent rule of conduct. This institution, or the aggregate of institutions, which is established by an organized society called a State, is termed the Government of the State. Hence the form of government depends upon the institutions of the State. Administration. Every organized society must have officers to transact its business, and to look after its welfare. By Administration is meant the aggregate of those persons in whose hands the reins of govern- ment are for the time being. In this country the term includes the President and the Cabinet officers. In England it includes the Prime Minister and his chief Secretaries. These are the primary and proper meaning of these terms, tfut, as stated above, the student will frequently see them used interchangeably. Government is the most frequently misused, being spoken of in the sense of State. Civil government is divided into three great divisions or departments, namely. Legislative, Executive, and Judicial. These are co-ordinate and co-extensive with each other. The legislative department enacts the laws, the executive COURTS. 321 enforces them, while the judicial construes- them. In a State there is no subject but what the legislative branch of the government can reach by enactment, consequently the judicial branch of the same government can also take cognizance of the same acts that can be reached by the legislative branch. So in England, being a State, there need be but one system of courts, that is, a series of courts, beginning with a court of very limited jurisdiction and ascending to one high, superior court, which is to be the dernier resort for all cases of litigation. But in this country such a system is not possible with the present relation of the States to the Union. If the student will draw a circle and allow its area to represent the whole of the power of the legislative depart- ment of the government of any State, and then draw a diameter, thereby bisecting the area of the circle, and mark one of these equal parts National or Federal, and the other Ohio or Illinois, he will have somewhat of an idea of the division of the legislative department of our form of government. For all the questions that may arise in the part marked National, the Congress of the United States must enact the laws, and the legislature of Ohio or Illinois, for the questions that arise in the part marked Ohio or Illinois. It will be seen at a glance that Congress can not enact any laws that are of a local nature, that is, apply the needs of a State only, but only such laws as are national, that is, that afifect questions which are of equal interest to all the States of the Union. Likewise the legislature of Ohio can not pass any laws but what are of local interest to the State. But the sum of the powers of Congress and the Legislature equal the legislative power of any State. Since we have divided the Legislative department of our form of government into two parts, so likewise we have 322 ELEMENTS OF LAU. divided the other two departments, the Executive and Judicial. The Judicial department of our form of government is divided into two parts, and each has its own system of Courts. The system that construes the laws of Congress is called the Federal system, or Courts; the one that con- strues the laws of a legislature is called the State system, or Courts. We shall speak of each system in its order. Federal Courts. A court is a place wlure justice is judicially administered. It is a body in a government to which the public administration of justice is delegated. Very often ^& judge, when there is but one, or the judges collectively, when there are several, is spoken of as the court. The Constitution of the United States provides that the judicial power of the United States shall be vested in one Supreme Court, and such inferior courts as Congress may from time to time ordain and establish. Congress under this power has established two inferior courts, one called the Circuit and the other the District Court of the United States. The Circuit Courts are superior to the District Courts. There are but nine Circuit Courts, while each State in the Union has at least one District Court, and the most of them have two. Ohio has two, a Northern and a Southern District. Ohio is in the Sixth Circuit, which comprises four States — namely, Michigan, Ohio, Kentucky and Tennessee. As the Constitution does not provide for the number of judges who shall sit on the Supreme Bench at the same time. Congress must regulate that by law. The present law provides for one Chief Justice and eight Associate Justices. It will be seen that there are as many judges of the Supreme Court as there are Circuit Courts. Each of the Supreme Judges is assigned to a certain Circuit over which he has supervision. Stanley Matthews, of Ohio, is in the Sixth Circuit. Besides the Supreme Justice, each COURTS. 323 Circuit has a Circuit Judge. Our present Circuit Judge is Howell E. Jackson, of Tennessee. Each District Court has also a judge. The District Judge of the Northern District of Ohio is Martin Welker, of Wooster, Ohio; of the Southern District, George R. Sage, Cincinnati, Ohio. All the Federal judges hold their office for life or good behavior. They can be removed from their office by- impeachment. The present Judges of the Supreme Court are: Chief Justice, Morrison R. Waite, of Ohio; Associate Justices, Samuel F. Miller, of Iowa; Stephen J. Field, of Cali- fornia; Joseph P. Bradley, of New Jersey; John M. Harlan, of Kentucky; William B. Woods, of Georgia; Stanley Matthews, of Ohio; Horace Gray, of Massa- chusett's, and Samuel Blackford, New York. In 1855 Congress established the Court of Claims at Washington. At present it is composed of one Chief Justice and four Associate Judges, who hold office during good behavior. It is the theory of government that a State can not be sued against its will. Before 1855, if anyone had any claim against the National Government, he had to bring his matter before Congress for a hearing. If Congress granted his request it was allowed ; but if Congress refused it, there was no appeal or any place else to seek redress. But this procedure was found to occupy too much of the time of Congress ; so the Court of Claims was established to give relief to Congress. In 1863 Congress established the Supreme Court of the District of Columbia, composed of six judges, who hold their office during good behavior. As Congress has full power of control over Territories, it also establishes the courts of the Territories, and these officers do not hold their offices for life or good behavior, but for a certain time, removable by the President. 324 - ELEMENTS OF LA W. Hence, the Territorial courts are not, strictly speaking, Federal courts. There remains one other Federal court to be mentioned, which is the United States Senate sitting as a court of impeachment. State Courts. In Ohio we have the State Supreme Court, consisting of five Judges elected for a term of five years, one being elected each year ; seven Circuit Courts, each consisting of three Judges, who hold their office for a term of six years, one being chosen every two years. The county court or Court of Common Pleas is next. There are ten Common Pleas districts in Ohio. Each district, except the first, consisting of Hamilton county, is subdivided into three smaller divisions or dis- tricts. The next is the Court of Probate. There is one for each county. The next and last is the court of the Justice of the Peace, of which there are several in each township. Recapitulation. The Federal courts are the Senate, sitting as a court of impeachment, the Supreme, the Circuit, the District, the Territorial, the Court of Claims, and the Supreme Court of the District of Columbia. The State courts are the Supreme, Circuit, Common Pleas, Probate, and Squires. The jurisdiction of a court means the power to hear and determine a cause. Each inferior court has jurisdiction over some determinate territory. All causes arising within its territory is within its territorial jurisdiction. The juris- diction of certain inferior courts extend to certain acts or amounts of money, etc., and if anything beyond these happen within its territory it has no jurisdiction, simply from the fact that the cause arose within that territory, but the cause must be taken notice of by some superior court. If a certain court has the sole power to take cogni- COURTS. 325 zance of a particular act it is said to possess exclusive ]\ins- diction of that matter. If either one of two courts can take cognizance, they are said to possess concurrent ]unsdiction. As some courts are superior to others, if a cause is begun in an inferior one and the parties have the right, after judgment is rendered in the lower court, to carry it to a higher court, the right of the higher court to take cogni- zance of the matter is called appellate jurisdiction. Original jurisdiction means that the case is to be brought in that court in the first instance. The judges of the State court may be removed from office by concurrent resolution of both houses of the General Assembly, if two-thirds of the members elected to each house, concur therein. But no such removal shall be made, except on complaint, the substance of which shall be entered on the journal, nor, until the party shall have had notice thereof, and an opportunity to be heard. The judges of the Federal Courts are paid the following salaries, viz: The Chief Justice $ lo, 500 Associate Justices, each 10,000 Circuit Judges 6,000 District Judges Northern District, 3. 500 Southern District, O 4,000 Court of Claims, each 4, 500 Supreme Court, D. C Chief Justice 4- 500 Associate Justices, each 4,000 Territorial Courts, each 3, 000 In Ohio the judges receive the following annual salaries, viz: Supreme Court, each $ 4,000 Circuit Court, each 4,000 Common Pleas, each 2, 500 326 ELEMENTS OF LAW. The seven Circuit Court districts are composed of the following counties respectively: First, Hamilton, Clermont, Butler, Warren, and Clinton. Second, Preble, Darke, Shelby, Miami, Montgomery, Champaignj Clarke, Greene, Fayette, Madison, and Franklin. Third, Mercer, Tan "Wert, Paulding, Defiance, "Williams, Fulton, Henry, Putnam, Allen, Auglaize, "Wood, Hancock, Hardin, Logan, Union, Seneca, Marion, "Wyandot and Crawford. Fourth, Brown, Adams, Highland, Pickaway, Ross, Pike, Scioto, Lawrence, Gallia, Jackson, Meigs, Vinton, Hocking, Athens, Washing- ton, and Monroe. Fifth, Morrow, Eichland, Knox, Licking, Fairfield, Perry, Morgan, Muskingum, Coshocton, Holmes, Wayne, Stark, Tuscarawas, and Del- aware. Sixth, Lucas, Ottawa, Sandusky, Erie, Huron, Lorain, Medina, Sum- mit, and Cuyahoga. Seventh, Lake, Ashtabula, Geauga, Trumbull, Portage, Mahoning, Columbiana, Carroll, Jefferson, Harrison, Guernsey, Belmont, and Noble. The Common Pleas Districts of the State are composed of the following counties respectively: First District — Hamilton. Second District — First Sub-District— Butler, Preble, Montgomery, Darke. Second Sub-District— Champaign, Miami, Clarke. Third Sub-Distrio^-Fulton, Henry, Putnam. Fourth District- First Sub-District— Lucas, Ottawa, Sandusky, Erie, Huron. Second Sub-District — Lorain, Medina, Summit. Third Sub-District — Cuyahoga. Fifth District- First Sub-Districf^Clermont, Brown, Adams. Second Sub-District— Ross, Highland, Fayette. Third Sub-Districf^Franklin, Pickaway, Madison. Sixth District — First Sub-District— Licking, Knox, Delaware. Second Sub-District— Morrow, Eichland, Ashland. Third Sub-District— Wayne, Holmes, Coshocton. Seventh District — First Sub-District^Falrfield, Perry, Hocking. Second Sub-distric^-Jackson, Vinton, Pike, Scioto, Lawrence. Third Sub-District— Gallia, Meigs, Athens, Washington. Eighth Districts First Sub-District^Muskingum, Morgan, Noble, Guernsey. Second Sub-District— Belmont, Monroe. Third Sub-District— Jefferson, Harrison, Tuscarawas. THE JUR Y SYSTEM. 327 Ninth District— First Sub-Distriot^-Stark, CarroU, Columbiana. Second Sub-District— Trumbull, Portage, Mahoning. Third Sub-District— Geaupa, Lake, Ashtabula. Tenth District- First Sub-District— "Wood, Hancock, Seneca, Hardin. Second Sub-District— Crawford, Marion, "Wyandot. Third Sub-District — Union, Logan. CHAPTER XVI. THE JURY SYSTEM. If there is any one subject upon which every person, young men especially, ought to be thoroughly informed it is that of the jury system. Around it are entwined chap- lets of flowers, woven by the immortal bards of the Saxon race. In its forum have been fought the mightiest forensic combats of the ages. When England was trying to rid herself of foreign oppression, it stood by the side of liberty and freedom and parried the thrusts of the ecclesiastical bigot and the stroke of the tyrannical king. When a sub- ject of England was bold enough to declare that a king is not divine, it stood between him and his irate sovereign and saved the subject's life. It was the city of refuge for the defender of virtue, the friend of liberty, and the cham- pions of freedom. It was the moat thrown round the home that made it indeed both the castle and the home. It was all these, but is it so to-day? This is the living question. It is up for discussion. It has its friends, its enemies. Some love it for v/hat it has done, others for what it is doing. On the other hand, some condemn it for what it is doing, and others for the evil they fear it may do in the future. That the student may see both sides of this weighty question, that has challenged the attention and considera- tion of the wisest of judges, statesmen, and philosophers, 328 ELEMENTS OF LAW. handled by two master writers of the present time, we have personally secured the permission to print in this work their articles for and against the jury system. Before introducing these articles the present working of the system will be stated, so that the student will be the better prepared to understand the points made in the dis- cussion, pro and con. Kinds of Juries. There are two kinds of juries — one called the grand jury, the other the petty or petit jury, that is, large and small jury. The object and purpose, as well as the mode of procedure, of these different kinds of juries are widely different. The object and purpose of the grand jury is to discover, examine into, and ferret out all the crimes committed within its respective county, and, if possible, discover the criminal and bring him to trial by finding an indictment against him. Its mode of procedure is, that all its deliberations are done in secret. On the other hand, the object and purpose of the petit jury is to pass upon questions oi facts, that is to determine whether or not a certain thing did or did not exist, or certain words were or were not spoken, or a certain person did or did not do a particular specified act, etc. It has to do with civil acts as well as criminal ones, while the grand jury deals wholly with crimes. The petit jury proceeds in open court to hear all the evidence for and against the question in dispute, which is termed the issue, and then as a general rule they retire to some room by themselves where they determine among themselves what the verdict shall be. Sometimes they render a verdict without quitting the jury box. How the Grand and Petit Jnrors are Chosen in Ohio. The Court of Common Pleas of each county shall at the first term thereof in each year, determine the number of persons necessary to be selected in each county, annually, to serve as grand and petit jurors. The Clerk of THE JUR Y SYSTEM. 329 the Court of Common Pleas of each county shall, on the first Monday of September, annually, proportion the num- ber of jurors determined upon among the several townships, and the wards of municipal corporations in his county, according to the number of male inhabitants therein of twenty-one years of age, and shall make, in writing, a statement of the number of jurors so apportioned to each township and ward, and forthwith deliver the same to the Sheriff, who, at the time of giving public notice of the gen- eral fall election, shall insert a clause in his notification giv- ing the trustees of the several townships, and the council- men of the several wards, notice of the number of persons to be returned for jurors therefrom respectively. The trustees of each township, and the councilmen of each ward, shall, oti the day of such general election, annually, select, of good, judicious persons, having the qualifications of an elector, and not exempt by law from serving as jurors, the number of persons designated in the notice to be returned for jurors, therefrom, and shall make a list thereof, and deliver the same to iht judge of election, who returns to the Clerk of the Court the poll-book of the election ; and such judge of the election shall deliver the list to the Clerk at the time he returns the poll-book. If the trustees or coun- cilmen fail to make out or return such a list of jurors as prescribed above, the Clerk will notify them at once to do so, and they must then immediately meet and make out a list and send it to the Clerk. The Clerk of the Court shall, within Jive days from the receipt of the list, write the name of each person so selected, upon a separate piece of paper, which he shall put into a box, to be provided by him at the expense of the county, and securely kept for that pur- pose, and shall, at the Clerk's office, between the hours of ten o'clock forenoon and twelve o'clock noon, on 'Ca.