QJnrnpU Ham i>rljnnl IGtbtaty Cornell University Library KF 386.F94 1891 Questions and answers on municipal law : 3 1924 018 799 464 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/cu31924018799464 QUESTIONS AND ANSWERS MUNICIPAL LAW CONTAINING ABOUT ONE THOUSAND OF THE MOST IMPORTANT QUESTIONS PROPOUNDED TO LAW STUDENTS, BOTH AT THE NEW YORE SUPREME COURT AND COLUMBIA COLLEGE LAW SCHOOL EXAMINATIONS, EMBKACING THE FOLLOWING SUBJECTS : CONTRACTS; REAL PKOPERT'X ; PATENTS, COPYRIGHTS AND TRADE- MARKS; TORTS; SHIPPING AND INSURANCE ; CRIMINAL LAW; EQUITY; EVIDENCE; PLEADING AND PRACTICE AT COMMON LAW AND UNDER CODES OF CIVIL PROCEDURE. GEOEGE GARDINER FRY, LL.B., UEMBEB OF TEE KEW TORE EAB. NEW YORK: L. K. STEOUSE & CO., Law Publishers, 95 Nassau Stbeet. 1891. COPTEIGHT, 1887, Px; GEOKGB GAEDINEB FET. INTEODTJOTIOK Although the most superficial examination of this work cannot fail to reveal its general character, the author never- theless feels that an explanation of the visible incompleteness of the subjects treated may be considered not impertinent. To accomplish this end satisfactorily, the method pursued in selecting the questions should be stated. Through the courtesy of Mr. Robert Senf tner. Secretary of Columbia Col- lege Law School, the prize examination papers issued by the faculty of that institution for the past ten years were pro- cured, and these, together with questions propounded by the Supreme Court Examiners in the First and Second Depart- ments of New York State, for a period of almost equal length, comprise the majority of the questions contained in this volume. These questions were classified by the author and an- swered according to the most approved authorities, the appro- priate citations being appended to each answer. The most important questions were found to be repeated many times, and this reduced their number from over two thousand to scarcely one half that sum. The task of classification revealed the fact that many unimportant branches of the municipal law were either only slightly treated of or entirely ignored. The want of symmetry occasioned by this incomplete treatment of the subjects under consideration the author has made no material attempt to remedy, believing it of more importance to the student preparing for his examinations to be able to answer questions which, in all probability, will be asked, than to be prepared upon those in reference to which his examiners will make no inquiry. The author does not claim to have reduced the law to such a Kmited compass that it can be contained within the IV INTEODUCTION, covers of a single volume ; neither does lie profess to have become the guide, philosopher, and friend of the " innumer- able caravan" of vpould-be lawyers, to the exclusion of all legal text-books now in existence. What he does claim, how- ever, is that, if, after a thorough study of the works of our most eminent jurists, the student will turn his attention to this volume for the purposes of a genera.1 review, he will be enabled to pass such a satisfactory examination as is necessary to obtain the coveted title of Attorney and Counsellor-at-Law. QUESTIONS AND ANSWERS ON MUNICIPAL LAW. CHAPTER I. LAW IN" GENERAL. SEC. 1. GEWEEAL QUESTIONS. 1. Define municipal law. The word law, in its most general and comprehensive sense, signifies a rule of action. Municipal law is a rule of civil conduct prescribed by the supreme power in the State. The two great divisions of municipal law are the common law and the statute law. The common law is announced by the judges, and may be found in the various State and federal reports. The statute law comprises the different acts passed from time to time by Congress and the State legislatures. These reports and statutes, together with the Federal and various State constitutions, form the municipal law of the United States. See Wait's Pr., vol. i., p. 1 ; Bouvier's Law Diet., vol, ii., p. 15, 2. What is ex-post-facto law ? It is that branch of retrospective legislation which bears more severely upon an alleged criminal than the law did at the time the act was committed, either by increasing the 2 GENERAL QUESTIONS. [CHAP, I. pTinishment or rendering conviction more easy, or by chang- ing the kind of punishment. Ex-post-facto laws are forbidden by the United States Constitution. See D wight's Notes on Blks., 2 Col. Jur. 44 ; U. S. Const, i Art. 1, § 9. 3. What was the Civil or Roman law ? The municipal law of the Roman Empife. It was made up of the law of the ancient rulers of the empire — a code known as the Twelve Tables, the Statutes of the Senate, the Edicts of the Praetors, and the Responsa PlTidentium. These laws were digested during the reign of Justinian and subse- quently into the Institutes, the Pandects, the New Code, and the Novels, and form the Roinan law, or, as it is some- times called, the corpus juris civilis. The admiralty law of the United States is founded upon this system of jurisprudence. Mackeldy, § 21 ; 1 Bouvier's Law Diet. 276. 4. What is international law ? It is that system of rules which civilized States acknowl- edge to be obligatory upon them in their relations to each other and to each other's subjects. 1 Bouvier's Law Diet. 739. 5. What were the principal provisions of the Magna Charta ? That the Court -of England should be fixed at Westmin- ster, and that no free man should be deprived of his life, lib- erty, or property except by the judgment of his peers and the law of the land. It was wrung from King John by his barons on the 19th of June, 1215. 4 Shars. Blackst. 423 ; Wharton's Lex., 2d Lond. ed. 6. JS'ame some leading cases, and state what they decide. {a) English leading cases : 1. Button V. Poole, 1 Ventris 318. A contract made be- tween A and B, for the benefit of C, may be enforced by the latter, although he be a stranger to the agreement and consid« eration. CHAP. I.J GENERAL QUESTIONS. 3 2. Paradine v. Jane, Aleyn R. 26. Where the law im- poses a duty, the act of God will excuse its performance ; if, on the other hand, the party takes it upon himself, the act of God will not excuse him. These cases have been adopted in the United States in Lawrence v. Fox, 20 N. Y. 268 ; Harmony v. Bingham, 12 N. Y. 99 ; Todd v. Weber, 95 N. Y. 181. (&) American leading cases : Quimby v. Yand.erMlt, 17 N. Y. 306. A part owner of one of several lines for the transportation of passengers, run- ning in connection over different portions of a route of travel, may contract as principal, and render himself liable as such' for the conveyance of a passenger over the whole route ; and such a contract may be established by the circumstances, not- vTithstanding the passenger received tickets for the different lines, signed by their separate agents. ,- Howard v. Daly, 61 N. Y. 362. Where a contract for future employment and service has been entered into, and, upon the arrival of the time specified for the commencement of the service, the employe being ready and willing to per- form, the employer absolutely repudiates the contract, this is equivalent to a refusal to allow the employe to enter upon the service, and is a breach of the contract. 7. Define eminent domain ? It is the right of the State or Government to take the property of a private citizen for public uses, upon the pay- ment of an appropriate compensation. There is a special pro- vision in the United States Constitution that " private prop- erty shall not be taken for public use without ]'ust compensation.' ' Chase's Blks. 79 ; 45 N. Y. 234. 8. On what ^inciple is the right of eminent domain exer- cised ? On the principle that the highest and most exact idea of property remains in the Government, or in the aggregate body of the people in their sovereign capacity, and that they have a right to resume the possession of this property in the manner directed by the constitution and the laws of the State, 4 ' GENEEAL QUESTIONS. [CHAP. I. whenever the public interest requires it. Beekman v. The R. R. Co., 3 Paige's Ch. (N. Y.) 45. 9. How is it enforced f In New York it is provided that when private property- shall, be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury or by not less than three commissioners appointed by a court of record as shall be prescribed by law. A similar mode of procedure is followed in most of the States. Art. 1, § 7, N. Y. State Constitution ; 27 N. Y. 308. 10. What principle was decided hy the Dartmouth College case ? It was decided by this case that the act creating the college a corporation and its acceptance constituted a contract between the corporation and the Government which could not be destroyed by legislative act ; that the United States Constitution protects the charter of a corporation by the clause that no State shall make any law impairing the obliga- tion of a contract ; that it makes no difference that no money was paid by the corporation ; nor is it of any consequence that the charter cannot furnish any pecuniary benefit to the trustees. It is enough that persons for whom they act may derive a benefit. Trustees of Dartmouth College v. Wood- ward, 4 Wheat. 636. SEC. 2. HUSBAND AND WIPE. 11. What is marriage ? Marriage is a civil contract, by the terms of which a man and woman agree to live together as husband and wife. Reeve's Dom. Eel. 307 ; Clayton v. Wardell, 4 N. Y. 230 ; 1 Yerg. (Tenn.) 110, 112. 12. Is any particular form required to he observed to render the marriage contract of binding force ? The performance of a marriage ceremony, ecclesiastical or Jay, by priest or magistrate, is not in any sense necessary to CHAP. I.] GENEEAL QUESTIONS. 5 render a marriage valid. In the State of Maryland, how- ever, the marriage contract must be solemnized by a priest. Cunningham v. Burdell, 4 Bradf. 34.3 ; Graham v. Bennet, 2 Cal. 503 ; 3 Wait's Acts. & Defs. 627. 13. WIio may marry f All persons not suffering under some disability, such as want of age, unsoundness of mind, physical incapacity, force or fraud in gaining consent, consanguinity within certain pro- hibited degrees, or a prior existing marriage of either of the parties. 4 Johns. Ch. 343 ; 3 Phillim. 325 ; 51 Barb. 270 ; 3 Wait's Acts. & Defs. 628-635. 