^ fourth Monday previous to the sitting of the Court of Common Pleas, in the presence of the Sheriff, by whom the box shall be shaken before the drawing is made, so as to mix the 330 ELEMENTS OF LA W. ballots on which the names are written, and in the presence of any other citizens who may choose to attend, proceed to draw twenty-seven ballots, and such additional number of ballots, if any, not exceeding eight, as the judge of the Court of Common Pleas in vacation or term may direct, but if any ballots so drawn shall bear the name of the per- son who, at the time of such drawing is known by the Clerk to be deceased or to have become a non-resident of the county, every such ballot shall be destroyed and shall not be counted, and the Clerk shall continue such drawing until he shall have drawn the required number of ballots, exclusive of those destroyed as aforesaid, the persons named on "Ca^ first fifteen of which shall be summoned as grand ]vixoxs, and those named on the remainder shall be summoned as petit jurors, the first twelve of whom shall constitute the regular petit jury. If any one of the regular petit jurors can not serve for legal cause, then his place will be filled by that one of the extra number, ordered to be drawn by the judge, whose name stands next on the list to the twelve regular jurors, that is, suppose the judge orders eight names besides the twenty-seven to be drawn. That would make in all thirty-five. The first fifteen are grand jurors, the next twelve are the regular jurors, and then the next called name will be the first called to fill a vacancy, etc. The jurors, both grand and petit, are sum- moned by the Sheriff at least ten days before the first day of the term of court at which they are to serve. Grand Jurors. When the first day of the term arrives they meet in the court room, and being called into the jury-box, the Court will appoint one of them foreman. When the foreman has been appointed the following oath is administered to him: Saving yourself aiid fellow jurors, you, as foreman of this grand inquest, shall diligently inquire, and true presentment make of all such matters and things as shall be given you in charge, or otherwise come to your knowledge, touching the present service; the counsel of THE JUR Y SYSTEM. 331 the State, your own and your fellows', you shall keep secret, unless called on in a Court of Justice to make disclosures ; and you shall present no person through notice, hatred, or will, nor shall you leave any person unpresented through fear, favor, or affection, or for any reward, or hope thereof; but in all your presentments you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding. Then the following oath is administered to the other jurors: " The same oath which A. B. , your foreman, hath now taken before you on his part, you, and each of you, shall well and truly observe and keep on your respective parts." After receiving the charge of the Court as to secrecy, the grand jurors then retire to a room provided for them, and there, in secret, examine all matters laid before them. If they think sufficient grounds exist for bringing a party to trial for a charge brought against him, the foreman indorses on the bill which contains the charges preferred, the words, "A true bill," and then he signs it as foreman. No bill can be found as a true bill unless at least twelve out of the fifteen agree so to find it. This true bill is called the indictment. All the witnesses that are called before the grand jury are those on behalf of the State. No witness on behalf of the party charged with the crime is called before the grand jury. They all appear before the petit jury. Certainly the law has done all it can do to encourage the good citizens to report all the wrongful acts they may have knowledge of, and not be afraid of being known to be the informers. If the citizens will do their duty, there will be no ground to complain of criminals not being brought to justice. It is the people of the county, and especially of the locality where the act is done, that are to be censured, and not the grand jurors, if any wrong-doer is permitted to go at large and not be indicted for his crimes. 332 ELEMENTS OF LA W. Petit Jurors. We shall only speak of petit jurors in connection with criminal trials, as it is at this point they are the most fiercely attacked by the enemies of the jury system. The twelve petit jurors, spoken of in connection with the drawing of the names of the grand jurors, serve in civil cases only, and do not serve on criminal cases. To get a petit jury for a criminal case the clerk draws thirty- six ballots from the box, the names found thereon are the names of those whom the Sheriff must summon, at least fifteen days before the day set for the trial. These names are put on a list in the order in which they are drawn. Out of these thirty-six the prisoner can reject twenty-three peremptorily. Then the prosecuting attorney may peremp- torily challenge two out of the remaining number. Besides the peremptory challenge, each party, the prisoner and the prosecuting attorney, can challenge for cause. If they challenge so many that twelve are not left, then the number will be made up of the bystanders having the qualifications of a juror. When the jury has been agreed upon, the following oath is administered to them : ' ' You shall well and truly try, and true deliverance make, between the State of Ohio and the prisoner at the bar (giving his name) ; so help you God. " In place of the words, "so help you God," if any juror refuses to take an oath, he will be permitted to affirm in these words : ' ' This you do as you shall answer under the pains and penalties of perjury." After hearing all the evidence in the case, for and against the person, the jury retire to make up their verdict. The law requires them all to agree before they can bring in a verdict of conviction. They are kept together till they agree upon a verdict or are dismissed by the Court. In the meantime they are not permitted to communicate with anyone. THE JUR Y SYSTEM. 333 Such, in a few words, is the workings of that system of remedial justice that has had bestowed upon it the highest praise that the strongest terms and boldest figures of the English tongue can express. Its enemies do not declare that it is evil in itself, but that the day of its need and usefulness has passed by, and that, therefore, it ought now to be abolished. There is one point I desire to impress on the mind of the student, namely: to distinguish between the system and the means made use of in applying the system. A good system may be poorly applied. Another point of great moment is, hundreds of the citizens of Ohio, annually, spend several days in the jury- box, and gather much information as to what is the law on various subjects of practical importance to themselves and to their neighbors. The jury system is the great common law schoolmaster, and he has most thoroughly done his work. Do we want him dismissed now, and a new and untried master employed to take his place? Would it not be better to say, that in all civil cases the verdict ought to be given on the agreement of nine out of the twelve jurors? And in criminal cases, that it ought to require the agreement of eleven, and not more, to convict, thereby doing away with the power of one man to hang the jury? If two of the jurors are in doubt, the prisoner has reasonable doubt in his favor and deserves the benefit of it. Is it putting the case too strongly to say: It is only those who have a bad cause, or have lost confidence in mankind, that fear the jury system? We now introduce to the student the name of Hon. Chas. S. May, and recommend to his diligent study the following extract, taken from Mr. May's article in favor of the jury system, which we have been permitted to print in this work through the kindness of Mr. J. W. Donovan, of Detroit, Michigan, the author of " Modern Jury Trial," a v&ry valuable work, and full of interesting information. 22 334 ELEMEN TS OF LA W. Origin and History of Trial by Jury. The trial by jury is Anglo-Saxon in its origin ; a part of Anglo- Saxon jurisprudence. Greece did not know it, nor Rome. The Grecian dicasis, the Roman judices, the Saxon com- purgators — these may have suggested and helped to form it, but each essentially differed from it as we know it to-day. For the institution in its present form we go back in English history to the reign of Henry II., that same sagacious, far-seeing and intrepid monarch who waged such stout and unyielding battle with his powerful and ungrateful subject, Thomas a Becket, for the supremacy of the civil over the ecclesiastical power. In the long line of English sovereigns, none has done a greater service to his countrymen and his race than this statesman king, who put the Church below the State and incorporated into English jurisprudence the trial by jury in the place of the senseless and barbarous trials by duel and by wager of battle. Since the Grand Assize of ii 76, a period of almost seven hundred years, trial by jury has been one of the sacred monuments of EngUsh liberty. While it was yet in its infancy the sturdy barons at Runnymede took care to make it a part of the Great Charter which they wrung from the faithless and treacherous John, the undutiful and degenerate son of its immoral founder. And since Magna Charta, in every struggle of the British people against the encroachments of the crown, in every popular upheaval or revolution, in every advance towards a larger and broader liberty, the recognition and maintenance of this institu- tion has ever been stoutly insisted upon, so that to-day it would be easier to uproot the foundation of the British throne itself than to tear this venerated landmark from the British Constitution or the affections of the British people. The revolution which dissolved our political allegiance to the British crown did not deprive us of our inheritance to English liberty, and so trial by jury descended to us on THE JUR Y SYSTEM. 335 the broad stream of the common law. We share it now with every English speaking people. It is not only held in traditional, popular reverence, but it is solemnly incor- porated as an inviolable right into the constitution of the United States, as well as the constitution of most of the States of the Union. What it is- Its Mission, to Find the Facts. What, then, is this trial by jury which is thus highly prized and sacredly preserved by the foremost race and the two leading nations of the world? It is an answer to this question, in general and popular terms, to say that it is an institution of English and American jurisprudence designed to assist in arriving at the truth in private dis- putes in relation to property and personal rights, and in cases between the State and the individual for the violation of public law. But it can only approximate to this end. Every form of trial known to the law is but an approxima- tion to, a struggle and endeavor after, the truth and justice of the case. Only with God and in the realm of exact science, worked through fixed laws, can absolute and cer- tain truth be reached. For the rest, and in all the vast domain of moral and legal truth we .must feel after and attain to that which is true and just by such aids and lights as God has given us in the reason and conscience of men. In our administration of justice it is the province of a jury, a trial jury, of which I am speaking, to find the facts. This is a clear and single process, and measures their duty and responsibility. But, every case, of course, involves more than the facts. The law of the case is involved also, that which gives to the facts all their signifi- cance and consequence as a basis for the claim of plaintiff or defendant. The questions of law may be many or few, but for these the jury have no responsibility. They are to take the law as given by the court, nor are they to ask any questions as to its abstract moral justice, but simply 336 ELEMENTS OF LAVi . to find their verdict under it. So it will be seen that the work of a jury, though of controlling importance in a trial, is not the whole of a trial, but rather an incident of it. The entire work to be done, the full problem to be solved, is one of a dual nature, of mingled law and fact, and a trial by jury in a court of law is a carefully adjusted piece of judicial mechanism, wheel within wheel, the most perfect and the most complete which human wisdom can devise. The Jury System Defended. Jury better than Judge even in civil causes. Does it need that I should defend at this late day, an institution thus venerable in years and hallowed by popular affection? Certainly it would seem that I ought not to be called upon to do this, and I shall not, at any great length ; but I do not forget that the men of this generation, wiser as they unquestion- ably are in many things than their fathers before them, have begun to question institutions which have stood for ages, and that the jury system has not escaped attack. To some restless innovators the mere fact that it is old is an argument against it. But every considerate and thoughtful man will, I think, hesitate before condemning an institution which has been in continued daily operation for more than twenty generations of men; which has become intertwined with the history and traditions of his country and his race, and whose germs are found away back in the earliest civilizations. Progress, reform, judicial reform — these are good and admirable things, but we should take care to know what we do in their name. John Randolph once said, in Congress, that "change is not reform," and adding to his words, I may say, with still greater truth, that destruction is not reform. To abolish the trial by jury, to sweep out of use and out of existence with one blow the jury system, would be a terribly destructive and radical measure, a direct impeachment of the wisdom of the past, and a bold and hazardous experi- ment upon the future. THE JUR Y SYSTEM. 337 Happily, there is no great danger that this will ever be done. For the jury system finds it;s justification in the facts of human nature, which is essentially the same in all ages; in its practical utility and convenience, and in its close and inseparable relations to civil liberty. I say, in its practical utility, and here I touch what is regarded as the chief and strongest point made against it. Many who would retain it in criminal cases and for its possible service in some great public crisis, nevertheless oppose it in civil causes and in the common every day business of the courts. While agreeing with them fully in the reservations which they make in the greater things, I also believe that it is good and useful in the smaller things as well; in civil as well as criminal cases, in ordinary as well as extraordinary times. First, I believe that a jury is always the best and fittest tribunal to find the facts in a case. I hold this to be true in the very nature of things. I know the argument that is used upon this point, and what is said about unlettered \\xx\&s, about difficult mental processes, and about the trained and disciplined mind of the judge. But here I believe is the better test. The fact to be found in a trial in the courts are generally the facts of common life. The deductions and conclusions to be drawn from these facts in nine cases out of ten are the deductions and conclusions of ordinary human experience. These do not so much require learning and logic as practical common sense, knowledge of human nature as seen in men and not in books, and intuitive perception of right and wrong — qualities oftener found com- bined, I think, in the jury box than upon the bench. It will not do to say, that because the judge is generally the superior in natural endowments of the average juror and ordinarily is his better in mental training and acquire- ment, that, therefore, he will the more surely and certainly draw from a mass of tangled facts the right and justice of the case. For facts cannot be dealt with like principles of 338 ELEMENTS OF LAU . arbitrary scientific rules, and right and justice are not always to be arrived at like mathematical results. Often the very learning and discipline of the judge may have unfitted him for this work by educating him away from the people. And it should not be forgotten in this connection that usually the facts in the case are narrated by living wit- nesses in court, whose look and manner and the probabil- ity of whose story should be scanned and weighed by men practiced in the ways of human nature, and not easily to be imposed upon. But grant, if you please, that there are no advantages in these respects with the jury on the grounds which I have claimed ; is there nothing still in the fact that the verdict of a jury is the aggregate wisdom of twelve men, while the finding of a judge is but the wisdom of one man? Do the scriptures say untruly, then, and is there no safety in a multitude of counsel? The Chief Importance and Glory of Trial by Jnry. But it is in another and greater field that the trial by jury becomes a matter of supreme concern to the citizens, and rises to the dignity of one of the chief props and bulwarks of civil liberty. Here its use can not be well questioned. Here, certainly, it needs no defense. The leaning of the law, in criminal cases, should be to the side of protection and humanity. And so it is declared to be. The State is great and powerful, and overshadows the indi- vidual ; and though it be necessary for its good that crime be prevented and punished, yet the State is not greatly harmed by the escape of a guilty man. But the conviction and punishment by death or lingering imprisonment of an inno- cent man, is a thing unspeakably shocking. No care can be too great to prevent such a tragedy. "Better," then, says the humane maxim, "that ninety-nine guilty men should escape rather than one innocent man should suffer." And all our human hearts and sympathies respond amen to this. THE JURY SYSTEM. 339 So the law of England and America — the common law — has built up for ages its impregnable wall of protection around the citizen. It has covered the accused with the shield of all its presumptions in favor of innocence, and tenderly, humanely given him the benefit of every reason- able doubt. And to make sure that he shall have no injustice done him, it has given him the sacred right of a trial byajuryofhis peers, where only a unanimous ver- dict of twelve men shall take from him his good name, his liberty or his life. Not to any single man, however honest or wise, however trained or learned, will the law give over such supreme and terrible functions. Is not this wise as well as humane? Would it be well to change this rule and put such tremendous issues into the hand of a single judge and make him pass upon the law and the fact also, of guilt? I think nobody will thus contend: Whatever may be thought about the wisdom or policy of jury trials in ordinary civil disputes, every lawyer and every right thinking man will wish the jury system retained in criminal causes. And there is another reason, still, even graver and deeper than any I have yet named, why the trial by jury should never be abandoned. Not alone is it a protection and a shield to the individual citizen, but it is also a chief pillar of support to that great civil fabric in which are bound up the rights and liberty of every citizen of this country and of England. The right of a trial by jury, a great popular right, a right belonging to the whole people, is needed in the State to guard against tyranny and oppression by the Government. In the Mother Country this right, expressly named in Magna Charta of a trial by a jury of his peers, has been to many a noble English patriot the open door of escape from the bloodthirsty minions of a tyrannical king. Here we have no favorite classes; we are all peers, each of the other, but we all belong to the people, and a jury is pre-eminently a tribunal of the people. Thus, as 340 ELEMENTS OF LAW. a fortress and citadel of liberty, in which the citizen may- take refuge in calamitous times of public commotion or danger, when the safeways of the State are broken up and the hand of power is outstretched to bloody and violent deeds of oppression, the trial by jury is worth all that it cost in the long struggle in English history to secure and maintain it. And this great reason of State must, therefore, be added to all the other solid and weighty considerations which uphold the jury system. Tlie Part of tlie Jury — Want of Responsibility in Jurors. I shall say but a word of the part the jury plays in the trial, and that only in regard to the character and duty of its individual meinbers. I have already spoken of it in its collective form and as an institution of the law. The theory of the trial by jury is — and this is held to be its chief excellence by one of its ablest eulogists — that the jury is a tribunal suddenly called from the body of the people to try the facts of the case, and that, after dis- charging that duty, it as suddenly dissolves and returns to the people again. It is a tribunal, therefore, which oifers little time or opportunity for tampering or corruption before it begins its work, and when that work is done it disappears so suddenly and completely that nobody can hold it to account. I know it is the policy of the law to protect the jury from any civil or criminal responsibility for its verdict; and this exemption from account has given it a freedom and independence most necessary to its highest usefulness. This, indeed, is a great merit in the jury system, but it gives rise, at the same time, to one serious, practical defect, which every lawyer has had occasion to notice: I refer to the want of individual responsibility in juries. It is easy to see how this comes. Each juror is put into the box, ignorant of the case which he is to try, and this very ignorance the law encourages, as a test of his impartiality. He looks about him and sees eleven other men, each one as ignorant of the case as himself, and each with a responsi- THE JUR y SYSTEM. 341 bility as great as his own . He has nothing to do but listen; he is not called on to say anything ; he is charged to refrain from declaring his impressions to his fellows, even; and when all is done, and the case is submitted, he casts a silent, unrecognized ballot with the rest. Even should discussion arise in the jury room, and he be called on there to express his opinion, the law will seal the lips of all who hear him, so that what he says and how he votes may never be known to the outside world. Under these circumstances it is natural that an indolent or timid juror should fail to give the case an earnest, thoughtful and con- scientioos attention ; that he should sink his individuality in the mass, and hide his own responsibility behind the eleven. It is for this reason that the law and public duty alike require of every individual juror the full and inde- pendent exercise of his own judgment and conscience in every case. I think it would be well if this duty could be emphasized from the bench. The verdict of a jury should stand for the aggregate judgment, intelligence and conscience of twelve men. Of course, under our system and with the exceptions allowed, it can not represent the highest intelligence. But with some exceptions, chiefly in the large cities, and growing out of improper and corrupt selections by ignorant or dishonest officers, our American juries are supposed to represent, and do gen- erally, I think, represent the average intelligence of our great middle class. Every man who submits his case to a jury has a right to such a verdict as I have described. That he does not always get such a verdict we know, and fre- quently have occasion to lament. It is because our jurors do not feel their personal responsibility and do their personal duty in the case where they sit, but evade this duty and responsibility in the mass, each hiding behind the other eleven. It is for this reason that I confess to having always had a measure of sympathy for that much abused and denounced individual, the disagreeing ot minority juror. 342 ELEMENTS OF LA W. I can not always bring myself to join in the chorus of denunciation which is set up over this poor Ishmaelite of the courts. Why should he always be thus assailed? Does it necessarily follow that the other eleven are right and he is in the wrong? Besides, is there no question of conscience here? It may be a case involving directly a great question of right and wrong; one whose decision is to be followed with consequences which do not simply take away money or property, but blast character, deprive of liberty, or take human life. On such a ques- tion is he to follow other men's judgments and take other men's consciences ? He has taken a solemn oath for himself to find a true verdict; what shall we do with that? If he thinks the crime not proved, shall he consent to send an innocent man to the dungeon or scaffold on other men' s judg- ments and oaths ? Here is a difficulty which all must see. I know it is frequently aggravating, in small cases', on the civil side, and especially on questions of mere damages, to have verdicts prevented, and parties and the public put to expense for the mere obstinacy of a single juror. But while this is, who shall say that in the larger and graver cases which I have supposed, it is not the juror's duty to stand firmly to what he thinks is right, notwithstanding his fellows are of another opinion? Must he not justify himself to his own conscience? Can we denounce him in such a case, and join in acclamations over men, who in science, in government and religion, have stood out stub- bornly to the end against greater odds — not one to eleven, but one to eleven hundred or eleven thousand and more — and who have been exalted to the very heights of honor and fame, and pronounced immortal heroes for the act? Let us not be unjust or inconsistent. The disagree- ing juror, by the very fact of his disagreement, shows that he has a-mind of his own, and that is a great deal. Com- mend to me always a man who has a mind of his own and THE JUR Y SYS TEM. 343 thinks for himself. It is better to think wrong sometimes than not to think at all. In this world of unthinking agreement and conformity, where so many men seem to have no mind of their own, and only wait to see what others think, I can not help admiring the sturdy Anglo- Saxon independence of the one juror, who stands out against all the rest. It is really refreshing once in a while, to find a man who will sit up all night, without meat or drink, for his opinion — and keep eleven other men up with him. There is no sanctity about the verdict of a jury. It may be wrong an,d false like the greater verdicts of a sect, a party or a nation. Who does not know that whole nations and peoples have sometimes, yes, frequently, been in the wrong, and rendered false verdicts, and cruel verdicts, which have been set a^ide in the great court of history? The brave minority, which opposed those ver- dicts, even unto death, have earned the gratitude and received the plaudits of mankind. Improvements and Modifications Needed. But with all its faults of advocacy, and with the many impediments to its fair and just working, the jury system is the best that can be devised, and should be retained. The fine balance of its several parts, necessary to its complete and harmonious movement, is frequently disturbed in prac- tice, and it sometimes seems to fail of its true ends. Like all human institutions it is not perfect. It may, undoubt- edly, be improved, and I think it ought to be improved in some important respects. In the first place I think it should be improved by changing, in civil cases, the rule requiring unanimity. The frequent disagreement of juries is one of the just com- plaints against the system, and these are the necessary fruits of this rule. I can not here go into a discussion of this question, which has already received the attention of law-writers and law-reformers, but it has always seemed to me that the weight of reason and argument was on the 344 ELEMENTS OF LAW. side of a modification of the old rule. The question should be looked at in its practical bearings. Whatever the origin of the rule, whether it came from the number of the Saxon compurgators, or from an old requirement of the agreement of twelve, when the whole number was greater, or from the wish of the law to protect each individual member of a jury from responsibility by requiring unan- imity before giving any effect to their action, it should give way to a better administration of justice. I believe this modification is required and demanded by strong practical reasons and considerations, which are felt every day in the courts. Certainly the requirement of unanimity is somewhat inconsistent with the general rule which prevails in a republican form of government, where the gravest public questions are settled by a bare majority. It would seem, on principle, that if a question which vitally affects the welfare and happiness of a whole people may be settled by the preponderance of a single vote in millions, that a little petty matter of private dispute, ought to be settled by the two-thirds vote of a jury for one or the other. And no man can doubt that this would directly facilitate the disposition of causes in the courts. I would not hesitate then, to make the reform. It is not sufficient reason to me for retaining a bad rule to say that it has prevailed for many hundred years. Because it is old does not necessarily show that it is right. But while I would make this change in civil cases, and permit a two- thirds vote to carry a verdict, I would not disturb the rule in criminal cases, for there the accused ought to have the benefit of the rule as it stands. The humanity of the law and the reason for greater caution and certainty all require that he should only be found guilty on the unanimous judgment of the whole twelve. One further improvement in the jury system is needed to bring it into complete accord with the spirit and progress of our age. I refer to a modification of the old THE JUR Y SYSTEM. 345 rule of challenge, so as to meet a difficulty which is frequently found in securing an intelligent jury in cases of great public interest or notoriety. The want of proper readjustment, of the rule excluding jurors on the ground of opinion, to the actual condition of our newspaper-read- ing people has, of late, in many quarters become a real scandal upon the law and a great hindrance to its just administration. A general reform is needed in this respect throughout the country. Conclusion. Thus all too briefly and imperfectly have I sketched this great institution of the trial by jury, and, as I turn away from the theme I deeply realize how much is left unsaid. The greatness of the subject has em- barrassed and oppressed me. In considering it, our minds run back through many stormy scenes of English history, through many great political changes and revolutions, to the early and memorable days when the foundations of consti- tutional freedom were laid in England by the first succes- sors of the conqueror. Then and there was begun to be builded the grand and majestic edifice of the common law, and into its solid masonry was wrought the trial by jury. There let it remain so long as the magnificent structure shall stand. It has been a glory and a boon to England ; it is and will be a glory and a boon to us. No man can safely predict what our national future will be. The events of our recent history have disturbed that easy and boasted confidence in our in- stitutions and our future that once prevailed. I invoke no spectres to rise in our national pathway. I cast no horo- scope of coming ills, but whatever the future, whether cloudless and serene or stormy and tempe-stuous, it will be well to hold onto the trial by jury. We may never have tyrants, we may never have Ccesars, but if we should have them they will seek to accomplish the downfall of free gov- ernment, not by directly overriding the constitution, but by using the forms of law to strangle and subvert its spirit. 346 ELEMENTS OF LAW. No central despotism, no rule of moneyed or political monopolies can successfully control for tyrannical or sordid purposes an institution which derives its life and power from the great, honest masses of the people. And here will be our safety. For the jury system is the handmaid of freedom. It catches and takes on the spirit of liberty, and grows and expands with the progress of constitutional government. In England, in the seventeenth century, under the tyranny of the Stuarts, a jury at the instance olz. cowardly and despotic king, sent the noble Russel and the brave Sidney to the block for constructive treason. A hundred years later, an Englishjuryac^wzVfe^ Lord Gordon, and Hardy, and Home Took and Thelwell, on the same charge, although pressed by the whole power of king and government; and a little later still, not all the influence of the ministry, though aided by the savage energy of a chief justice of England, could wring from an honest and fearless English jury, an unjust verdict against a poor and humble private citizen, who, all unaided by counsel, conducted his own defense. No ; civil liberty can not dispense with any of her arma- ments. She needs them all to battle with tyranny and oppression. Trial by jury is one of the chiefest of these. The noble panegyric which Blackstone pronounced upon it in his immortal commentaries is well deserved, and if it be true, as he suggests, that possibly Rome, Sparta and Carthage fell because they did not know it, let not England and America fall because they threw it away. A GLANCE AT THE JURY SYSTEM. The student is now asked to lay aside all feeling and prejudice that he may have in favor of the jury system and take a calm and dispassionate survey of the arguments against the system. The author has the personal permis- THE JUR Y S YSTEM. 347 sionofD. Appleton & Co., the owners of the copyright, to print the following article written by Mr. C. H. Stephens, of Montreal, Canada. It first appeared in the Popular Science Monthly, one of the leading magazines of the day. The arguments of Mr. Stephens are worthy of the most careful and diligent consideration by the student. They are as follows: '• Our little systems have their day; They have their day and cease to be." There is no one, I fancy, who is in the habit of reading the newspapers, or of witnessing the conduct of jury trials, but has often had occasion to laugh at the vagaries of juries and their curious verdicts. A volume might be filled with them which would rival in interest Dean Ramsay's " Rem- iniscences," or Joe Miller's " Jokes." " It seems a daring and presumptuous thing," says a learned writer, "to attack as useless an institution on which writers, both lay and legal, have bestowed so much eulogy." And not only does it seem daring and presumptuous, but one can hardly in imagination conceive a time when the jury, with all its record of. past services, all its glorious battles for liberty, and all its memories of great pleaders, shall have passed away; when the jury-box, with its "twelve men all arow," shall have disappeared; and when the challenge to the array, and the challenge to the poll, the pathetic addresses of counsel, and the judge's charge, shall be heard of no more forever. Nevertheless, when we see every month or two, fifty, sixty, or seventy men drafted from the indus- trial classes to supply what is called a "petty jury," and a couple of dozen more from, perhaps, a somewhat higher class, to form what is called a "grand jury; " when we see the farmer leave his plow, the builder his building, the shop-keeper his counter, and come together from places many miles apart ; when we see them day after day idling about the courts and taverns; when we see them in the jury-box, listening lazily to the proceedings before them ; 348 ELEMENTS OF LA W. when we hear them delivering verdicts to which the judg- ments of Sancho Panza were, in comparison, as the judg- ments of Solomon; and when we learn that for all this the country pays their traveling expenses, their hotel bills, and so much per diem for their services — we can not but believe that the day is not far distant when the jury system, with all its glories and eccentricities, will be a thing of the past. It is rude, clumsy, and out of harmony with the progress of the world. It smacks of a former age and a cruder civilization. It reminds one of the clod of earth, and the lictor's rod; the trial by ordeal, and benefit of clergy. It belongs to these, and not to the age in which we live. With these it arose, and to these it will in time be gathered. The question is, has not that time arrived now? Is not the world capable of a more perfect system to-day; and if so, what? No system that can be suggested as superior to the jury can be positively shown in advance to be so. There are so many factors of uncertain quantity which enter into the calculation, that nothing Hke a perfect estimate of the respective merits of any two systems is possible. By what rule of mathematics can we arrive at the respective wisdom and sagacity of a jury of twelve men as compared with a bench of one, two or three judges, or their respective honesty, impartiality, and so on? But more, perhaps, in the way of exact calculation is possible than has yet been accomplished. Something is possible, at least, by way of an exact estimate of the relative expense of any two systems . That is one item. Then something may be done, though not much, by way of a comparison of a result of a certain term or terms of court in a certain district, where the jury system prevails, with those of a corresponding term or terms in a district where a judge alone decides the question at issue. In the items of expense must be reckoned the loss to the country by reason of so many persons being taken from THE JUR Y S YSTEM. 