14. By what law is the legality of a marriage governed ? By the lex loci contractus, or the law of the place where the contract was made. State v. Boss, 76 N. G. 242 ; 3 Wait's Acts. & Defs. 634. 15. How may a marriage be dissolved? By death or by judicial decree of divc)rce by a court hav- ing jurisdiction over the parties. Adultery is generally the only ground for total divorce. 2 Wait's Acts. & Defs. 528. 16. What right does the husband acquire by his marriage in the property of his wife? The common law rights of the husband in the property of his wife are as follows : (1) Where she has an estate in fee in real property. In this case the husband has, if there be no issue of the mar- riage, an estate for the joint lives of himself and wife. If there be issue, an estate for his own life, called tenancy by the curtesy. (2) Where the wife has a life estate in land. In this case he has the rents while he lives and until his wife's death. (8) Leases belonging to wife. These belong to the hus- band while they both live. On the death of either they go to the survivor. (4) Her things in action. These, if reduced into posses- sion during the wife's life, belong to him. If the wife dies 6 GENEEAL QXTESTIONS. [CHAP. 1, before they are reduced into possession, lie takes them as an administrator, charged with the duty of paying her debts. If the wife outlives him, and they are not reduced to possession, they belong to her. (5) Strictly personal property, such as tangible goods and chattels. These pass to the husband at the moment of mar- riage. D wight's Notes on Blackstone, 2 Col. Jur. 57. 17. What interest has the wife in the 'property of her hus- band at common law ? The wife's interests independent of statute are : (1) Her paraphernalia. In these she has a qualified right, the general ownership being stUl in the husband. (2) Dower in the real estate. The wife has a contingent right of dower at the moment of marriage, but it cannot be- come an estate until her husband's death and she survives. In that case proper legal proceedings may be taken to have one third part of the property set apart for her use dur- ing life. (3) The wife has no common la,w right in the husband's personal property. By a statute passed in the reign of Charles the Second, called the Statute of Distributions, she takes a share in his estate — that is, provided he dies intestate. ' This is generally re-enacted in this country. Property settled upon the wife, through the medium of a trustee, for her sole and separate use, is not subject to any of the righrs which her husband exercises over her other interests ; and such a settlement can be made independent of statute, and will be enforced in her behalf by a court of equity. Dwight's Notes on Blackstone, 2 Col. Jur. 57, 58. SEC, 3. PAREKT AND CHILD. 18. What is a father's liability for the support of his child ? A parent is bound to provide his infant children with necessaries ; and if he neglect to do so, a third person may supply them and charge the parent with the amount. But such third person must take notice of what is necessary for CHAP. I.]' GENERAL QUESTION'S. 7 the infant acoorvling to Ms situation in life ; and where the in- fant lives with his parent and is provided for by him, a person furnishing necessaries cannot charge the parent. Wheeloch v. BrinckerTioff, 13 Johns. Ch. 480 ; Tuhb v. Harrison, 4 Tenn. 118 ; Cooper v. Martin, 4 East, 76. 19. Is a parent liable for the torts of Ms child ? , He is not. The remedy of the person injured is against the child ; but if an injury be caused by the negligence of the chUd whUe acting for his father and within the scope of his employment, the "father would be liable in the same manner as he would had it been the tort of some other servant. Wil- son V. Gerrard, 59 lU. 51 ; Tift v. Tlfft, 4 Denis, 175 ; Strohl V. Levan,'6d Penn. St. 177. 20. Who is an infant ? An infant is one under a certain age, usually twenty-one years. In some States females are of age at eighteen. It is a rule of law that an infant comes of age the day before his twenty-first birthday. When an infant has reached the age of fourteen he is deemed capable of exercising his discretion. 5 Wait's Acts. & Defs. 60-81. ^1. Is a parent entitled to the services of his child? A parent is entitled to the services and earnings of his minor child, provided he has not emancipated him. Emanci- pation, when used in this connection, means the relinquish- ment by the father, either by express words or by implica- tion, of his right to the services or wages of his child dur- ing minority. 5 Wait's Acts. & Defs. 54-59 ; Shute v. Dorr, 5 Wend. 204 ; Torrens v. Campbell, 74 Penn. St. 470. 22. What is an infant's disability jfor his contracts ? An infant is not bound by his contracts, except those en- tered into by him to procure necessaries for himself. Neces- saries are such articles as are usually the property of one occupying the infant's social position. Stone v. Dennison, 13 Pick. 1 ; Angel v. McLellan, 16 Mass. 28 ; Kline v. BAmoreaux, 2 Page 419 ; 5 Wait's Acts. & Defs. 65. 8 GENEEAL QUESTIONS. [CHAP. L SEC. 4. GTJAKDIAN AND "WAED, 23. Who is a guardian ? A guardian is " one who legally has the care and manage- ment of the person, or the estate, or both, of a child during its minority." The infant is known as the "war^" of the guardian. The term "guardianship'^ is frequently applied to those who are unable to take care of their own affairs, such as idiots, drunkards, and the like, the guardian of such a person beihg in such a case appointed by the court. Such guardians ard usually called " committees.''^ 3 Wait's Acts. & Defs. 532 ; Keeve on Dom. Eel. 311 ; Schoul. on Dom. Eel. 389. 24. Who is a guardian in socage ? At common law a guardian in socage was the nearest male relative by blood of the ward, who could by no possibil- ity inherit the estate. By reason of the laws governing de- scents, a guardianship in socage can rarely exist in the United States. A guardian in socage has the custody of the land, and is entitled to the profits for the benefit of the heirs. A guardianship of this nature ceases when the infant ar- rives at the age of fourteen ; it will continue, however, if no other guardian is appointed upon the infant's attaining such age. 3 Wait's Acts. & Defs. 533 ; Byrne v. Yan Sbesen, 5 Johns. 66 ; 2 Mod. 176. 25. Who is a guardian hy nature or hy nurture ? Guardianships of this character belong only to one or the other of the parents. The father has the primary right to act in such a case, but if he be dead, the duty devolves upon the mother. A guardian by nature or nurture has authority only over the ward's person, and can exercise no control over the' prop- erty belonging to the ward, unless he is appointed by some public authority having sufficient jurisdiction. 3 Wait's Acts. 6 Defs. 535 ; Hammond v. Cobhett, 50 N. H. 501 • Matthew- son V. Perry, 37 Conn. 435. CHAP. II. J CONTEAOTS. 9 SEC. 5. MASTER AND SERVANT. 26. What is the difference between a servant and a con- tractor ? Between a servant and an agent ? — A servant dififers from a contractor in that he may exer- cise no discretion as to the manner in which his work shall be performed, whereas a contractor may perform the service which he has undertaken in any way he sees fit, provided the result is such as he has agreed to produce. An agent's business is to make contracts for his master ; I// such is not the duty of a servant. 2 C. and B. N. S. 790. 27. May a master recover damages for a 'battery inflicted upon his servant ? He may ; and it may be stated, as a general rule, that a master may sue and recover from any person whose negligence has caused the sei-vant such injury as to destroj'^ or materially injure his ability to labor. 4 Wait's Acts. & Defs. 406 ; Dirtin V. S~ell, 1 Stark. 287. CHAPTER II. CONTRACTS. SEC. 1. CONTRACTS IN GENERAL. 1, Define a contract. A contract is a valid agreement between two or more per- sons to do or not to do some specified thing. Taney, C. J., 11 Pet. 420, 572 ; Marshall, C. J., 4 Wheat. 197 ; 1 Parsons on Contracts, 6. 2. Distinguish between the words bond, obligation, cove- nant, agreement, contract, and promise. The words bond, obligation, and covenant are applied to sealed instruments exclusively. Agreement, contract, and promise are applied to oral engagements, or if written, not under seal. 2 10 COETTBACTS. [CHAP, II. To consider them more specifically : A bond is an obliga- tion under seal to pay a sum of money or perform an act, and is either simple or on condition. Any promise to pay money, even in the form of a promissory note, is a bond, if a seal is attached. 'Such engagement would be a simple bond. A bond upon condition is one where it is provided that if a cer- tain act be done, it shall be void, otherwise to be in full force. Such an instrument is almost universally employed to secure the good conduct of officers, whether public or officials in cor- porations. An obligation is substantially the equivalent of bond, but it is not so much used in practice as the word bond. The word covenant is commonly employed to indicate a 'l particular clause in a sealed instrument. For example, there may be a score of covenants in a single instrument. Promise is a generic word, and may include cases that are not contract. The other two words, agreement and contract, are appropriated to the special case of promises where there is a consideration, and would include the case of mutual prom- ises where one is the consideration for the other. Dwight's Notes on Contracts, 2 Col. Jur. 68 ; 1 Parsons on Contracts, 6. 3. What are tJie necessary elements of a valid contract ? There must be parties competent to contract ; something to contract for or in reference to ; a consideration, and the as- sent of both to the terms of the agreement. 1 Parsons on Contracts, 8 ; 1 Pick. Mass. 278 ; 3 Taunt. 169. 4. Classify contracts as to their grade. 1. Contracts of record are such as are evidenced by the public records, and include judgments, recognizances, etc. These contracts are considered to be of higher grade than agreements of any other nature. 2. Contracts of specialty are such contracts as are under seal, and rank next in importance to contracts of record. 