349 their natural employments, the temptations into which they are thrown, and the demoralizing influences to which they are subject. But these calculations pertain more to a commission of inquiry, and I do not propose to enter into them. Neither do I propose to enter, even theoretically, into the great question whether society would not be the gainer in point of morality by an administration of the criminal laws in which a jury would have no part, but merely, by way of introduction to these questions, take a brief glance at what the jury system really is. It ivill be admitted, / think, that the jury of real life does not correspond to its ideal. There seems to be a vague, indefinable something about it which is ever whis- pering in the ear of Civilization, " Hold fast by me, or you are lost!" But examine the phantom, and it disap- pears. Whatever of reality it may once have had has passed away. The language of the old encomiasts would now seem foolish and extravagant. "The jury system," says one writer, " considered as a means of deciding con- testation between individuals and of ascertaining the guilt or innocence of accused persons is, in England, the basis of public liberty, the bulwark of the people against oppression, the legal guarantee of life, of honor, and of the property of the citizens. A jury is the buckler of innocence against unjust accusations, and the sworn arbiter of those who have recourse to the tribunals in order to obtain justice. Under this institution the laws may be the means of protection or of destruction, of hope or of misery, according to the spirit, the firmness and the integrity of the jurors. " This is the language of a writer at the beginning of the present century. They are his opening words — the overture, so to speak, of his work. But the qualification he has seen fit to append to it seems, logically, to bring the wordy structure to the ground. 23 350 ELEMENTS OF LAW. How the jury can be " the basis of public liberty, the bulwark of the oppressed, the buckler of innocence," and so on, and yet depend for all these upon the character of the men who compose it, one can hardly imagine. If the jurymen were all wise, honest and true — if, in short, they were perfect — we would, undoubtedly, have perfect ver- dicts. But if all judges were perfect the same result would be arrived at in a much simpler way. We can only look for perfect judges and perfect juries when all mankind are perfect; and when all mankind are perfect there will be no need of either. And though the jury may have been once all that is thus ascribed to it, how can it be so now.? In what manner can it be said to be the basis of public liberty at the present day, and how are the oppressed ? The ideal juryman is not supposed to be more perfect than the ordinary run of mankind; but he is supposed to enter the jury-box free from all prejudices or predilections concerning the matter to be decided. He is supposed to be chosen according to a system which insures the highest degree of impartiality — a system which, in large communi- ties at least, makes the selection of each juror a matter of pure chance. But in such communities there is a large amount of business to be disposed of, and a large number of persons, called a panel, is required, from which each particular jury is taken. This furnishes a considerable quantity of material — of raw material, it may be called — from which the actual twelve are to be selected. ' These persons are drawn from a class of society the most plastic, the most subject to prejudices and animosities; and it is a well recognized part of the business of counsel to secure from among them those who may have leanings toward their clients. Their success or otherwise in this particular is, in all cases of importance, made the subject of the closest calcu- lation, And a counsel is not considered to have shown THE JUR Y SYSTEM. 351 any marked aptitude if he has not upon the jury one or more upon whose sympathies he can count. The many interests of a national, religious or friendly character which pervade all society aid in this. T/ie sympathies of co-religion, copatriotism or confraternity are all instruments with which the skillful counsel either openly or secretly works. Tlie ideal jury is nnanixaous. The unanimity of the real jury is, in the great majority of cases of any importance, a mere name. That they are required to be unanimous has been admitted from time immemorial to be a perfect in the system. The absurdity of compelling m^n to be unanimous must be apparent to the crudest intellects. In olden times, in England, when the judges "went cir- cuit," they used to carry the jury around with them in carts until they agreed. In our time we have not much advanced beyond this. We lock them up, with barely the necessaries of life, until they are unanimous. The value of a verdict obtained under such conditions is not very evident: In an old case eight of the jury agreed to find "not guilty," and the other four "would find it murder." The next morning two of the four agreed with the eight. At last the rest came to this agreement, viz., that they would offer " not guilty," and if the court dis- liked it, then they would change the verdict and find it "guilty!" The foreman pronounced "not guilty," but the Court, " not liking it," examined every one of them by the poll, whether that was their verdict, and ten of them affirmed it, but the last two discovered the whole matter; where- upon they went back and then brought in ' ' guilty." The ten were all fined in considerable amounts for their conduct. It is not wonderful that, recognizing, as they must do, the ineffectual nature of their proceedings, jurymen have resorted to the very simple and suggestive expedient of casting lots for their verdict. Several instances are recorded 352 ELEMENTS Of LAW. in the books of juries casting lots for it, and in a recent murder trial in England it was discovered that the jury had balloted for their decision. To a candid and inde- pendent observer the whole effect of a jury-trial must appear about equivalent to drawing lots. Its value as a means of discovering truth, can be little, if any, beyond this. Anyone who will reflect on the matter for a moment will, I think, be convinced that the proportion of correct verdicts can not be much, if any, more than fifty in a hundred, which is, of course, the average in every question of pure chance. Almost every jury-trial is as though the parties acting in it went through a mock solemnity of greater or less duration according to the importance of the case, at the conclusion of which the judge said to the jury: ' ' We have exhibited to you the spectacle of a trial ; you will retire now, and cast dice as to what your verdict will be." And if this be true, a system which would dispense with the jury, and in which the Court itself would throw the dice, should be quite as satisfactory. It is certain that under such a system the very highest degree of impartiality would be reached, while there would be a vast saving in time and expense. This is in cases where the decision is actually left in the hands of the jury. But, and this is another difference between the real and the ideal of the jury system, we have in a large number of cases the more extraordinary spectacle of a jury solemnly sitting through a trial for the purpose of listening to the evidence and forming their own opinion as to tJie guilt or innocence of the accused, and then being instructed by the Court as to the verdict they shall find. It is, as every one knows, the most common of occurrences for the judge to lecture the jury upon their verdict and to refuse to receive it. That the judge should be more correct than the jury is not impossible, but then, wherefore the jury? In an English case in which the jury had brought in "guilty," Mr. Justice Maule addressed the prisoner as THE JUR Y SYSTEM. 353 follows: "Prisoner at the bar, yo.ur counsel thinks you innocent; the counsel for the prosecution thinks you innocent; I think you innocent. But a jury of your own countrymen, in the exercise of such common sense as they possess, and it does not seem to be much, have found you guilty, and it remains that I should pass upon you the sentence of the law. That sentence is, that you be kept in imprisonment for one day, and, as that day was yesterday, you may now go about your business." In a case the other day in San Francisco the judge made similar comments, though to the jury themselves. The real value of these two anecdotes is ordinarily overlooked. It is something beyond merely raising a laugh at the expense of the jury. The laugh is not necessarily at the expense of the jury at all. It is rather at a system which takes up the time of twelve men in hearing a case and rendering a verdict, and then takes it for granted that the one man who sits on the bench knows more about it than the whole twelve. If the "unanimous" verdict of the twelve is not equal in wisdom to that of the judge who lectures them, it is clear that they may be dispensed with, without any great loss to society- And, if unlike its ideal, still less is the jury of to-day like its original. A glance at the history of the jury system will show this. The original notion of a jury was not as a protection to anybody. It was not established as a bulwark of popular liberty. The jurymen were witnesses rather than judges of the matter in issue. The modern jury grew by a process of slow and gradual development out of customs which were part of the life of the Anglo- Saxons and other early inhabitants of Great Britain. These customs were perfectly characteristic of a rude, unlettered people. They were perfectly natural. They were based on no recognized legal principle. They had no set purpose in view beyond the purpose of the hour. They were almost utterly devoid of judicial forms. There 354 ELEMENTS OF LAW-. was no such thing known as a writ. For the hearing of a complaint, a messenger was sent personally to summon the people of the hundred in which the dispute arose or the crime was committed. They were to be of the vicinage or neighborhood of the parties. It was necessary that they should know something of the matters in dispute, or the persons accused. They were to decide of their own knowledge. Witnesses in the modern sense were unknown. The parties stated their grievance in the presence of this rude assemblage, which by a species of acclamation, or preponderance of lung-power, which often terminated in an appeal to brute force, determined the question in issue. Among the northern tribes something more nearly approaching to a court and jury is said to have existed, but among the Anglo-Saxons judicial forms were of the rudest possible description. By a law of Ethelred, twelve men, with the Sheriff, were to go out and discover all who had committed offenses and accuse them. Later grew the practice, introduced by the clergy from the canon law, of swearing the witnesses, (as the jury were termed), and of requiring sworn evidence in all cases, both civil and criminal. And by the laws of Edgar it was provided that in every hundred there should be twelve sworn men to be appointed as witnesses, some of whom were to witness every transaction, that they might be afterward called to decide concerning it. The refinements of the ecclesiastical law, and the clergy, who could read and write, did much to soften the asperities and barbarities of the customs which were in process of the time molded into the common law of the country. The modern jury is no more than the tumultuous assembly of the Anglo-Saxons molded into judicial form by the introduction of sworn evidence, by the separation of the grand and petty juries, and by the establishment of the number twelve, a number common for many purposes THE JUR V SYSTEM. 365 among the northern tribes of Europe. In its early stages it had no reference to a dread of monarchial aggression. Witness the fact that Alfred caused forty-four justices to be hanged in one year for delivering false judgments and sentences contrary to the verdict of the jury. From this time the jurisprudence of England rapidly improved. Under the Normans who succeeded, the jury system showed marked signs of development. In the reign of William II (1087 to 1 100 A. D.) occurred the first instance of twelve sworn to render a verdict in anything like the modern sense. That was in a cause between the Bishop of Rochester and the Sheriff. The jurors, awed by the influence of the Sheriff, decided in his favor, which the Bishop suspecting, he commanded them to choose twelve men who should confirm it on oath. In this we see the first rudiments of the petty jury. Another cause which led to the differentiation of the petit jury from the general body of jurors (or witnesses) was what is known in English law as the presentment of Englishry. By a law. of the Norman kings, the people of the hundred in which a murder was committed were bound to discover the murderer or pay a fine, unless they proved that the person murdered was English. As this last was a task usually attended with great difficulty, it became the practice of the people of the hundred to discover the criminal, and, when found, to accuse him of the crime ; but as these accusers, when they had apprehended the accused, were found liable to be prejudiced against him, the custom grew of choosing twelve, who might be taken, not only from the hundred, but from the whole body of the county, whose functions were to decide as to the guilt or innocence of the accused. Under the first Henry the jurors, though still witnesses, and deciding exclusively from their own knowledge, began to be called judges, a fact which seems to indicate that the office of deciding began to be recognized as the principal part of their duty. 356 ELEMENTS OF LA W. In the following reign, Henry II recognized the value of the jury system as a check upon the power and rapacity of the barons ; and, consequently, in the tenth year of his reign (1164 A. D.), was enacted the first legislation on record establishing the right of trial by jury. In the consti- tutions of Clarendon, passed in that year, it was provided that laymen should not be accused unless by certain legal accusers, the witnesses, and that if the offenders were such whom no one zvished or desired to accuse, that then twelve men should be sworn ' ' who should declare the truth according to their conscience." It is noted as a curious fact that the jury system, whose great value has always been as a means of checking the encroachments of the crown upon popular liberty, should thus have been first officially introduced to the world as a means of strengthening the crown in its endeavors to check the encroachment of others. And it may be noted as an equal curious fact that the importance of a jury, as thus first established, was in gaining convictions rather than in evading them. Jurors, however, were still witnesses, "deciding by what they had seen and heard." Indeed, it was not until the reign of Henry VI, (fifteenth century), that jurors were of sufficient intelligence to listen to and decide upon extraneous evidence; and not until the reign of Anne (eighteenth century) that it was enacted that the want of " hundredors" should not be a cause of challenge to the jury. From this brief recital it will be seen that the last stage in the development of the modern .jury was reached when, in the fifteenth century, the jurors began to listen to the evidence of others, and ceased to rely upon their own. The importance of the jury prior to this period has been very much overstated. The reference to it in Magna Charta does not warrant all the eloquence that has been expended upon it. The events which gave rise to Magna Charta, and the condition of the people of England at that THE JUR Y SYS TEM. 357 time, preclude the idea that the jury system owes its existence, or at any rate its place in Magna Charta, to the "freedom-loving instincts of the Anglo-Saxons." A proper conception of the jury itself, as it then existed, equally precludes the idea that it possessed the importance, even in the eyes of those who obtained the charter, which people in later times have been wont to attach to it. Among the phenomena of human life is this, that in all countries and ages certain ideas ot beliefs have been found so pleasing to the national vanity as to be regarded as the most fundamental of truths. They have descended from generation to generation as a sort of popular inheritance. They have formed part of the education of the youth and the entertainment of maturer age. They have been placed, so to speak, in the national Pantheon, and worshiped as at least ^a^ divine. No one ever thought of doubting them, because to do so would be a sacrilege ; to deny them, a crime. Instances of this will occur to everyone, and no more marked instance can be found than this, that we owe trial by jury to the wisdom, courage, and ferocity of the Anglo-Saxons of the reign of John. A reference to the circumstances of that period will make this evident. In consequence of their miserable condition, the hard- ships and exaction of the feudal system, and the cruelty and rapacity of those above them, the Anglo-Saxons, who constituted the lowest orders of the people at that time, were crying out for a return to the laws and customs of the Anglo-Saxon period. These customs included, as we have seen, a sort of trial by jury of the crudest and most rudimentary kind. But it was not for this they cried. This, such as it was, they had never lost. Under the Norman kings it was encouraged rather than suppressed, and in the reign of John had advanced far toward a regular judicial system. To this extent only can the reference to trial by jury in Magna Charta be ascribed to the Anglo- 358 ELEMENTS OF LA W. Saxons, viz. , that it was one of the customs of the English people descended from the Anglo-Saxon period, confirmed by many subsequent charters, and enrolled in the great charter as part of the national constitution. To understand this it is indispensable to remember what the great charter was, and how little in reality the lower orders had to do with it. The struggle out of which it arose was not with them at all. It was a contest between the king and the barons, who set at naught his authority, who hanged his officers, and who rebelled against his outrages and abuses. It was they, the greatest enemies of the Anglo-Saxons, whose interest was in framing the laws so that they might ravage the common people with impunity, and at the same time escape similar treatment on the part of the king, who compelled the latter to sign Magna Charta. And so clearly were their interests opposed to the system of trial by jury, that it has been confidently asserted that the famous jury clause was due to the king himself. It seems more reasonable, however, to ascribe it to the archbishop and the t/^r^y, by whom the document was undoubtedly drawn, and to whom its peculiar phraseology is undoubt- edly due. But what is more credible, and, if true, more important, is the assertion on high authority that the words judicium parium, or judgment of peers, which are supposed to embody the great central principle of trial by jury, do not refer to criminal matters at all, the decision in which was never termed judicium, but veridictum. So that the- most that can with safety be asserted of these two famous words is this, that out of them was evolved many a bitter struggle between law and force, and to play so important a part in the history of civilization. And indeed that is the Hght in which the whole of this great act is to be regarded. It is all of a piece with the judicium parium and habeas corpus clause, the assertion of the supremacy of law in all ranks and orders of society. Laws had existed before the time of John, but they were addi- THE JUR y SYSTEM. 359 tional instruments in the hands of the strong to oppress the weak. Under the Saxon Kings the laws were neither understood nor regarded. Every man was a law unto him- self, and the result was anarchy and barbarism. Under the Norman kings law was recognized and par- tially understood, but it was enforced against those least powerful to violate it. Each Norman king in turn granted and confirmed the laws to the people, but himself outraged every law, both human and divine. The feudal lords right nobly imitated their example; and so great grew their exactions that, like the Hebrews of old, the people cried aloud for a deliverer. The deliverer came in the person of a king more sensual, more vile, and more tyrannical than any who had preceded him ; a king who ground the face of the rich as well as of the poor ; who outraged the noble as well as the base-born ; who oppressed the strong as well as the weak. And the rich, and the noble, and the strong stood up ; the barons turned against the king, and the king against the barons, and out of the contest arose the supremacy of the law. Law became the sole arbiter of right and wrong among all classes, and force and violence and the savage instincts of man became subject thereto. For upward of five centuries the principles of Magna Charta have governed the Anglo-Saxon world, and among them the principle of trial by jury has held its place. The tyranny of absolute monarchy is gone, and the brutality of the barons has long since passed away, but the jury system remains. Since the days of William III (1689 to 1702, A. D.,) when the supremacy of the law was finally vindi- cated, and the judges were made independent of the crown, trial by jury has been little more than a. form; yet English- speaking people everywhere cling to it as a lately bereaved wife clings to the form of him who, through many long years, has been her shield and protector. In this age all men are peers and equals in the eyes of the law, yet a jury of twelve, with all its ancient crudi- 360 ELEMENTS OF LA W. ties, and all its modern anomalies, is still considered essen- tial to a fair and impartial trial. Time was when the jury were judges of the law as well as the fact. To-day they are in fact judges of neither. They are but the echo of the court, and their principal office is to relieve the court of th| responsibility of what is done. When a judge sentences a prisoner, he says, in effect: " Do not blame me, I pray you. You have been condemned by the unanimous verdict of twelve of your fellows. I am but the mouth-piece of the law to pass sentence according to their verdict." Of course this is not so. In a great pro- portion of cases the very reverse is the case. The jury are, in fact, but the mouth-piece of the judge, to render a verdict, the responsibility of which he wishes to be relieved of. Let us ask ourselves if there really is anything to be gained by the continuance of a system so full of incongru- ities. People are commencing to ask this question now. One authority says, " Apart from any incidental defects, it may be doubted whether, as an instrument for the inves- tigation of truth, the jury deserves all the encomiums that have been passed upon it." But the same writer goes on to point out that, while the jury might, with advantage be dispensed with in civil cases, " opinion in England is unan- imously against subjecting a man to serious punishment without the verdict of a jury, and the judges themselves, " he adds, " would be the first to deprecate so great a respon- sibility." But that public sentiment is in favor of the jury system, does not prove it to be the best, even in criminal cases. Mere sentiment is not an argument for the continuance of any system, ^n6. moral cowardice is not even an apology for one. Every system, every institution, however useful in the past, whatever may be its claims on the reverence or affection of mankind, must, sooner or later, be brought to the test of present and practical worth. In the Bank of England one is shown a very delicate and IS OUR LAW JUST TO THE POOR. 361 ingenious instrument for weighing coins. The coins pass up a tube, at the top of which they pause for a moment and are weighed. If good, they drop into a receiver on the one hand ; if bad, they infallibly go to the other. No human agency is visible, yet each in its turn which does not come up to the standard of this remorseless little instru- ment is cast aside and rejected. All the institutions of the past are coins for which the age has invented weighing- machines. Each must come up to the standard of value, of undoubted utility, or be cast aside. The jury system will be no exception to these. In several countries it is now only used in civil matters. Through the Aus- trian Empire it has been abolished entirely. Law everywhere is undergoing a process oi simplification. In English-speaking countries in particular, it has, during the last few years, been purged of many abuses, stripped of much that was useless, ^x^A in a few years more, trial by jury will also be swept away. CHAPTER XVII. is our law lust to the poor. By Dean Kent. [ It is admitted on all sides that, at the present time, the American people, as a Nation, are passing through a great social crises. What will be the outcome none can tell. That it will be for the good, and that the future will be the better for the struggle, we do not doubt, provided the proper persons are chosen to conduct the struggle. If the cause of Labor is to fall into the hands of the low and vicious "agitators" of our great cities, or, equally as dangerous, into the hands of demagogues, the result to the laboring men must be ruinous. 362 ELEMENTS OF LA W. The following article is from the pen of Professor Charles A. Kent, Dean of the Law Department of the University of Michigan. The Dean is known to hundreds of young men throughout this Nation as one of the most kind- hearted and amiable of men. The cause of the poor finds in him a true sympathizer and a friend, and it can suffer nothing, but gain everything, by taking heed to his words of advice. The author has the personal permission of his honored preceptor to publish his views in this work.] The unequal distribution of wealth, and the distressed condition of great numbers of the poor, have long been the burden of philanthropists. Religious men have some- times felt it difficult to reconcile this state of things with their belief, that all events are controlled by an All-wise Father. Statesmen see in it a perpetual threat of violent revolution. And the progress of civilization, which does so much to increase man's power over nature, and the consequent wealth of civilized communities, gives little ground to hope that the evil will soon cease. To some, it seems as though the tendency of progress in material wealth is to deepen the old gulf between the rich and the poor, that the rich grow richer and the poor poorer, with every victory of man over nature. Many feel that there must be something rotten in a State, where one man owns a hundred millions of money, and millions of persons live from hand to mouth, always verging on the extreme of poverty. Some denounce society as built on the grossest injustice and doomed to violent revolution, unless the injustice is removed. And the evil is not confined to the poor. The idle rich often suffer from their idleness, and the bad habits, which idleness engenders, more than the poorest suffer from their poverty. The children of the very rich sometimes labor under the most serious disadvant- ages. They feel no motive to that strenuous exertion of all their powers, alike necessary for happiness, and mental and moral growth. IS OUR LAW JUST TO THE POOR. 363 Constant employment and vigorous exertion often appear to the young a kind of slavery. Only experience teaches us how essential they are to the highest good. It is one of the blessings of poverty, that the necessities of life compel the poor to overcome that tendency to indolence which is so general with the young. The children of the rich, lacking these incentives, often fail in life, where they would have succeeded if born poor. It is only the rarer natures who will make the most of themselves when freed from all pecuniary want. The great inequalities between rich and poor exist as well under our democratic institutions as under monarchies of Europe. Everywhere laborers seem to be growing more and more impatient of their condition. No reverence for rank or wealth now restrains them from the freest inquiry into the causes which produce such great disparities in human condition. The great peril of modern civilized society is in the feeling of great masses of the poor, that justice is not done them, that they are under unnecessary bondage to capital, that they do not have their fair share of the fruits of nature. That this peril has not become as great in this country as in Europe arises from the fact that property, and espec- ially land, is in a far greater number of hands, and the great amount of public land offered for sale at nominal prices has given the poorest who are industrious the chance to obtain a competence. But the country is rapidly filling up. Great masses of laborers are accumulating at manu- facturing points. Many of them are foreigners, who have brought here the most advanced notions of the injustice labor is suffering from capital. The fact that here every man is either a voter or may become such after a brief residence, brings every question of labor speedily into politics. Laborers are already organized and making their influence felt in every election. Demagogues are always seeking to get votes by arraying the poor against the rich. 364 ELEMENTS OF LA W. Sincere enthusiasts for reform are striving to awaken the poor to a realization of their misfortune. It is boldly maintained, that the evil of poverty may be remedied by a change in our law. Under these circumstances, the question, whether the extremes of poverty and wealth are the result of human law or of natural causes, too deep for control by such law, is one of surpassing interest to all classes. The subject demands earnest, patient, candid inquiry from every lover of the pubhc good. If law can change that great disparity between rich and poor under which the race has suffered from the dawn of civilization, if it can deliver the poor from want and the rich from the perils of idleness and too great indulgence, the work should be speedily accomplished. But if not, if the causes which make some enormously rich and reduce others to abject poverty, spring from the deepest elements of our nature, and are unchangeable by human law, then this should be known, and the efforts of philanthropists should be directed towards teaching those laws of political economy which make the even distribution of wealth impossible. I shall consider the present state of the law and then the effect upon the distribution of wealth, of certain pro- posed changes, and these only briefly as my limited time will permit. If justice to the poor means simply equality with the rich before the law, the most cursory examination will show that the former suffer no injustice. Our law gives no privileges to wealth. The rich are nowhere mentioned in our statutes. The poor are often thus mentioned, but always in provisions for their benefit. They may be sup- ported wholly or in part at the public expense. They may be exempted from all taxation. School books may be furnished their children by the public. And besides these special provisions there are general provisions designed for their good. Such as provisions exempting a IS OUR LAW JUST TO THE POOR. 365 certain amount of property from taxation and other property from execution, and making our public schools free to all without charge. And the poor may have the full benefit of our police system and of our courts without contributing at all to the support of these institutions. Nor in the administration of justice do they suffer any disadvantage. The sympathies of our juries are notori- ously with the poor against the rich. And an elective judiciary is in little danger of straining the requirements of law or justice to the injury of the great mass by whose votes they have been chosen. If, therefore, all that can be demanded on behalf of the poor is absolute equality with the rich before the law, our inquiry has terminated, and the answer is clear. Our law does not discriminate against the poor. All the discrimina- tion is the other way . If this inquiry is to proceed it must be on the ground that discrimination against the rich is just and proper, and should perhaps be extended. On what ground can such discrimination be justified? Can it be contended that the accutnulation of property in large quantities is injurious to the public good and should be discouraged? How do men get rich? Not usually certainly by robbery or fraud. The poor man who would become rich and the rich man who would become richer have a plain course. They must live frugally and save their incomes. These savings they must invest in manufactures or trade, or in property likely to be productive by its use, or by an increase in value, or they may lend these savings to others, who will make such investments. In almost all ways in which profits are secured there is a large demand for labor. The successful manufacturer may furnish em- ployment for hundreds or thousands of laborers who would not otherwise be able to find the means of living. Society is like an army, utterly inefficient and even helpless without leaders. The' man who has the capital and skill to organize and carry on any great business is like a general 24 366 ELEMENTS OF LAW. in an army. He is of more value to the community than many laborers, who, like common soldiers, can do nothing without leaders. The great enterprises of modern society require great accumulation of capital, and the most skillful organizers of both labor and capital. Such men get rich, but in accumu- lating fortunes they are as useful to society as to themselves. The law should not discriminate against the rich because the accumulation of property is injurious to the public interest. Those who get rich by honest industry and skill are among the most useful members of society. The only ground on which discrimination against any class can be justified is that such discrimination is necessary for the best good of the community. The object of the law, it may be said, is to do the greatest good to the greatest number, and all individual rights must yield to this end. If necessary discrimination may be made between classes, and burdens put on those who can best bear them, the strong may be compelled to support the weak. Society may be reorganized on the principles of Christianity and the most advanced philanthrophy. It seems clear that there is a tendency in much recent legislation to this theory. It seems the only rational basis of some of our laws. We are getting to look upon government as a good father, who is found to do the best possible for all, in spite of their weaknesses and crimes. And in the further discussion of this subject I shall assume, without undertaking to prove it, that this theory is correct, that whatever will conduct to the good of society as a whole is just, and should be adopted, even though individual rights, deemed the most sacred, are sacrificed. But in pursuing this inquiry it is necessary to keep in mind that we have not reached the millennium, nor are we in Utopia. Though our purpose may be to organize society on the most useful basis, we must remember that most men IS OUR LAW JUST TO THE POOR. 367 are still working for selfish motives, and that to each indi- vidual his own good seems a more desirable object or pursuit than any public interest. Our inquiry now becomes this : Will the general good of society be promoted by laws which shall favor the poor more than existing laws ? This question will be discussed under several heads: I. Shall existing discriminations in favor of the poor be increased ? («) Shall they be still further favored in taxation f The taxes of the United States are obtained from duties on imports and from liquors and tobacco. Some of the States put additional taxes on liquors and tobacco, but the most of our State and municipal revenues are raised from direct taxes on