3. Simple contracts are of the lowest grade, and are all such as are not included within one of the former classes, Bouvier's Law Diet. 356 ; 1 Parsons on Contracts, 7 ; 4 Blks. Comm. 465 ; 11 Mass. 27. CHAP. II.] CON.TKACTS. 11 5. State the legal effect of substituting a contract of a higher grade for one of a lower grade. The doctrine of merger applies in such>-ca^e, and the contract of the lower grade is said to have mergMinto and beea extinguished by the one of higher grade. The following rules govern all cases of this nature : 1. If there be charges on the books against A, and subse- quently he give his promissory note for the s^me, there will be no merger, the grade of the two being equal ; accordingly, if the note were not paid at maturity, the action might be brought on the book charges or on the note. 2. If a sealed instrument had been given in place of a simple contract, the latter would have been extinguished, and the right of action would then be confined to the sealed in- strument. This rule is not applied where the sealed instru- ment is merely collateral to the simple contract, as mere se- curity, for example, but it must be in place of it. 3. If any cause of action, bq it on contract sealed or un- sealed, or a tort, be reduced to a judgment, there is a merger in the judgment. In this way a tort may be changed into an implied contract. This latter rule has, however, been modi- fied in New York State in one instance, and that is where a judgment has been obtained by confession. Dwight's Notes on Contracts, 2 Col. Jur. 68, 69 ; Oandee v. Smith, 93 New York, 349 ; New York Code of Civ. Pro., § 1278. 6. State the rules for determining whether a joint or a several, or a joint and several liability has been incurred. Here there are two general cases : First, promissors ; second, promisees. 1. In the case of promissors, if there be an express con- tract the words used must be regarded ; then comes the pre- * sumption that the promise by two is joint, and that special words are required to make it joint and several. If the case be one of an implied contract, there are no express words of course, and resort must be had usually to the inquiry as to who received the consideration. 2. Actions by the promisees. Here there are only two in- stances, joint promisees and several promisees. If it be the 12 CONTEACTS. [CHAP. II. case of an express contract, whicli is sufficiently clear, the words must be regarded. If, however, the words be ambigu- ous, or there be none at aU, then the inquiry is, who advanced the consideration ? If the consideration was advanced jointly the cause of action is joint, otherwise several. KeigJdley V. Watson, 3 Ex. 716 ; Dwight's Notes on Contracts, 2 Col. Jur. 69. fj 1. Is there any such class as joint and several creditors? When we come to bring together the subject of joint and several rights and obligations, it will be found that there are five possible divisions, and these are : 1. Joint debtors. 2. Several debtors. 3. Joint and several debtors. 4. Joint creditors. 6. Several creditors. But there is no such class as joint and several creditors. Dwight's Notes on Contracts, 2 Col. Jur. 69 ; 1 Parsons on Contracts, 11 ; Hemmenway v. Stone, 7 Mass. 58. J 5. WTiat is the effect upon a joint contract of the death of e of the Joint parties ? The survivor or survivors are, at common law, bound to pay the entire debt, and cannot demand contribution from the representatives of the deceased party ; but if the debtors were honndi jointly and severally, the death of one would not have this effect. In most of the States the rules of the common law have been changed by statute, and the representatives of a deceased joint debtor are responsible for his share of the in- ^debtedness. 1 Parsons on Contracts, 30 ; Tories v. Peck, 'l4 Barb. 644 ; 73 New York, 593 ; New York Code of Civ. Pro., §§ 1982-47. 9. What form of contract is one commencing '■'■ I promise to pay, '^ and signed iy two or more persons ? Is it joint, or joint and several ? It is joint and several. Dwight's Notes on Contracts, 2 Col. Jur. 69 ; 1 Parsons on Contracts, 11-20. CHAP, II.] CONTRACTS. 13 SEC. 2. PARTIES TO A CONTRACT. 10. At common law can a married woman contract? Ko, she cannot. 1 Parsons on Contracts, 346 ; SmitJi V. Plomer, 15 East, 607. 11. Has the disability of a married woman to contract been in any way modified by statutory enactment ? It has been to a large extent modified in both New York and many of the other States. The New York statute provides that " a married woman ) 1 1 may contract to the same extent, with like effect and in the same manner as if unmarried ; and she, in her separate estate, can be liable thereon whether snch contract relate to her sep- arate business or estate or otherwise ; and in no case shaU a charge upon her separate estate be necessary. " It is stated in a subsequent section, however, that "this act shall not affect or apply to any contract which shall be made between husband and wife. " New York, Laws of 1884, ch. 381 ; Dwight's Notes on Contracts, 2 Col. Jur. 106. ^ 12. At common law can a feme sole contract? Yes ; but all such contracts, if of a beneficial nature, enure to the benefit of her husband should she subsequently marry. 1 Parsons on Contracts, 344 ; Haines v. Corliss, 4 Mass. 659. 13. At common law can the wife act as agent for her hus- band ? HI She may, and such agency need not be expressed, but is frequently raised by implication. 1 Parsons on Contracts, 347 ; Robinson v. Greinold, I Salk. 119. 14. What is the age of consent for marriage ? In general males under the age of fourteen and females under the age of twelve cannot legally marry ; but by statu- tory enactment in New York State, fourteen is the age at which a female may legally assent to this contract. Hilliard's Elmts. of Law, 15 ; 21 Barb. 439 ; Code of Civ. Pro., § 1742. 14 CONTRACTS. [CHAP. 11. 15. What is the distinction between void and voidable marriages ? A void marriage is one wHch is a nullity from tile begin- ning. All children born of sucli a connection are, of course, illegitimate. A voidable marriage is one vi^liicli may be dis- solved by. the decree of a court having competent jurisdiction. The children born before the relationship is pronounced void are legitimate. Bishop, Marr. & Div. c. 4. 16. In New TorJc State how many Mnds of divorce are there ? Two : 1, partial, or a divorce a mensa et thoro ; 2, total, or a divorce a vinculo. Adultery is the only cause in this State for which a divorce a vinculo will be granted. Kew York, Laws of 1880, ch. 15, §§ 1756-67. 17. In case of a divorce on the ground of ad/wltery granted in New YorJc State, what is the law as to the right of the parties to marry again ? It is provided by statute of this State that " whenever a mariiage has been or shall be dissolved, ... no defendant convicted of adultery shaU marry again until the death of the complainant, unless the court . . . shall in that respect mod- ify such judgment, . . . upon satisfactory proof that the com- plainant has remarried, that five years have elapsed since the decree of divorce was rendered, and that the conduct of the defendant since the dissolution of said marriage has been uniformly good." 2 N. Y. R. S. as amended by Laws of 1879, p. 231, c. 164, and Laws of 1879, p. 405, c. 321. Sec. 1761 of the Code of Civil Procedure does n^t prevent a person from marrying again under the Laws of 1879. Peck V. Peck, 8 Abb. N. C. 400. 18. To whom are the custody of children awarded in suits of divorce ? . The husband has the primary right to the custody of his minor children, but such right is subservient to the opinion of the court granting the divorce. 3 Wait's Acts. & Defs. 636, CHAP. II.] CONTRACTS. 15 637 ; People v. Olmstead, 27 Barb. 9 ; CoU v. Cole, 23 Iowa, 433. 19. Define insolvency and bankruptcy. Insolvency is the commercial state of one wlio is unable t ( ' to liquidate his liabilities. Bankruptcy is the legal status of a person who has been declared by a court of competent jurisdiction to be unable to satisfy, to their full extent, the demands of his creditors. Bump's Bankruptcy, 397 ; In re Black and Secor, 1 B. R. 353. 20. WTiat is the ohject of passing bankrupt or insolvent laws ? To . enable those who are insolvent to resume or continue their business by surrendering their property to their creditors. Such a surrender ojaerates to discharge the insolvent from all existing indebtedness, so that he may start again in life un- trammelled by obligations of the past. Hilliard's Elmts. of Law, 53 ; 2 Kent's Comm. 389 ; 12 Wheaton, 230. 21. In whom, is the power vested to regulate the subject of boMkruptcy ? In Congress. The Constitution of the United States giving to that body the fall power to establish uniform laws on this subject. U. S. Const., art. viii., § 1 ; Sturgis v. Crownin- shield, 4 Wheat. 122 ; Bump's Bankruptcy, 292. 22. Does this constitutional provision debar the States themselves from passing laws of a similar nature? It does aot. A State has the same power within its own |/| limits, but no State can pass a law of this character which will impair the obligation due under an existing contract or which will conflict with any existing act of Congress. Bump's Bankruptcy, 293 ; Sturgis v. Crowninshield, 4 Wheaton, 122 ; U. S. Const., art. i., § 10 ; 1 Hilliard's Elmts. of Law, 53. 23. What is meant by composition f It is an agreement entered into between a debtor and his >^^ creditors, by which the latter agree to take a less amount 16 COWTKACTS. [chap. II. than is actually due to them, and discharge the debtor from all further liability. Bump's Bankruptcy, 668-73 ; Act of Congress, June 22d, 1874, § 17 ; 11 B. K. 21. 24. May an infant be an attorney in fact ? He may. The law regards the acts of the agent as those of his principal, and therefore in all cases where the principal makes a valid contract he may employ an infant to act for him. 1 Wait's Acts. & Defs. 214 ; Hopkins v. MollineiUE, 4 Wend. 465 ; 1 Parsons on Contracts, 39. 