property. The poor can be favored in taxes collected from imports only by relieving all articles of general necessity from such taxation, or by reducing the rate. The aim of the law-maker may well be to do this so far as consistent with other purposes equally important. Taxes on imports of luxuries have two advantages. They are paid by the wealthy, and often they are no burden to the latter. The desirable- ness of many articles of luxury is increased by an increase in the price. With many, the price of such things is the great standard of their value. To such persons an increase of price does no harm. They may get fewer or inferior articles, but if these are as costly as they can afford, the end they have in view, the exhibition of the superiority which their wealth gives them, is attained. Taxes on liquors and tabacco, though affecting the poor, should be maintained. The less the poor have of them the better will be their condition. A reduction of taxes on such articles, which increases the consumption, will not benefit the poor. There is a great danger in increasing the number of per- sons who shall be exempt from taxes for muncipal and 368 ELEMENTS OF LAU. State purposes. The amount of such taxation usually de- pends directly or indirectly upon the will of a majority of the voters. If the majority of those who determine the amount of our public burdens do not share in them, if they can feel that they are spending other people's money, reckless ex- travagance is likely to prevail. {b) Shall the ratio of taxation to property be increased as taxpayers are more wealthy f At present all our direct taxes are assessed upon all the taxable property of a State or municipality, and the percentage of tax to property is the same with rich and poor. Should the rich pay more in proportion to their means than the poor? It is evident that they may do this without suffering, since taxes with them mean either a diminution of luxuries, or savings, and not of necessities. Nor do I see any harm in such dis- crimination, where practicable, if the poor are left with enough of the public burdens to afford the necessary check to extravagance in imposing such burdens. Such discrimi- nation has been made in our income taxes without much objection, but taxes on income require such minute inquiry into the circumstances of each individual, and are so capa- ble of evasion by false representations, that they are un- popular and have been abolished. Discrimination in the ratio of taxation on property is difficult, if not wholly im- practicable, since the property of the rich is often scattered in so many taxing districts, counties, and even .States, that combined action between the various assessing officers would be impossible. • {c) Shall the taxes be increased and the surplus over present wants be spent for the benefit of the poor? In considering this question it is important to remember that every person's income is substantially spent as it comes in. It is spent in the purchase of necessities and luxuries, and so consumed, or it is loaned to others who spend it, or it is invested otherwise in such a way as to pro- duce a new income for the future , In whichever of these IS OUR LAW JUST TO THE POOR. 369 ways it goes, it reaches in large part the working classes, since necessities and luxuries and productive investment are all the product of labor. When then it is proposed to increase taxation in order to spend more for the benefit of class, the question is, whether the proposed expenditure by the government will be bet- ter for that class than a like expenditure by those from whom the increased tax is taken. Ordinarily, government expenditure is more wasteful than that of individuals. It ta.kes quite a percentage to collect a tax, and another percentage to pay those who di- rect the expenditure, and the laboring classes get neither. It may therefore well be doubted whether the laborers of a country get as large a proportion of the money raised by taxation and spent by government as they would if the same money was left in private hands and spent by them. But passing over these difficulties, in what way could the government benefit the poor by increased expenditure f One way would be by making more liberal provisions for all the indigent. But there is great danger here of in- creasing the number of those who have to be supported at the public expense. The tendency to indolence in human nature, especially among the poorest classes, is enormous. Nothing but a stem necessity will keep the mass of man- kind at regular employment. The races which live in the tropics where nature affords subsistence with but trifling labor, illustrate this. Remove this necessity, make the condition of the lazy poor more tolerable, and pauperism will make a corresponding stride forward. Considerations of religion and humanity forbid that those who have more than enough, should refuse to reheve their brothers and sisters suffering for want. But considerations derived from the laws of human nature, and confirmed by experience, warn us that charity may easily be extended, so as to be- come a curse to the recipient. Between these opposing forces, society, in its treatment of the poor, is likely to 370 ELEMENTS OF LAW. waver, inclined perhaps to too great charity, since feelings of religion and philanthropy are felt by almost all, while the ultimate result of excessive charity are distinctly seen by but few. It may be said, that though government should narrowly limit its giving to the poor, it would furnish them with work in dull times, and so allow the industrious to make for themselves a living. If government has work which the public necessities require, it may well prosecute it when the needs of the poor are the greatest. But the govern- ment ought not to engage in work not needed, merely for the sake of aiding the poor. It can not without danger of bankruptcy supply employment for all the poor during periods of great commercial depression, and if it did, the result would be to develop in the poor a habit of depend- ence on government, utterly inconsistent with the personal thrift and habit of saving for the future which are the most essential requisites of deliverance from poverty. ( d) Should more enlarged provision be inade for the educa- tion of the poor at the public expense f The great importance of universal education in countries governed by popular institution, is generally conceded. Such governments can be safe only where the governors, the people, are intelligent. And it is also of great consequence to such States that the avenues from the lowest ranks to the highest are open to all ; that every man of ability born in poverty can see that the social State affords him facilities for rising as high as his abilities and industry will permit. Otherwise he will be hostile to institutions which tend to keep him down. And probably the means of good education are the greatest aid to the ambitious poor. It is plain, also, that in spite of our present free schools, the children of the poor often enter on the work of life untaught in the elements of morality, of political economy, and of the duties of citizens, and that in consequence, there are growing up great num- bers of future voters who are exposed to deception by IS OUR LAW JUST TO THE POOR. 371 demagogues, and are liable to be taught doctrines at variance with the maintenance of good government. If these difficulties can be remedied, in a considerable part by a greater expenditure of money upon our public schools, no wise man will object. The State can well afford to spend as much money as can be judiciously used in such practical education of all the young, as will fit them for their work in life, and for the discharge of their duties to society and government. There are, however, many difficulties in the way of giving to all such enlarged education, and here as elsewhere in governmental matters, changes should be made slowly, and every change should be justified by ex- perience before it is made permanent. 2. Should the Government fix a limit to the amount of ivealth ivhieh any one person can possess ? (a) If it should, on what theory should such limit be made ? If it be said that no man should be allowed to acquire more than sufficient for the comfortable support of himself and family, the question comes, what standard of comfort should be fixed? It is plain that there never can be any agreement as to what one needs to supply the comforts of life. And I am at a loss to even suggest any other standard more capable of practical application. And any standard could be enforced only with the greatest difficulty. Men would hold property in the names of their relatives, and other agents. They would conceal it in innumerable places beyond the ingenuity of the government officials to discover. But if a law limiting the amount of property which one could hold, could be enforced, would it be beneficial to the poor? If the total amount of property in a community was fixed, and the rich got their great shares by taking away from the poor, it might be claimed that the loss of the rich would be the gain of the poor. But to suppose that property is generally acquired by robbery 372 ELEMENTS OF LA W. or injustice is to betray a total ignorance of the most common facts. {B) How do men acquire wealth ? The spectacle of the acquisition of property is going on all around us. One has only to look to see. The laborer who would get on, must work harder than others, and live more economically. In this way he saves a small capital. With this he begins business for himself. He now employs others. For their labor he must pay the market price. If he makes a profit it is but a fair return for directing their labor skillfully, and usually every step of his progress towards getting rich makes him employ more laborers, and direct them with greater skill. If now, at any step in this progress, he is stopped because the power of future acquisition is taken away from him, the result may be that the business is disorgan- ized and the laborers thrown out of employment, or at least the management of the business is thrown into other and probably inferior hands, and the man who organized it, unable to find some new occupation, becomes a drone in society, or perhaps sinks into habits of dissipation. It ought never to be forgotten that the skillful manufacturer, or other great employer of labor, does as really create, wealth by his skill in organizing as does any laborer by his manual labor. If you stop his work, the sum of the common product of the community will be reduced, and the laborers will lose perhaps more than any other class. And when once a man has got beyond the necessity of labor for subsistence, the common motive is the acquisi- tion of property. And the strength of his motive does not usually diminish with riches. The rich strive to get richer. The more they have the more they wish. And this passion often continues into extreme old age. Now, however irrational may seem the desire to keep up riches beyond what it is possible for the possessor or his family to profitably use, the effect upon society is beneficial. It IS OUR LAW JUST TO THE POOR. 373 keeps a man skilled in the control of labor at work, and so laborers are furnished with employment. And the greater a man's wealth, and the more he wishes to increase it, the more laborers he must employ. There is, there- fore, no point in the history of the richest man where, it seems to me, for the interests of society, that he should be induced to withdraw from business by taking away from him the hope of future acquisition. 3. Henry George's Plan. Henry George has, in his " Progress and Poverty," put forth a more radical cure for 'the evils of poverty than any I have discussed. He writes in forcible, at times eloquent language, with much learning, with great zeal, and apparently with perfect con- viction, that he has demonstrated the fallacies of the most eminent political economists, and found at length the panacea which shall cure all the evils which come from the unequal distribution of wealth, shall give to all the poor, however numerous they may become, comfortable sup- port, and take away from the rich their inordinate love of wealth. His views are important, if well founded. The purity of his purpose and the depth and sincerity of his convictions are so plain as to entitle him to the kindest consideration. He proposes to take away all private ownership in land, and have the State the one land owner. He contends that the only just basis of private ownership is that the thing owned is the product of labor, and that as land is not the product of human labor, it is unjust that it should be owned by any individual. The supply of land is limited. The land owner is a monopolist, and the monopoly grows worse and worse with the increase of population. The claim that production is the only just basis of ownership is but an assertion. If true, it must apply to nations as well as individuals, and the United States has no more right to this country than England. But if true, it would not justify Mr. George's conclusion. Land, as it now exists 374 ELEMENTS OF LA W. in civilized countries, is largely the product of human labor. And all the common products of labor, which, according to Mr. George's views, are justly the subject of ownership, are not wholly such. There is in every work of man a part which nature supplies. If man can right- fully own only what is solely his work, he can own nothing. There is an element in the value of land in civilized coun- tries, which comes from the increase of population, and the consequent increasing scarcity of land. But in this country, at least, the owners of land often pay full consideration for such advance by holding it when it brings but little return, and by paying taxes thereon. And even where they make great profit from a sudden and unex- pected rise in value, their rights do not seem less sacred than those of the owners of other kinds of property, the value of which has been increased by circumstances beyond their control. The true basis of the right of individual property is that only in this light has it been found practicable to induce men in general to labor and save to acquire wealth. And fixed and exclusive possession of land is as necessary to its improvement as to the production of personal property. And all the wealth of the world has been produced, in reliance on the law of private ownership. Those who have invested their money in real estate are as much entitled to protection as any others, and the abolition of property in one kind would be no more or less unjust than its abolition in another. But if it should become plain that the interests of society require the abolition in land, doubtless in some way the needed change will be affected. Before such a revolution is attempted there should be the clearest showing of its beneficial effects. And the utter want of any such showing is the most conspicuous defect in Mr. George's book. He hardly attempts to explain how his remedy is to cure the evils he portrays. He proposes to have the nominal /S OUR LAW JUST TO THE POOR. 375 ownership of land left where it now is, but to impose taxes so great as to consume the whole rental, less a small per- centage sufficient to pay for collecting rents. He would tax only the lands as unimproved, leaving the improve- ments to be private property. The difficulty of distinguish- ing the value of land wholly unimproved, and its value as improved, would often be very great, and it would proba- bly be impossible to devise any way of collecting taxes so near the total value of the land. If these difficulties were overcome what would be the result? The revenues received from the land would be so great as to enable the government, National, State and municipal, to abolish all forms of taxation. Would this reduce the burdens of the poor? Certainly not those of the thrifty poor; for their savings, after purchase of household furniture, are gener- ally invested in land, and the increased burden of taxation would fall with more than proportional weight on their homes. And the poor who have no property would save only such indirect taxes as they now pay on liquors and tobacco, and a few imported articles. This would be no great boon. The taxes collected would probably be in excess of all the present wants of the government. What should be done with the surplus? Here every difficulty would arise which has been discussed in considering the wisdom of increased taxation for the benefit of the poor. The purchasing power of the owners of lands, and hence their power of employing labor, would be greatly dimin- ished. Important branches of manufacture might have to stop in consequence. Immense numbers of laborers would certainly be thrown out of employment. Would the government take the place of the land owners as an employer? If so, what would it have done? Would it confine itself to the erection of public buildings for the use of government employers? If so, the work would, some- time, be completely finished. Would it build railroads and manufactures? If so, it would still further displace 376 ELEMENTS OF LA W. private employers. If it undertook to furnish employment of any kind to all who should apply, without reference to the times, it would soon be employing the surplus labor of the civilized world, and might become speedily bankrupt. There is no way in which Mr. George's plan, if success- fully put in force, would remove permanently any of the evils under which the poor now suffer. Rather it would intensify them all by making all laborers look to the State as to an all-bountiful father, ready to provide for all his children, provident and improvident, and so discourage that frugality and preparation for the future which constitute one of the greatest distinctions between the civilized man and the lowest barbarian. 