25, When an importer of goods claims that the Collector of the Port exacts excessive duties on the imports, what counr. can he talce to test the rightfulness of the collect^'' s act ? This is a branch of the law of duress. The common law right of action against the collector has been taken away by Congress {Arnson v. Murphy, 109 U. S. 238), under the power conferred by the Constitution, Art. I., § 8. Under the statute the importer must take the following steps in order : 1. Within ten days after " ascertainment and liquida- tion" of duties, he must serve on the collector a protest, or notice of dissatisfaction, setting forth " distinctly and specifi- cally the grounds of his objoetion." § 2931 R. S. U. S. The test of the sufficiency of the protest is to inquire whether it clearly informs the collector of the importer's claim. Davis V. Arthur, 13 Blatch. 34 ; s. c. 96 U. S. 148 ; Smith v. Schell, 27 Fed. Rep. 648 ; Cummins v. Robertson, 27 Fed. Rep. 654. It is usual to describe the goods by giving the name of the vessel on which they were imported, the date of entry, and sometimes the entry number. 2. Within thirty days after " ascertainment and liquida- tion" of duties, an appeal must be taken to the Secretary. of the Treasury. § 2931 R. S. U. S. It is common practice to attach the appeal to and serve it with the protest. 3. Suit must be brought. The Secretary of the Treasury may or may not make a decision on the appeal. If he does, suit must always be commenced against the collector within ninety days after the date of the decision. If he does not the CHAP. II. J CONTRACTS. 17 importer may bring suit at any time after ninety days from the date of appeal. Arnson v. MurpTip, 24 Fed. Rep. 355, 109 U. S. 238, 242 ; 115 U. S. 379. § 2931 R. S. U. S. A defect as to time in taking any of these steps is fatal. The action proceeds like any action of debt, except that the plaintiff must, as a matter of course, serve a biU of par- ticulars of his demand within thirty days after the appearance of the defendant. The statute should be consulted for the form of this pleading. § 3012 R. S. U. S. The United States Circuit Court has jurisdiction (but not exclusive jurisdiction) over these actions ; and suits which are not brought there originally are usually, for convenience of trial, removed to it by writ of certiorari. The bibliography of the tariff is small. There is no modem text-book, and much of the practice is un- written. Reference may be made to Heyl's Digest, which con- tains the tariffs, old and new, with the statutes relating to the subject ; to Abbot's U. S. Digest, article " Duties ;" to the Treasury Regulations, and to the Synoptical Series of Treas- ury Decisions. 26. Sow many classes of agents are there ? Two : 1, general agents ; 2, special or particular agents. 1 Parsons on Contracts, 40 ; Jaques v. Todd, 3 Wend. 83. 27. How should the agenPs authority he conferred? The most advisable way is by some writing which de- ^ scribes the duties and prescribes the limits of the authority of the agent or attorney of fact, as he is sometimes called. Such a document is known as a power of attorney, and its elements may be briefly summed up as follows : 1. Recitals of facts, where that is expedient. 2. Name of the principal. 3. The verbs of authority or appointment. 4. The name of the agent. 5. Power of substitution, if desired. 6. "Words of ratification in which the principal professes to ratify in advance all the acts of the agent. 7. The in testimonivm clause. 3 18 CONTRACTS. [OHAP. II. 8. Subscription of the principal. Dwight's Notes on Contracts, 2 Col. Jur. 83 ; 29 Car. 2, c. 3, § 3. 28. Who is a particular agent f j jj A particnlar agent is one wlio is only authorized by Ms principal to do one or more particular acts. If such an agent transcends his authority, his principal is not bound. 1 Par- sons on Contracts, 41 ; 21 Penn. St. 507 ; 10 N. H. 538. 29. What is the application of the doctrine of estoppel in the law of agency ? If one hold another out to be his agent he is liable for all I //the acts done by such agent within the apparent scope of his authority ; and it will make no difference if the principal did not, as a matter of fact, authorize the doing of a certain act ; provided he appeared to do so, he is estopped to deny his ulti- mate liability. 1 Parsons on Contracts, 40 ; Parker, C. York, 7 New York, 459 ; The Commercial Bank of Pennsyl vania v. T7ie Union Bank of New York, 11 New York, 203. 98. WJiat is a common carrier? A common carrier is one who transports persons or goods for hire, and is bound to do so for all who offer him busi- ness. 19 Wend. jST. Y. 239 ; 2 Parsons on Contracts, 163-73 ; 15 m. 472. 99. What is the responsibility of a common carrier of goods in general, and how may it he modified f A common carrier is said to be " an insurer" of the goods which he carries. An '^ insufef in the law of bail- ment is one who is liable for all loss which the bailor may sustain while goods are in the care of the bailee, which does not occur through the " act of God or the public enemy." A common carrier may formulate such rules as are reasonable and necessary to enable him to carry on his business with safety and dispatch, and if his bailors agree to contracts in which he limits his liability as an insurer they will generally be bound. In New York State a common carrier may even, by express contract, limit his liability for negligence, but this rule does not generally prevail. 3 Parsons on Contracts, 158, 233, 254 ; Bissell v. New York Central B. B. Co., 25 New York, 442 ; 29 New York, 115. 6 42 CONTRACTS. [CIIAP. II. 100. State the difference hetween the liahility of a common carrier and that of a warehouseman for loss of goods f A common carrier is liable for all loss or injury not occa- sioned by the act of God or the public enemy. A warehouse- man is only liable when the loss is occasioned by His negligence. 2 Parsons on Contracts, 139-40, 158 ; Coggs V. Bernard, 2 Lord Raymond 909 ; 13 Ala. 587 ; 1 Camp. 138. 101. State under what circumstances the relation of com- mon carrier and shipper exists so as to make the forraer liahh for loss in the following cases : (a) Wlien goods are left at a particular place to be carried ; (5) when they are given to the driver of a coach or the conductor of a car ; (c) whm, the article is usually carried about the person, as overcoat, cane, etc., and the person is being carried. (a) If goods are left at the carrier's depot or oifice witli no notice he is generally not liable as carrier ; usage or terms made public by advertisement may modify this rule, however, ■ so to render the carrier liable as such. (b) If the driver or conductor acts as the general agent of the carrier for this purpose, or appears to be such, the carrier ;[S liable, but not otherwise. (c) In such cases the carrier is not an insurer unless the passenger delivers the articles mentioned into the custody of the common carrier. 2 Parsons on Contracts, 180, 181, 198 ; 10 Met. 472 ; 9 Yerg. 480. 102. What is the legal nature of a passenger ticket and the effect of any clauses thereon ? Passenger tickets are to be considered as tokens and not as contracts, and for this reason parol evidence may be ad- mitted to contradict any statements which they may contain. Quimby v. Vanderbilt, 17 Few York, 306. 103. What are the essential elements of a sale ? ' The legal theory of a sale is that there are three elements connected with it : first, the thing to be sold ; second, the price ; third, the consent. As soon as these elements concur, the ownership passes to the buyer, but not necessarily the CHAP. II,] CONTRACTS. 43 possession. Whether the possession passes or not depends on the question whether it is a sale on credit or not ; if a sale on credit, then the purchaser has the immediate right to the possession. If not a sale for credit, it is, presumed to be a sale for cash, and the vendor has a lien for the price untU the price is paid. Even thoug^ it is a sale on credit, if the purchaser does not remove the' goods before the credit expires, the lien vdll revive. Dwight's Notes on Contracts, 2 Col. Jur. 119 ; 1 Parsons on Contracts, 519 ; 20 Wend. 285. 104. W7iat is the difference ietween a sale and an ex- change ? A sale is the transfer of goods for money, whUe an ex- change is the giving of one chattel for another. (1 Parsons on Contracts, 521 ; 1 Bouv. Law Diet. 552. 105. What is a sale in market overt and its effect f By the common law of England a sale of personal property in open market, or rriarket overt, as it is called, gives the pur- chaser a valid title to the goods sold, even though the vendor has himself no title to them. In this country the English rule does npt prevail, and one who buys obtains only the interest which his vendor rightfully has at the time of sale. 1 Par- ., sons on Contracts, 520 ; Hilliard's Elmts. o| Law, 87. 106. Does title to goods sold pass before delivery ? It may, as far as the parties to the contract are concerned ; but a sale is not, as a rule, valid as against a third person with- out notice, unless there be a delivery. 1 Parsons on Con- tracts, 529 ; 2 Kent's Comm. 522. 107. Under what^ circumstances can a purchaser recover wh'enthe seller of goods did not disclose their defects, even though there was no warranty ? When the defect was a latent one known to the seller, but not known nor liable to be discovered with reasonable care by the purchaser. 1 Parsons on Contracts, 590 ; Hilliard's Elmts. of Law, 93 ; Pickering v. Dowson, 4 Taunt. 785. 44 CONTEACTS. [CHAP. II. 108. TVhat is the effect of a sale of goods the title to which the vendor gained hy fraud ? Ordinarily sucli a vendor, having no title, could couvey none ; but if lie was the apparent owner, having, for example, a written assignment of the goods to him, he might convey a valid title to one buying in good faith and for valuable con- sideration. Moore v. National BanJc, 55 New York, 41 ; Cutts V. Guild, 57 New York, 229. 109. When is a sale of chattels 'presumed to he fraudulent as against creditors of the vendor ? Where there is a complete sale and no change of posses- sion the retention of possession by the vendor is presumed to be fraudulent ; but such presumption is one of fact only, and may be rebutted by evidence tending to show the retention of possession consistent with an honest purpose. Twyne's Case, 3 Rep. 87 ; 1 Parsons on Contracts, 529 ; Thompson V. BlancJiard, 4 Comst. 303. 110. What is the right of stoppage in transitu ? It is that right which the vendor has,. should he learn of the insolvency of the vendee, to resume possession of goods not yet paid for which have been shipped to the latter, but have not reached his possession. 1 Parsons on Contracts, 595 ; 3 East, 102 ; 15 Me. 314 ; 2 Caines (iV. Y.), 98. 111. Under what circumstances does the right of stoppage in transitu cease while the goods are in transit ? If, while the goods are in transit, the consignee holding the bill of lading indorse the same and transfer it for a valu- able consideration to another who buys in good faith, the lat- ter may compel delivery to himself, and the right of stoppage in transitu which the original vendor possessed in. the first instance will have ceased to exist. 1 Parsons on Cohti-acts, 607-09 ; Newsom v. Thornton, 6 East, 41. 112. What are " bought and sold notes'^ ? These are memoranda of sale signed by a broker, usually, but not necessarily. There are two classes of cases: one CHAP. II. J CONTRACTS. 45 where the price is fifty doUars, or ten pounds in England ; the other where it is less. The first class is governed by the statute of frauds, § 17 ; the second by the common law. First case governed by the statute of frauds ; this case is also affected by the principles of agency. That might be shown in this way : If it be assumed that the principals themselves had signed these notes, there would be but one question— that is, the statute of frauds. Next assume that an agent signs. Then there may be an additional question, whether the agent had the power to bind the principals, and, if so, whether he exercised it properly. It will be necessary to consider both these questions. There are four forms of bought and sold notes, regular and irregular, which have been before the» courts : 1. The regular form, where the broker names both thw buyer and the seller. 2. Where he describes himself as broker, but does not name the principals. 3. Where he describes himself as principal, when he is in, fact broker. 4. Where he calls himself broker, when he is in fact principal. In the first case he would not be personally liable, if he kept within his authority. In the second he would be as an undisclosed principal, unless he could prove some local usage to the contrary. The same remark may be made of the third form. But in these two last cases the other party would have an election to sue the principal if he found him out. The fourth case would be merely a false description. Dwight's -Notes on Contracts, 2 Col. Jur. 118; 1 Parsons on Con- tracts, 541. 113. State the various cases that map arise (a) when the bought and sold notes differ as between themselves and (b) when they agree and differ from the contract as properly made and contained in the broker' s booJc. {a) When the notes differ and there is a signed entry in the broker's book, the latter is to be preferred. (5) When the notes agree and differ from the book, there 46 CONTBACTS, [CHAP. II. is evidence to go to the jury of a substituted contract taking the place of that in the book. Dwight's Notes on Contracts, 2 Col. Jur. 118 ; 1 Parsons on Contracts, 543. 114. WTiat is a condition precedent in the law of con- tracts ? A condition precedent is one which must be performed before the contract can take eifect. Powell, Dev. c. 15 ; 1 Bouv. Law Diet. 313. 115. What is a condition subsequent ? Subsequent conditions are those which do not take efifect; until after the commencement of the obligation. 1 Bouv. Law Diet. 318 ; 7 GiU and J. Md. 227, 240. 116. What is a chattel mortgage f It is the conditional transfer of the title to personal prop- erty as security for a debt. If the condition, which is usually the payment of a sum of money, is not performed title vests immediately in the mortgagee. 2 Kent's Comm. 516 ; 2 Wait's Acts. & Defs. 165 ; Goddard v. Goe, 55 Me. 385. 117. What is the effect of a sale and delivery of goods with a provision that no title shall pass to the purchaser un- til the goods are paid for f No title does in fact pass until the condition is performed by the payment of the sum agreed upon. 2 Parsons on Con- tracts, 537 ; Bollard v. Burgett, 40 New York, 314. 118. Apply the foregoing principle to the case of a pur- chaser from the vendee for value and in good faith. Such a purchaser would obtain no better title than the man had from whom he bought. There is much opportunity under this theory to defraud honest purchasers. This has led to legislation requiring these transactions to be filed in tho same way as if they were chattel mortgages. If they are not filed under this rule the sale will be absolute as to 'the pur- chaser in good faith. Dwight's Notes on Contracts, 2 Col. CHAP. II.] CONTRACTS. 47 Jur. 117 ; 40 New York, 314 ; 62 New York, 1 ; Laws of New York, 1884, ch. 315 ; Laws of New York, 1885, ch. 488. 119. Define the term " sales to arrive." The meaning of this expression is, a sale of goods not at the time in the presence of the parties, but expected to reach one or both of them by some mode of transit contemplated by them, whether by ship, canal-boat, rail, express, wagon, or other mode of conveyance. Dwight's Notes on Contracts, 2 Col. Jut. 118 ; 1 Parsons on Contracts, 552-68. 120. WTiat sort of a cordract is a sale of goods to arrive f They are usually considered as executory contracts, con- ditional and not absolute. 1 Parsons oli Contracts, 662 ; Dwight's Notes on Contracts, 2 Col. Jur. 118. 121. State the general rules governing contracts for the sale of goods to arrive. [iVo^e.— Sales of goods to arrive by ship are more fre- quently discussed in the courts, and as the rules governing them may be readily applied to other cases, they are given here in reply to the above question.] Kule First. Arrival by a certain ship means the arrival of the goods and not merely of the ship. E,ule Second. All the goods named must arrive ; that is, the vendor need not deliver any until all arrive. Kule Third. The goods must arrive in the usual course of navigation, not, for example, as the sequel of a shipwreck. Kule Fourth. A sale of goods to arrive becomes uncon- ditional if the goods arrive in the regular way, even though they are not owned or controlled by the seller. He is sup- posed to take his chances of acquiring them from the owner. Rule Fifth. A statement of a particular fact in the con- tract is not conditional. For example, a statement that the goods are at sea is an absolute statement if the goods be in existence. If these words were qualified to this extent, that they were to be paid for on arrival at a specified port, such an expression might be equivalent to a sale to arrive. The same doctrine would be applied to a statement as to the date when 48 CONTKACTS. [CHAP. 11. the ship sailed from the foreign port. This would likewise be absolute. Rule Sixth. The arrival may, by clear evidence of intent, mean the arrival of a ship simply, without any goods. Though this resembles a wager, it is stiU tolerated. Rule Seventh. This subject is rather to be confined to sales, and does not extend to bailments as a rule. Higgin- son V. Gray, 14 G-ray (Mass.), 165 ; Dwight's Notes on Con- tracts, 2 Ci^l. Jur. 119 ; 1 Parsons on Contracts, 552-68. 122. What are the legal consequences of a sale of goods to arrive f If the goods do not arrive, neither party is bound ; the, vendor is not required to deliver equivalent goods, nor the vendee to accept. The second consequence is that there is an implied war ranty on the part of the seller that the goods are merchant- able. The rule of caveat emptor cannot apply, since the purchaser has no opportunity for inspection, and that is the essence of the rule. The opposite rule prevails, called the rule of caveat venditor, meaning that the seller must see that the goods comply with the contract. Dwight's Notes on Con- tracts, 2 Col. Jur. 119 ; 1 Parsons on Contracts, 564. 123. What is a warranty ? A warranty is any representation of fact made by the vendor to the vendee at the time of sale in respect to the sub- ject-matter of the contract. Such warranties are either of title or of quality, and if false may subject the vendor to a suit for damages. In every sale of chattels, if the possession be at the time in another person, and there be no covenant of warranty of title, the rule of law is, " Caveat emptor" — ^let the buyer take care ; and he buys at his peril. But if the seller has possession, he is understood to warrant the title, in con- sideration of a fair price. 1 Parsons on Contracts, 573; 2 Blk. Comm. 451 ; Hilliard's Elmts. of Law, 93. 124. WJiat is the rule of damages for breach of covenant qf warranty ? The market value of the chattel at the time of the breach CHAP. II.J CONTRACTS. 49 of warranty, and all additional damage consequential thereto. 3 Parsons on Contracts, 180, note w ; Borradaile v. Brunton, 2 J. B. Moore, 582 ; Blanchard v. Sly, 21 Wend. 342, 347, 348 ; Voorhees v. Barl, 2 Hill, 288, 292. SEC. 7. NOTES AND BILLS. 125. What is meant by the assignahility of a thing in ac- tion ? It is that legal privilege which one person has to transfer to another a right under a contract which has not already been satisfied, or, as it is generally stated, " reduced to posses- sion." 1 Parsons on Contracts, 223 ; 2 Bl. Comm. 396-97. 126. Define negotiable paper. The term " negotiable paper" is applied to that class of contracts the right of action on which is transferable by in- dorsement. 1 Parsons on Contracts, 238 ; Vincent v. HorlocJc, 1 Camp. 442 ; 12 Pick. 314. 