4. Communism. The most sweeping remedy advo- cated for the ills of society is communism. Its advocates appear to be of two kinds: a very low class, who have thrown off all restraints of religion and morality, and are filled with an insane hatred for all who have more than they, and a much higher class, some of whom are men of education and culture, whose motives are unselfish, but who are so impressed with the existing evils of society that they are ready for the most radical changes. Of this latter class, there are not many in this country. And most of the former are foreigners, who have brought here a hatred of all existing institutions acquired in their native country. The fundamental principle of communism seems to be this, that all private property should be abolished, and thenceforth all the products of labor should be distributed to each person according to his needs, and not according to the value of his labor. The moral basis of this theory is the ideal Christian doctrine, that each one should love his neighbor as himself, and that all men are neighbors. The difficulty is to devise some plan by which the theory IS OUR LAW JUST TO THE POOR. 377 can be put into practice in a world where men do not love others as themselves, but quite the contrary. The attempt to divide all the property of a country in equal shares among its inhabitants, would meet with the greatest difficulties. Much property would be concealed or carried out of the country. What man or set of men could be trusted to estimate fairly the value of all the prop- erty in a nation or state, country, city, or even township, and divide it equally among the inhabitants? If one state, or city, or township, was found to have more than another, how could the excess be divided? Such division, if effected, would throw society into inextricable confusion. Much now called property would be useless, since fine houses, jewels, and the like, could be made use of by no one. Every one would be driven to manual labor, since no one would have the means to employ servants, and there would be no class compelled to accept menial employ- ment. Many occupations would cease with the destruc- tion of the class for whom they now work — the rich. But great as would be the difficulties of dividing exist- ing property, much greater would arrive in an attempt to divide equally the products of all labor. Such divisions between the inhabitants of a great nation, state, county, or city, would be impossible. Obviously small communities would have to be established, and the products of each community divided among its members. Not all of these communities could be engaged in tilling the soil. Some would have to be manufacturers, some sailors, some fisher- men, some carriers. Who should determine what work should be given to each community, and how the common work should be allotted among the individual members? How should the children be employed? Who of them should study medicine, law or theology? Should the state thus named have any religion, and if so, what? Who should determine the rate at which the products of one associa- tion should be exchanged for those of another? Would 378 ELEMENTS OF LAW. not one community in time grow richer than the others, and so produce something like the old inequality? Would not some communities become unable to support themselves, and if so, how should they be supported? These are but a few of the innumerable questions sure to arise if any attempt is ever made to carry the doctrine of communism into effect. And it is plain that persons would have in some way to be chosen, to determine these questions, and that the man having the power to determine mat- ters affecting so completely the life of each individual would have more power than the most absolute m.onarch ever exercised. All personal liberty, as now understood, would cease. Each man would have to work, and dress, and eat, and take his leisure, as the controller of his community directed. Slavery would become the common lot. And what would be the total product of all the labor of a country thus organized, as compared with the present? Would any man work harder for his community than he does now for himself? If any person is so philanthropic as to think he would, he is now at liberty to indulge his philanthropy, by doing as much as possible for others. Is it not certain that the great majority, relieved from the pressure of necessity, would do much less than now, and that gradually all society would sink into a condition of extreme poverty? Poverty and slavery appear to be the necessary results of carrying the principles of communism into practice. If any enthusiast denies this, let him develop some practical scheme by which it is possible to conceive a system of com- munism consistent with probably the personal liberty, and make it appear that man will work harder for society, in gen- eral, than for themselves. But the matter should not be con- fined to the development of our theories. Communists should associate together and carry their principles into prac- tice, by forming communities, based on their theories. Asso- ciations of believers will be much more likely to succeed in such undertakings than those upon whom such organiza- tions may be forced by law. If men can be induced to 75 06V? LAW JUST TO THE POOR. 379 work as well for the community as for themselves if they can be induced to submit to that privation of individual liberty which the system requires, these voluntary organizations may succeed, and so make a partial answer to the most obvi- ous objections to the system., But such communities must become very numerous, and prove more successful than any which have heretofore existed, before the adoption of com- munism by any nation will be entitled to serious considera- tion, except to answer the arguments of those who may delude and render discontented our poorer classes. It may seem to many that the time spent in the discus- sion of Mr. George's plan, and of communism, has been wasted. But the importance of these theories does not depend upon the weight of the rational arguments in their favor, but upon their influence upon the poor and unedu- cated, stirred by real hardships of their condition to seek any plausible means of relief Society under popular gov- ernments is safe, only, when the most intelligent enter into sympathy with the complaints and feelings of the lowest, and show themselves ready to do whatever is practicable for their relief. The result of this discussion makes it plain that no radi- cal change in our law which can be made will affect the poor beneficially. The form of society based on private property, which has been developed by the struggles of society, and which, though constantly assailed, has never been overthrown, is likely to continue, until the oft pre- dicted millennium has become actual, and all men have learned to love each other as themselves. And great as are the evils which flow from the present unequal distribution of wealth, it may be a question whether a state of equality in the richest would not be delivered from the necessity of manual labor would be better. Would not a general intellectual and physical torpor result from such inequality? If the poor now suffer from poverty, and envy the position of the rich, they find therein 380 ELEMENTS OF LAW. the strongest motive to such exertions as develop and em- ploy all their powers, and so give the surest happiness. If many of the rich waste the leisure their wealth affords, or become dissipated, so that life becomes a burden, many others devote their lives to objects which benefit all; to the laws of science and art, and political economy and govern- ment. And how much of that variety in life, which contributes so much to its interest, would be lost if all were reduced to one level of pecuniary condition ? If we would seek to improve the condition of society, we must not look to any change in its laws; nor to any great tide of revolution which shall suddenly make great improvements. What the race has been, it is likely to con- tinue to be. Its advancement will be slow. There is no sure way of improving society, but by the improvement of individuals. Each man's first duty is to improve himself, and to make his gains such an essential part of his nature, that through inheritance and example, his children will become better than he. We also have duties tp others, even the humblest, one of the chief of which is to aid them in seeing the realities of life and in escaping the delusions of those who would persuade them that the evils of society come from human laws which may be changed. To aid you, and through you others in escaping such delusions has been the object of this dis- cussion. THE CITIZEN AND THE STATE. 381 CHAPTER XVIII. THE CITIZEN AND THE STATE. To young men : — " Breathes there a man with soul so dead, Who never to himself hath said This Is my own, my native land ? " The man who renders " linto Caesar the things that are Caesar's and unto God the things that are God's" can never be a bad citizen. To be a good citizen, should be the aim of every American . Man is surrounded with many duties and obligations. There is his duty as a creature to recognize the claims of his Creator; as a citizen to recoginze the claims of his country ; as a husband and father to acknowledge the tender ties of love and effection ; and as a business man, or a pro- fessional man, or as a laboring man, he must properly re- cognize the claims of these various callings in life, and dis- charge them with earnestness and fidelity. Though there exist so many different and seemingly adverse relations, they will be found to harmonize perfectly. It is well known that religious persecution peopled America. This is a fact that all young persons ought to recognize and remember. It is one that must be recognized and diligently observed by the statesman of America, Back of it lies a great and fundamental principle of human nature. It is the greatest witness in histofy that there is implanted in man a religious nature. He must have a God to worship. It is a desire of his nature, and it is a desire which in some manner must be satisfied. No human law can prevent its gratification. This being true, no law should ever be passed to prohibit its exercise or to inter- fere with its gratification. This is the broad principle of toleration that was not known to the statesmen of Europe or England until of late years. The principle of toleration being the great boon sought by the pious pilgrims who settled the wilds of America, it is not strange that they 25 382 ELEMENTS OF LAW. determined to plant the tender vine in the virgin soil of a new continent and carefully protect it in its growth. This they did. Intolerance on the part of England led to the Revolution of 1776. Again, British intolerance led to the war of 181 2. And, if the leaders of the Southern States were honest in their statements, it may justily be said that it was, on the part of the South, a mistaken apprehension of intolerance that led to the civil war. There are no truer sayings than these ; if one is conscious that his principles are false, he will try to silence the person who is calling attention to their falsity. If a man knows his principles are right he will remain quiet until his opponent is done and then confute his arguments and overcome him with reason. But the principle of tolerance has no protection for those who denounce all forms of gov- ernment and advocate the destruction of private property. The raising of the red flag of communism in this country should insure arrest and punishment as surely as the raising the black flag of piracy on the high seas. The mere possession of the principle of tolerance, while it is fundamental, is not the only principle of a patriot. He must love his country, and to do that he must know her history. No one loves a stranger. Those we love the most are the ones of whom we know the most. It is essential for the due development of this principle that we know thoroughly the history of our country. But one can not become acquainted with the history of his country without knowing her political history. Every young man ought to study diligently the life and writings of Alexander Hamilton and Thomas Jefferson. They are the founders of the two great schools of American politics. But merely to possess the spirit of toleration, and the element of love for our country, is not enough to make us well rounded and perfect patriots. To these we must add action on behalf of our country. By action I mean that the citizen must make the needs and wants of his country para- THE CITIZEN AND THE STATE. 383 mount to his own. He must spend time to investigate her financial condition and at once devise means to provide the proper revenue. He must ascertain her standing and rela- tions to the other nations of the world and see that she is not insulted or slighted by anyone. If she is, he should be prepared and willing to redress at once the wrong offered, unless a suitable apology is made and followed by the proper amends. It should be his constant care and study to ascertain whether any of the laws of his country tend to build up her material wealth and prosperity at the expense of the manhood and womanhood of her citizens. If so, they should be abolished at once. It is a poor form of gov- ernment that sacrifices citizens for dollars. In the end, when she has destroyed the manhood and womanhood of her citizens, the enemy will come and despoil her of her wealth, because she has no men to defend her. One of the most important questions that is now agita- ting the minds of the American people is. What is the proper and just relation of women to the State? Ought they to be made equal with the men in political rights as they are in civil rights ? This is what is meant by the term " woman's suffrage" which is being discussed throughout the country. The author believes the Lorain memorial against woman suffrage, which was presented to the Ohio Legislature, contains the sentiments of the happy, con- tented and queenly wives and mothers, and of the noble, refined, educated and lovely young women who are proud of their womanhood, knowing that it is an estate nobler than that of manhood, if they are only worthy of its honors. The memorial is in these words: " We acknowl- edge no inferiority to men. We claim to have no less ability to perform the duties which God has imposed upon us than they have to perform those imposed upon them. We believe that God has wisely and well adapted each sex to the proper performance of the duties of each. We 384 ELEMENTS Of LAW. believe our trusts to be as important and sacred as any that exist on earth. We believe woman suffrage would relatively lessen the influence of the intelligent and true^ and increase the influence of the ignorant and vicious. We feel that our present duties fill up the whole measure of our time and ability, and are such as none but ourselves can perform . Our appreciation of their importance requires us to protest against all efforts to infringe upon our rights by imposing upon us those obligations which can not be separated from suffrage, but which, as we think, can not be performed by us without the sacrifice of the highest interests of our families and of society. It is our fathers, brothers, husbands and sons who represent us at the ballot-box. Our fathers and our brothers love us; our husbands are our choice, and one with us; our sons are what we make them. We are content that they represent us in the corn-field, on the battle-field and at the ballot- box, and we, them in the school-room, at the fireside and at the cradle, believing our representation even at the ballot-box to be thus more full and impartial than it would be were the views of the few who wish suffrage adopted contrary to the judgment of the many." The maintenance of the home is the chief thing. It is said by those who have examined the question closely that the largest number of divorces is now granted in the communities where the advocates of female suffrage are most numerous. If this be true, and it seems to be well authenticated, it is a strong plea, in the interest of the family and of society, against granting woman suffrage. A nation can not live without homes in which to keep alive domestic virtue, and such homes are the ones in which domestic concord dwells. In them the true mother is the ruling power, and without her there can be no home. What, then, is the conclusion? A nation can no more do without its noble tnothers than it can do without its statesmen and its warriors. Never has a nation fallen THE CITIZEN AND THE STATE. 385 but that the womanhood of its mothers was first under- mined and destroyed. When Rome was in her prime, when lived those mighty heroes that made her name illustrious and the synonym of power, then the womanhood of Rome wore the Crown of motherhood and her illustrious matrons headed by the noble Cornelia pointed with pride to their sons as their jewels. Then it was "to be a Roman was greater than a king." Afterwards motherhood was despised; then Rome perished for want of men. As nature and all the records of the past, as well as the earnest of the present, point to the fact that the hope of every nation lies in the proper education and training of its young men, how important then is it that every young man should ardently pursue those studies and seek that information which will best fit him for the discharge of the great trust of transmitting to the succeeding generation the political legacy of the past. It is a duty that every man owes to his country to take an active part in every election. If our politics are corrupt they owe their corruption to the Pharisees who are too pure or indifferent to take part in the elections. If the man who now condemns the corrupt condition of party politics had done his duty at every election, and had insisted' that every other man should do the same, the politics of to-day would have been as pure as they are now said to be corrupt; and to-day we could be proud of their purity, instead of being compelled often-times to deplore their degradation. But the point I wish to make is, I have no faith in the political reformer who has been derelict in the discharge of his past duties, the result of which has been to produce the present condition of which he is complaining, and of which he seeks to be the reformer. There is nothing in politics that is in itself bad. If there is anything bad existing it has been put there by some external cause. Remove the cause and the evil now found to exist will be taken away. If every man should go to every general election held in 386 ELEMENTS OF LAU . his township, county and State, and vote, he cannot yet say he has fully discharged his duty as a voter to his Government. It is just such endeavors as this, on the part of many moral citizens to discharge their duty to the State, that has led to the present trouble. Their mistake lies in not attending the primary meeting and expressing them- selves as to who shall be the party candidate. If the moral citizens remain away from the primary meeting the bad citizens will attend, and nominate one of their number as the party candidate. This is politically right. The bad citizen who goes to the primary election is just as worthy of the nomination as the moral citizen who is too indifferent and careless to attend. The moral citizen has no ground to complain. It is his own act that made it possible for the bad citizen to be nominated, and, therefore, he con- tributed to the nomination of that man as his party candi- date. If every man should attend the primary meeting, and cast his vote, the candidate will represent exactly the social and moral standing of that community. If a majority of the citizens are moral, so will the candidate be moral, if bad, so also will be the candidate. This being true there is no need for a political reformer, nor a political reform party. All that is required is for each citizen to perform his own duty, and there will be no need of reform as far as the moral tone of politics is concerned, and it is that of which I am now speaking. It has been said that a man must lay aside his manhood when he enters the political field to seek its honors. There are not to be found purer and nobler characters than some possess who have given their whole lives to the service of the State. Senator Miller, of New York, has well said: " I know there is much modern teaching, the tendency of which is to keep educated men and scholars from taking part in public affairs. Too many American colleges are turning out a class of young men who are making no adequate re- THE CITIZEN AND THE STATE. 