127. State the, difference between ordinary choses in action and negotiable paper. For the sake of convenience we will call the one assign- able paper and the other negotiable paper, or more generally, assignable things in action and negotiable paper. The grand distinction is that when a cause of action is as- signable, the assignee stands in the exact position of the assignor, and is therefore obliged to submit to the defences which the debtor would have had if there had been no assign- ment. On the other hand, if the paper be negotiable, it may be so transferred before maturity, to one paying value, that the defences will be shut out. Owing to this defect of title in assignable matters, there are several steps that ought to be taken on the part of the assignee ; first, he should obtain a statement from the debtor that he has no defence. The wise course is to take this in writing. If the assignee buys on the faith of the statement, the defence vrill be shut out on the doctrine of estoppel. Sometimes it will be essential to obtain a similar statement from some person having a prior claim ; 7 50 CONTEACTS. [CHAP. II. as, for example, a man liaving a second mortgage would want to know how large the claim of the lirst mortgagee was, and would get such a statement, therefore, from him. The second step is to notify the debtor of the assignment. The record of the assignment, where that is permissible, will be no notice to the debtor, since the recording acts only operate prospectively. The third thing to be done is to put the assignment on record, where that is admissible. The main object of this is to prevent the assignor from selling more than once. 61 New York, 105 ; 1 Parsons on Contracts, 227 ; Dwight's Notes on Contracts, 2 Col. Jur. 92, 93. 128. Give a complete definition of a promissory note. A promissory note is a written promise by one person to pay to another, or his order, or bearer, a certain sum of money absolutely and at all events. 10 Wend. (N. Y.) 675 ; 7 Vern. Ch. 22 ; 20 Pick. Mass. 132 ; 4 Watts. Penn. 400. 129. Is a written promise to pay a certain sum of money upon a contingency a promissory note ? Oive reason for answer. It is not, because it is not payable absolutely and at aU events. Dwight's Notes on Blackstone, 2 Col. Jur. 67. 130. Give a complete definition of a negotiable hill of ex- change. A negotiable bill of exchange is an open letter of request, whereby one person requests another to pay to a third, or his order, or bearer, a sum of money absolutely and at aU events. Dwight's Notes on Contracts, 2 Col. Jur. 67. 131. What is a letter of credit? A letter of credit is an instrument in the form of a letter addressed by one person to another, requesting the latter to supply a third person with goods, money, or credit, the writer of the letter undertaking to reimburse the party addressed. Such a letter is frequently in substance a guaranty. It is either general or special. An example of a general letter is one addressed to any banker or banking house in Europe. A CHAP. II.] CONTRACTS. 51 special letter is one addressed to some particular person named, such as Baring Brothers. In this case no one can make ad- vances on the letter so as to hold the writer, except the person to whom it is addressed. Dwight' s Notes on Contracts, 2 Col. Jur. 129 ; Burldiead v. Brown, 5 HU1-, 634 ; 3 New York, 203 ; 93 New York, 273. 132. Is a promissory note or bill of exchange under seal negotiable ? A sealed instrument issued by a private person is not ne- gotiable ; public bonds are, such as United States and other bonds issued to raise money. The seal is immaterial. Such bonds are of two sorts, either registered or coupon. The registered bonds are described on the books of the Government or corporation, and payable to order. The others are payable to bearer, and have interest warrants, called coupons, which from time to time are cut off and collected. The question has arisen whether the coupons are negotiable. It is now settled that they are, if they are payable to order or bearer, and if the bonds to which they are attached are themselves negotiable. Dwight's Notes on Contracts, 2 Col. Jur. 104 ; Evertson V. National Baiik, 66 New York, 14. 133. What is meant by " equitable defences " in the law of negotiable paper ? Defences to negotiable paper are of two general classes, legal defences and equitable defences. By the term legal de- fences is meant such defences as make the instrument void absolutely, even in the hands of an innocent holder. They are such as want of capacity to make the instrument, as, for example, where the instrument is made by an infant or a mar- ried woman in a state where she has no capacity to make con- tracts. Another important class of cases is where the instru- ment itself is made void by statute. There are such statutes in many of our States, such as the laws against usury, betting, gaming and the like. It must be carefully noted here that the statute must not merely make the consideration void, but must be so drawn as to make the instrument void. Equitable defences, on the other hand, mean those where 52" CONTRACTS. [CHAP. II. the note or other paper is valid in point of form, executed by- one having capacity, and there is no statute making it void. Illustrations are, fraud, want of consideration, prior payment, and the like. None of these last go to the very existence of the instrument, and accordingly cannot be made available as against a holder in good faith. The elements necessary to constitute a holder in good faith under this rule are three : (1) He must acquire the title before maturity ; (2) in good faith, and (3) for a valuable consideration. D wight's Notes on Con- tracts, 2 Col. Jur. 101-02 ; 54 New York, 288 ; 20 Johnson, 637 ; 6 Hill, 93 ; 16 Peters, 15. 134. State the distinction between business paper and ac- commodation paper. The former is given for an actiud transaction, the latter is a device for supplying credit. Thus A may give his note to B with the intent that it should be used to obtain a discount at a bank. He would then be called an accommodation maker. Any party to a bill or note may assume this charac- ter, so that there may be on a bUl an accommodation acceptor, or drawer, or endorsers, and on a note an accommodation maker or endorsers. A distinction must be taken between ac- commodation paper and that which is simply without consid- 'sration, such as that of a father to his son on account of his affection for him. That would be paper withoTit considera- tion. The difference is that there is an intent to give credit in one case, not in the other. One of the most important prac- tical results is, that a person who discounts accommodation paper, though knowing its true character, can still enforce it. If, on the other hand, the accommodation party places restric- tions on the use, it cannot be enforced by one who discounts it knowing the restrictions ; although it might be collected by one who did so without knowledge. Where it is given with- out any restriction, it may be used to pay an antecedent debt of the holder, as well as to give credit by discount. If any accommodation maker or acceptor has paid, he has a remedy over against the party whom he accommodated, not on the in- strument, but on an implied contract to reimburse him. Dwight's Notes on Contracts, 2 Col. Jur. 102 ; 87New York,8. CHAP. II. j CONTRACTS. 53 135. When does commercial paper oMain'legal inception ? When it is delivered to some person as evidence of a sub- sisting debt. Marvin v. McGullum, 20 Johnson, 288 ; Keut- gen v. ParTcs, 2 Sandf . 60. 136. State tJie meaning of these expressions — an endorse- ment '' in UanTc,'" "-in full," and ^ without recourse.'" See Appendix to this section, forms, etc. An endorsement in hlanJc occurs when the payee writes his name upon the back of a note or bUl, and adds nothing thereto. An endorsement in full is one which indicates to whose order it is drawn. An endorsement without recourse is a species of qualified endorsement, and signifies that no recourse can be had to the endorser for payment. Chitty on Bills, 170 ; Parsons on Con- tracts, 238-92. 137. How may an endorser he discharged from liability f Payment by the maker, acceptor, or a prior endorser will operate as a discharge ; and it has generally been held that any contract based upon sufficient consideration, and which changes the nature of the endorser's liabUity, will effect his release. Edwards on BUls, 291-95 ; La Farge v. Heaton, 11 Barb. 159 ; Agricultural Bank v. Bishop, 6 Gray, 317. 138. What is the effect of an arrangement between the liolder and the maker extending the time of payment, upon the liability of the endorser ? If binding in law and for valuable consideration, it dis- charges the endorser from all liability. English v. Derby, 2 B. & P. 62 ; Wood v. The Bank, 9 Cowen, 194 ; Villas V. Jones, 1 Comst. 286 ; 6 Peters, 250 ; 5 How. U. S. 192. 139. Suppose that a person {A), not the payee, should en- dorse a note to induce the payee to advance money to the maker, on what theory, if any, could A be made liable ? A technical difficulty is here created owing to the fact that the first endorser— that is to say, the one to whom the note is 54 CONTRACTS. [CHAP. II. made payable, cannot sue the second endorser. This is ob- viated in some of the States by declaring the man who en- dorses to induce the payee to advance money, joint maker. In other States he is treated as a guarantor. In New York the device is resorted to of assuming that the payee might en- dorse the first time " without recourse," and then again as a third endorser ; or if he retain the note in his possession, he may, in his character of holder, sue the endorser, who cannot in turn sue him by reason of the words, " without recourse." Such being the rights of the parties, the endorsement " with- out recourse' ' is a mere form, and need not be actually made. If the note had been a non-negotiable one, such an endorser could be treated as a guarantor, since, strictly speaking, there is no such thing as endorsing a non-negotiable note. See Ap, pendix to this section, Endorsement, Form 4 ;. Dwight's Notes on C6ntra,cts, 3 Col. Jur. 93 ; 19 New York, 227 ; 47 New York, 295 ; 1 Parsons on Contracts, 243. 140. Suppose that a note is made payable at a partimiZar place, is it necessary to present it for payment at that place to hold the maker ? or to ?t,old the endorser ? The rule of law, at least in this country, is that where the holder is seeking to collect the claim of the maker of the note, or the g,cceptor of the bill, it is not necessary for Lim to set up in his complaint or to prove at the trial that he pre- sented the bill or note at the specified place. All that the party could do under such circumstances would be to set up by way of defence that he had been injured by the non- presentment, as, for example, that the bank where the money was left had failed. He would also be excused, if he had the money on hand, from paying interest from the day when the note fell due, and from the costs of the litigation ; but, on the other hand, where the object is to collect the debt from the drawer or the endorsers, it is necessary for the holder to state in his complaint, and to prove at the trial, that he made the presentment at the specified place, and took the other steps necessary to charge them. The reason of this distinction is that the obligation of the maker and acceptor is an absolute one in so many words, while that of the drawer or endorsers CHAP. II.] CONTKACTS. 65 is an implied one. They have made no express promise, and the custom of merchants now ripened into law only implies an obligation when certain preliminary steps are taken by the holder, of which this is one. Dwight's Notes on Contracts, 2 Col. Jur. 103 ; 1 Parsons on Contracts, 273-77. 141. Is the maTcer of a promissory note, usurious in its inctption, liable to an innocent holder for value? He is not. Whenever a statute declares a note void it is void in the hands of enery holder ; and as in most States usurious notes are made void by statute, even a hona-fide holder could not enforce them against the maker. 2 R. S. ]Sr. Y. 772, § 5 ; Rockwell v. Charles, 2 Hill, 499 ; Chitty on Bills, Story's ed., 71. 142. What is the rule affecting the transfer of negotiable paper to bona-Jide purchasers after maturity? Such a purchaser would take the note or bill subject to all the equitable defences which existed between the original parties to the instrument. 1 Parsons on Contracts, 255 ; Has- call V. Whitmore, 19 Me. 102 ; Brown v. Dames, 3 T. R. 80. 143. Suppose a note is obtained by fraud on the part of the payee, under what state of facts can itbe enforced against the maker by the holder ? When he has purchased it for a valuable consideration, in good faith, and before maturity. Stewart v. Small, 2 Barb. 529 ; Mckerson v. Ruger, 84 New York, 676. 144. Under what circumstances can a thief confer a good title to a negotiable note upon a person other than the owner? When that person buys the note from the thief for a valuable consideration, in good faith, and before maturity. 54 New York, 288 ; 4 Abb. Pr. N. S. 362. 145. A bank pays a foi-ged check ; who loses the money ? The bank. Morgan v. The Bank of the State of New York, 11 New York, 404 ; Coggill v. The American Ex- change Bank, 1 Comstock, 113. 56 CONTRACTS. [CHAP. II. 146. What ad-vantages, if any, has a purchaser in good faith of negotiable paper over the original payee in an ac- tion against the maker or acceptor of such paper ? All equitable defences which existed between the original parties to the note or bill may be used by them, when pay- ment is demanded ; but a purchaser in good faith takes the instrument, if it be negotiable, free from all such equities, and may recover its full value in spite of their existence. Hall V. Wilson, 16 Barb. 548 ; 1 Parsons on Contracts, 254 ; 32 Me. 587. 147. What party is primarily liable upon an accepted UU of exchange or draft ? The acceptor. 1 Parsons on Contracts, 267 ; 4 East, 72 ; Byles on BiUs, 147. 148. Give a table of cases showing when presentment of a Mil of exchange for acceptance will be necessary. tjvble showing when presentment for acceptance will be necessary: To Edward Stiles : (1) At sight pay to John Doe, or order, fifty dollars. RICHARD ROE. (2) Ten days after sight pay, etc., etc. (3) Ten days after date pay, etc., etc. (4) On demand pay, etc., etc. . (1) Presentment for acceptance, as distinguished from presentment for payment, necessary in some States, not in others. (2) Presentment for acceptance necessary, as distinguished from presentment for payment. (3 Presentment for acceptance, as distinguished from presentment for payment, not necessary though proper. (4) Presentment for acceptance not necessary. Upon the question as to whether sight drafts should be presented for acceptance, see the following cases, which sup- port that view : 3 M. & W. 473 ; 13 Gray, 597 ; 28 Missouri, 342. Cases opposed are 1 E. D. Smith, 505 ; 35 Ills. 9. The CHAP. II. J CONTEACTS. 57 matter is settled in New York by a statute of 1857, chapter 416, wliere the bill is payable in that State. It is declared that such a bill shall be due and payable on presentation with- out any days of grace being allowed. !> wight's Notes on Contracts, 2 Col. Jur. 103 ; Bh. of Ky. v. Barnum, 49 New York, 269. 149. WitTiin what time must acceptance he made after pre- sentment ? A bill on presentment for acceptance must be accepted by the drawee within twenty-four hours, or in default thereof it is liable to be treated as dishonored. Chitty on BUls, Story's ed., 138. 1 50. State what circumstances will excuse delay in making presentment of a hill of exchange for acceptance. Any delay of this nature caused by negligence in the holder or his agent is not excusable. But non-presentment is excused in aU cases where it is shown to have been impos- sible. Instances of this nature would be where the country in which the bill was due was involved in war to such an ex- tent as to interrupt its commercial relations with other nations, or where the payee, by reason of illness, became unable to per- form his business engagements. Edwards on Bills, 392 ; Scholefield v. Bayard, 3 Wend. 488. 161. When must negotiable paper he protested f As soon as the drawee refuses to accept the bill the holder should protest it for non-acceptance. Protest is a formal declaration under seal, made by a notary public, that a bill has been presented for payment and has been refused. If the bUl is thus protested the holder may immediately sue the drawer, even though the bill is not yet due. The same proceeding may be resorted to with like effect if, after accepting^ the drawee refuse to pay the bill. Protest is resorted to as a means of proving that the drawee has re- fused to accept or pay the bill of exchange. Hilliard's Elmts. of Law, 105 ; 8 Wbeaton, 333. 8 58 , CONTEACTS. [chap. II. 152. What is meant 'by acceptance supra protest f The expression supra protest means after protest, or upon protest. The theory of it is that when the regular acceptance is refused, some friend of a party to the bill may accept it if the holder consents. The object is to prevent the bill from becoming due prematurely. The person in question may select any party on the bill, in whose behalf he may accept. The technical expression is that he accepts " for the honor" of that person, as, for example, for the honor of the drawer, or any specified endorser. The following steps are the regular ones to be taken: (1) Protest for non-acceptance by the drawee ; (2) the accept- ance for honor in presence of a notary, there being a declara- tion at the same time for whose honor the acceptance is ; (3) presentment for payment when the bill falls due to the original drawee, since he may have had funds remitted to Mm in the interim ; (4) if not then paid, protest again and notice to the acceptor for honor. If he-pays he has a remedy over against the person for whose honor he accepts as well as all the prior parties on the bill. (In other words, he may be said to stand in the shoes of the party for whom he accepts.) (o) If the acceptor supra protest does not pay, it is not certain whether notice must be given to the other parties on the bUl. The general distinction between notice and protest as ap- plicable to commercial paper should now be noticed. A pro- test is an official act by a notary, and is in substance a mere declaration under his hand and seal that certain acts have been done. The object is to use it at a trial as evidence. The object of a notice, on the other hand, is to give information to a party on the instrument in order that he may take such steps as he may be advised to take in respect to other parties. By common law protest can only be resorted to in the case of foreign bills of exchange, and in these it is vital. States, however, usually permit protest in the case of inland bills and promissory notes, but it is not essential. The facts can be proved by witnesses. D wight's Notes on Contracts, 2 Col. Jur. 103-04 ; 1 Parsons on Contracts, 287. CHAP. II.] CONTRACTS. 59 APPENDIX TO SECTION 7-]SrOTES AND BILLS. I. BILLS OF EXCHANGE. 1. Form of '■'■Foreign Bills of Exchange:'' $1000. At sight pay to John Doe ^"'j or order, one thousand dol- lars ($1000), value received, and charge the same to my ac- couat. New York, Feb. 15, 1881. To RICHAKD ROE <»>. Edward Styles ^\ Boston, Mass. (a) drawer. (6) drawee. (c) payee. 2. Another Form. $1000. Thirty days after sight pay to John Doe, or order, one thousand doUars ($1000), value received, and charge the same to my account. New York, Feb. 15, 1881. ' To RICHARD ROE. Edward Styles, Boston, Mass. 3. Example of a Foreign Bill, drawn in set of three. $1000. New York, Feb. 15, 1881. Sixty days after date please pay to J. P. Benjamin, or order, one thousand dollars — this our first of exchange, second and third not paid. To M. C. KERR. Messrs. T & T. Clark, Edinburgh, Scotland. 60 CONTKACTS. [CHAP. II. 4. Check. No. New York, Feb. 15, 1881. The Importers' and Traders' National Bank of New York pay to John Doe, or order, one thousand dollars. 11000. KICHARD ROE. II. JS'OTBS. 1. Form of Promissory Note. $1000. New York, Feb. 15, 1881. One year after date I promise to pay Edward Jenkins, or order, one thousand dollars ($1000), value received, at the Bank of Commerce in the city of New York. SIMON EDWARDS 2. Form of Due Bill. $1000. New York, Feb. 15, 1881. Due John Doe, or order, the sum of one thousand dollars ($1000). value received. RICHARD ROE. CHAP. II.] CONTRACTS, 61 III. SNDOBSEMENT. 1. Blank Endorsement. SIOOO. Few York, Feb. 15, 1881. Three months after date I promise to pay James Moore, or order, one thousand dollars ($1000), value received, at Im- porters' and Traders' National Bank, in the city of New York. JOHN A. CROSS. 