387 turn to the State for their education. They hold themselves aloof from politics, as though they feared contamination. If their education has not been of that sterling quality which produces hearts and intellects capable of resisting the temptation of flattery, wealth and power, they have been educated in vain, and should be made to pass life in their cloisters, protected from the evils of a wicked world. We have too many educated men who are un- American in their sympathies, and un-Democratic in their lives. If they be lieve in the permanency of Republican institutions, they fail to give expression to that belief, or to do anything to advance the permanent interests of the commonwealth. If we should judge from their adoption of foreign inanners, ih.e\r diAvocdiCy of foreign political theories, and their devo- tion to foreign literature, that they preferred an aristocratic to a Republican form of government, we should not go wide of the truth. That such results are possible in American colleges is to be regretted, and calls for an immediate remedy, for it is doing much to injure and disparage our colleges among the people. " We are now led to ask the question : Should young men take an active part in politics? It may seem strange to ask such a question, but on this point there are opposing opinions. John Stuart Blackie in his work on Self Culture uses the following language: "Only an old soldier can tell how battles ought to be fought. Young men, of course, may and ought to have opinions, but there is no reason why they should print them." It is a pity that what is otherwise a most excellent work should be marred with such Walpoleism. The world has suffered less from young men's opinions than from old men's sophistry and fogyism. But let us turn for advice to one of the wisest of men, who possessed the noblest type of manhood, and who was endowed with an abundance of sanctified common sense, to "Paul, the Aged." He wrote in his old age to two young men whom he had placed 388 ELEMENTS OF LA W. in positions of honor and trust that required of them both the possession and expression of opin- ions; to one, Timothy, these words: "Let no man despise thy youth," and to the other, Titus, "Let no man despise thee." Paul's advice to these young men is this: " So live and so act that, notwithstanding your want of ag^, men will honor and respect your opinions." How are young men to do these things? Paul in another place gives them the directions as follows: "When I was a child I spake as a child, I understood as a child, I thought as a child, but when I became a man, I put away childish things." The question then, according to Paul, is not one oi years, as it is with Dr. Blackie, but one of "putting away childish things." If a young man has put away childish things he has both the right to possess and express his opinions, and a man who has not put away childish things does not possess this right, although his hair is white with age. Young men ought then to take an active part in every campaign. They should interest themselves in the study of the affairs of State and the welfare of the Nation. But while I advocate this I do not think it wise for them to follow politics as a profession, nor too early seek political honors. It is wrong in a Republic like ours to adopt the theory that old men are not capable of filling positions of great responsibility. If a man is sent to Congress in early life and shows a fitness for the position, he should be kept there as long as he is capable of properly performing the duties of his office. No tried and trusty servant should ever be dismissed simply to make room for another, that all may have a turn at the honors. A man need not necessarily be in office to be of the greatest service to the State. Many men out of office have done more for the State in their private capacity as a citizen than they could have done as an officer of the State. It is this point I wish to impress on the minds of the young men, and it is THE CITIZEN AND THE STATE. 389 on this principle I would have them first exercise their powers in the political arena. Let them thoroughly inform themselves on all the great questions of the day. Let them study the masters on political subjects, and then form opinions of their own, and, after first having stamped them with the die of originality, express them. Such action would secure for young men the protection of Paul's declaration, "Let no man despise thee. Let no man despise thy youth." Since, therefore, it is net a question of age, but oi fitness, which should determine when one should enter the public service, I cannot forbear to introduce in this place the opinion of Socrates upon this point as given by Charles RoUin. It is as follows: "The young people of Athens, dazzled with the glory of Themistocles, Cimon and Pericles, and full of a wild ambition, after having received for some time the lessons of the sophists, who promised to make them very great politicians, conceived themselves capable of everything, and aspired at the highest employments. One of these, named Glauco, had taken it so strongly into his head to enter upon the administration of the public affairs, though not yet twenty years old, that none of his family or friends were able to divert him from a design so little suited to his age and capacity. Socrates, who had an affection for him upon account of Plato, his brother, was the only person that could prevail upon him to change his resolution. " Meeting him one day, he accosted him with so much address and dexterity, that he engaged him to give him the hearing, which was already a great point gained. ' You are desirous, then, of governing the republic?' said he to him. ' True,' replied Glauco. ' You cannot have a more noble design, ' answered Socrates : ' for if you succeed, you will have it in your power to serve your friends, effectually, to aggrandize your family, and to extend the confines of your country. You will make 390 ELEMENTS OF LA W. yourself known not only at Athens, but throughout all Greece; and perhaps your renown, like that of Themis- tocles, may spread abroad amongst the barbarous nations. In short, wherever you are, you will attract the respect and admiration of the whole world. ' " So smooth and insinuating a prelude was extremely pleasing to the young man, who was attacked on the blind side. He stayed willingly, without requiring to be pressed so to do, and the conversation continued. ' Since you desire to be esteemed and honoured, no doubt your view is to be useful to the public?' 'Certainly.' 'Tell me then, I beg you, in the name of the gods, what is ^t. first service you propose to render the State?' As Glauco seemed at a loss, and meditated upon what he should answer: 'I presume,' continues Socrates, 'it is to enrich it, that is to say, to augment its revenues.' ' Ex- actly so.' 'You are well versed then, undoubtedly, in the revenues of the State, and know perfectly to what they may amount? You have not failed to make them your particular study, in order that, if a fund should happen to fail on a sudden by any unforeseen accident, you might be able to supply the deficiency by another?' 'I protest,' replied Glauco, 'that never entered into my thoughts.' 'At least you will tell me to what the expenses of the republic amount; for you must know the importance of retrenching such as are superfluous?' 'I own I am as little informed in this point as the other. ' ' You must therefore defer your design of enriching the State till another time ; for it is impossible you should do it, whilst you are unacquainted with its revenues and expenses.' ' But, ' said Glauco, ' there is still another means, which you have not mentioned. A State may be enriched by the ruin of its enemies.' 'You are in the right,' repHed Socrates. ' But that depends upon its being the strongest; otherwise it incurs the danger of losing what it has. For which reason, he who talks of engaging in a THE CITIZEN AND THE STATE. 391 war, ought to know the forces on both sides ; that if he finds his own party strongest, he may boldly advise the war, and if weakest, dissuade the people from undertaking it. Now, do you know the strength of our republic, and that 9f our enemies by sea and land? Have you a state of them in writing? Be so kind to let me see it' 'I have it not at present,' said Glauco. 'I see then,' said Socrates, ' that we shall not soon enter into a war, if you are charged with the government ; for you have abundance of inquiries to make, and much pains to go through, before you will resolve upon it.' - He ran over in this manner several other articles of no less importance, with which Glauco appeared equally unac- quainted ; till he brought him to confess how ridiculous those people were, who have the rashness to intrude them- selves into the administration of affairs, without any other preparation for the service of the public than that of a high esteem for themselves, and an immoderate ambition of rising to the first places and dignities. ' Have a care, dear Glauco,' said he to him, ' lest a too warm desire of honours should deceive you into pursuits that may cover you with shame, by setting your incapacity and slender abilities in full light." Glauco improved from the wise admonitions of Socrates, and took time to inform himself in private before he ventured to appear in public. This is a lesson for all ages, and may be very useful to persons in all stations and conditions of life. Socrates did not urge his friends to enter early upon public etnployments ; but first to take pains to improve their minds by the knowledge necessary to their success in them. "A man must be very simple," said he, "to believe that the mechanic arts are to be acquired without the help of proper masters, and that the knowledge requisite in governing States, which is the highest degree of human prudence, demands no previous labour and 392 ELEMENTS OF LA W. application.' His great care, in regard to those who aspired at public employments, was to form their manners upon the solid principles of probity and justice; and espec- ially to inspire them with a sincere love of their country, with the most ardent passion for the public good, and a high idea of the power and goodness of the gods ; because, without these qualities, all other abilities serve only to render men more wicked, and more capable of doing evil. There remains but one point more to be mentioned, namely, the ingratitude of the people to their rulers. The people of a congressional district choose a man to represent them in Congress because they agree that the views held by the candidate represent in general their views, and they are willing to risk his opinions and abide by his judgment and adopt them as their own. This being true, whenever they consider that he no longer represents their views and opinions, they are at liberty to choose another that does. So far the working seems simple and easy, but, in practice, it is more difficult. The representative spending all his time studying a particular subject, hearing able arguments for and against it, often times is led to look at the subject in a far different light than is now the opinion of his constituents who are not so well informed on the subject. They petition him to vote one way, and his judgment dictates the other, which should he follow ? I believe the statesman would not hesitate long, but would say : I consider that the best interest of my country de- mands me to vote this way, and, although my constituents are of a contrary opinion, I still must do so, hoping that when they have heard my reasons, and sufficiently studied the question, they will agree with me. The demagogue takes the other side of the question hoping that he may be returned to Congress. It is at this point that the ingratitude of the constituents manifests itself. They vote resolutions of censure condemning the action of the representative and announcing his political death warrant. Why ? Simply THE CITIZEN AND THE STATE. 393 because he was faithful to his conscience and his oath. I fear many constituents fail to remember that the representa- tive is required to take an oath to vote for the best interest of th^ Nation. To keep that oath he must vote as his own judgment dictates. Surely no one will claim that a repre- sentative can keep his oath when he votes contrary to his own judgment simply because his constituents petition him to do so. Who suggested the resolution that caused the doors of Faneuil hall, the Cradle of American Liberty, to be closed against Daniel Webster because of his speech of March 7th, 1850 ? Is there any struggle as to who shall have that honor ? How base was the ingratitude of Boston towards the man to whom she owes more thanks and gratitude for the glory and honor with which she is clothed than any other son of Massachusetts. But Webster does not stand alone. The legislature of Massachusetts fell a prey to the same passion, and passed a vote of censure on the great servant and apostle of liberty, Charles Sumner, whose fitting adieu to earth and greeting to heaven was "Don't let my Civil Rights Bill fail. " What acts of in- gratitude ? How could any constituents so easily forget the many acts of kindness and the glory won by these men, and be led to declare that they are no longer worthy to speak within the sacred walls of Faneuil hall ? These are but examples. History is stained all over with such base ingratitude. William Pitt, ' ' The Great English Commoner," who did so much for liberty and for the cause of humanity, felt the sting of this viper and died with scarce a dozen of friends in all England. This principle of ingratitude has vented itself against every great statesman who has had the misfortune to live past the pinnacle of his fame. Even George Washington experienced it in all its bitterness. In December, 179S, the House of Representa- tives voted down a resolution containing an expression of their confidence in the President, and their approval of his 394 ELEMENTS OF LA W. course. So bitter were the aspersions upon his character that he declared he would rather be "in his grave than in the Presidency. " Again, when speaking of the attacks on him he said they were made, " in terms so exaggerated and indecent as could scarcely be applied to a Nero, a notorious defaulter, or even a common pickpocket. This reference to Washington has been introduced to con- fute the statement that our political campaigns are charac- terized by more bitterness and aspersions upon personal character than they were formerly. We are too prone to magnify the virtues of the past, and to dwell on the evils of the present. This is wrong. We have as noble and pure statesmen living to-day as ever lived. We have as much patriotism instilled in the blood of the young men of America to-day as was found in the " Boys of '6i," and our " Fathers of 'jQ." Our country is in no danger for lack of any of the elements that are required to make her great. Her future is so great that even the brightness of the dawn is dazzling. The mention of the statesmen, whose names shall appear on the pages of her history in its high noon of glory, will create as great enthusiasm and venera- tion in the ages to come as those of the past create to-day. And in those distant ages the bards will continue to sing of the heroes of the past, " And wives still pray to Juno For boys with hearts as bold As his who kept the bridge so well In the brave days of old. " But that those days may come and that we shall have some glory in their greatness, we must, to- day, perform faithfully every trust given to us, and discharge every duty devolving upon us. If we do these things, if we possess the spirit of toleration, if we have the love of country coupled with faithful and patriotic action on her behalf, if we are faithful in the discharge of our great trust and transmit unimpaired to generations the priceless principles THE CITIZEN AND THE ST A TE. 395 of political and religious Liberty and Freedom which we have received from our Fathers, it will be glory and honor enough to lie down to rest and have written on the little slab that shall mark our resting place, — Here Lies One Who Loved His Country Next To His God. THE END. *w„» y ■ 4', /■,'„■',." . 'Sy .'y- ii,Vv' yy, 1'", , ,-jvi"ti,y,yi.';,yyy'i',a' , '„ ,/■ . 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