2. Endorsement in Full. $1000. New York, Feb. 15, 1881. Three months after date I promise to pay James Moore, or order, one thousand dollars ($1000), value received, at Im- porters' and Traders' National Bank in the city of New York. JOHN A. CROSS. 3. Endorsement without Recourse. $1000. New York, Feb. 15, 1881. Three months after date I promise to pay James Moore, or order, one thousand doUars ($1000), value received, at Im- porters' and Traders' National Bank, in the city of New York. JOHN A. CROSS. 4. Irregular Endorsement. $1000. New York, Feb. 15, 1881. Three months after date I promise to pay James Moore, or order, one thousand doUars ($1000), value received, at Im- porters' and Traders' National Bank, in the city of New York. JOHN A. CROSS. 5. ■ Waiter of Demand, Protest and Notice. $1000. New YoRk, Feb. 15, 1881. Three months after date I promise to pay James Moore, or order, one thousand dollars ($1000), value received, at Im- porters' and Traders' National Bank, in the city of New York. JOHN A. CROSS. > m o o o •tJ o o to a a a. O S3 & 5" ^d > 8 p. ,- o O O tc 3. g. p- o o o ss o en 9 1 o 5. 1 1 p. 1 4 QD O s; tr g S- Pi § 1 1 i ^ I pi I 2. p CHAP. II.] CONTRACTS. 63 1. ACGEPTANCK $1000. I p Thirty days after sight ^a^ |b John Doe, or order, one thousand dollars ($1000), val^ received, and charge the same to my account. § ^ < New York, Feb. 15, 1881. § | S K EICHARD ROE. To " Edwaed Styles, Boston, Mass. 2. QUALIFIES AGOEPTANQE. $1000. X " ^ Two months after sight ^p^ "HJo^John Doe, or order, one thousand dollars ($1000), val^ef'i^^'ed, and charge the same to my account. I. c a s New York, Feb. 15, 18^. g £ h ^ I « RICHARD ROE. Edward Sttles, Boston, Mass. 3. ACCEPTANCE SUPRA PROTEST. $1000. Two months after sight pay to John Doe, or order, one thousand dollars ($1000), value received, and charge the same to my account. New York, Feb. 15, 1881. RICHARD ROE To Edward Styles, Boston, Mass. AcffpM sitprn prritfut, in Imnnr of JJirJiriril lim- lidxluii, h'lh. 2-1. 1881 JAMEi^ EENDALJ,. 64 ' CONTRACTS. [CHAP. II. PROTESTS OF BILLS AND NOTES. (At the head of the paper attach the bill or note with a wafer or gum.) UJSriTED STATES OF AMERICA. State of \ \ss. County of ) On the day of 18 , at the request of (here name holder), I, M. N., a notary pubhc of the State of , duly commissioned and sworn, did present the original bill of exchange (or, promissory note) hereunto annexed to Y. Z., the maker (or, the drawee, or, the acceptor) at (here state the place of demand), and de- manded payment (or, acceptance), who refused to pay (or, ac- cept) the same. Whereupon I, the said notary, at the request aforesaid, did protest, and by these presents do publicly and solemnly protest, as well against the drawer and endorsers of the said bUl (or, note) as against all others, whom it doth or may concern, for exchange, re-exchange, and all costs, damages and interest already incurred, and to be hereafter incurred, for want of payment (or, acceptance) of the same. Thus done and protested in the city of afore- said, in the presence of John Doe and Richard Roe, witnesses. In testimonium tieritatis. (official seal.) (Signature of) Notary Public. NOTICE OF PROTEST OF NOTE. To Messrs. W. S. and D. H. S. : Please take notice, that a promissory note, made by S. H., treasurer, for doUars, dated 18 , payable months from date, in favor of your- selves, and endorsed by you, has been presented by me to the office of the said treasurer, at , and payment being duly demanded, was refused, whereupon, by direction of the holder, the same has been protested, and payment thereof is requested of you. (Signature of) Notary Public. CHAP. 11. J CONTRACTS. NOTICE OF PROTEST OF BILL FOR NON- AOCEPTANOE. To Mr. A. B. : Please take notice, that your bill for dol- lars, at days from sight, dated 18 , drawn on C. D., has this day been protested for non-acceptance. . (Date.) (Signature of) Notary Public. (Copy the marks of the packages in the margin here.) BILL OF LADING. Shipped in good order and well-conditioned, by (name the consignor of the goods), on board the (de- scribe vessel), called the (name vessel), whereof M. N . is master, now lying in the port of and bound for the port of (here desig- nate the merchandise), being marked and numbered as in the margin, and are to be delivered in the like order and condition at the port of (the dangers of the seas only excepted), unto (name of consignee), or to his (or their) assigns, he (or they) paying freight for the said , with primage and average accustomed. In witness whereof, the master or purser of the said vessel hath affirmed to (three) bills of lading, all of this tenor and date ; one of which being accom- plished, the others to stand void. Dated in the day of 18 (Signature of Master.) NEGOTIABLE BOND OF CORPORATION. (Title of the Corporation obligor.) No. $ This certifies that the Eailroad Com- pany has received the sum of one thousand dollars from Y. Z., and'in consideration thereof doth hqreby promise and agree to 66 CONTRACTS. [CHAP. n. pay to Mm or the bearer (or his assigns) the said sum of one thousand dollars on the day of one thousand eight hundred and ; and also interest for the same at the rate of ' per centum per annum, on the day of every and ensuing the date thereof, until said principal sum shall be paid, upon presentation of the annexed interest warrants, as they severally become payable, at the office of the company, in the city of In witness whereof, and in pursuance of a resolu- tion of the board of directors, passed on the day of , 18 , the [corporate corporate seal of the said corporation is hereto SEAL.] affixed, and these presents duly signed by the president and treasurer (or cashier) of said com- pany this day of 18 (Signature of) (Signature of) Treasurer. President. NEGOTIABLE BOND OF CORPORATION,- SECURED BY MORTGAGE. No. % Know all men by these presents, that the Company of , acknowledge themselves to be indebted to A. B., C. D., and E. P., trustees, or bearer, in the sum of dollars, lawful money of the United States of America, which sum they promise to pay at the office of the company in , on or before the day of , one thousand eight hundred and , with the interest thereon, at the rate of per centum per annum, payable semi-annually, at their office, in , on the day of , and , in each year, until said principal is paid. This bond is one of a series of bonds, amounting in all to dollars, all of like tenor and date, and numbered from one to consecutively, given by the parties of the first part to pay off and discharge certain debts and obligations incurred in the purchase of the property and operating the business o^ said company. The holder hereof CHAP. II. J CONTRACTS. 67 is entitled to the security, derived from a certain mortgage, bearing even date with said bonds, made, executed, and de- livered to A. B., C. D., and E. F., as trustees in fact, to se- cure the payment of said bonds, principal and interest ; which said mortgage is made by the obligors herein, and embraces (here designate the property, e.g., thus : the several leases of the lots and premises now held by the obligors herein, and more particularly described in said mortgage ; and also the rights, interests, and property of said company in the build- ings, sheds and other improvements thereon erected. And the mortgage also embraces the franchises, licenses, rights and privileges of running and operating their omnibus or stage route, as set forth in the obligors' articles of association, duly filed in the county clerk' s ofiice of said city, and conferred upon them by the authorities of the city of New York ; and said mortgage also embraces all their stages, omnibuses, sleighs, horses, harness, fixtures, implements, goods, wares and merchandises, and all other articles of personal property now belonging to said company), and more particularly de- scribed in said mortgage, and the schedule annexed thereto. In witness whereof, the said company have caused their corporate seal to be hereto afiixed, and these [corporate presents to be subscribed by their president, sec- SEAL.J retary, and treasurer, this day of one thousand eight hundred and 18 In presence of (Signature of witness.) (Signature and titles of) President, Secretary, and Treasurer. SEC. 8. COWSTEUCTIOIir AND INTEEPEETATION OE CONTEACTS. 153. What do the terms "lex loci contractus'' and "lex fori''' mean? As a general rule a contract must be construed according to the lex loci contractus^ which, translated, signifies the law of the place where the contract was made. The term lex fori means the law of the court before whom the case is to be tried. The lex loci contractus decides as to 68 COTSTTKACTS. [CHAP, II. the nature, validity, and construction of the contract, wMle the remedy and process are governed by the lex fori. 1 Hil- iiard's Elmts. of Law, 85 ; 4 Conn. 47 ; 14 Pet. 67 ; 2 Kent's Comm., Lect. 39 ; 22 Barb. IST. Y. 118. 154. Wliich governs the construction of a will of personal "property, the lex loci contractus, the lex rei sitcB, the lex do- micilii, or the lex fori ? The lex domicilii. Lynes v. Townsend, 33 N. Y. 561 ; Story's Conflict of Laws, § 445 ; Chamberlain y. Chamberlain, 43 New York, 432, 433. 155. What is the doctrine of cy pres ? This doctrine is applied in the construction of wUls, and is to the effect that if the actual directions of the testator, as contained in the will, cannot be literally carried out, the words shall be so construed as to give effect to his general intention. 1 Spence, Eq. Jur. 532 ; Story's Eq. Jur. 1169, et seq.; 4 Yes. Ch. 14. SEC. 9. TESTAMENTS. 1 56. What is the test of capacity to be applied in all cases where the testator'' s ability to make a valid will is put in issue ? The general rule is that the testator must be able to sum- mon up, without prompting, the subject-matter which he wishes to dispose of, and the persons to whom he wishes to give it, and to be able to hold these two in his mind long enough to come to a rational conclusion ; and if this is not possible for him, the wUl is void for want of capacity. D wight's Notes on Blackstone, 2 Col. Jur. 67 ; Delafield v. Parish, 25 New York, 9. • 157. Who is an executor f An executor is one to whom another commits the execu- tion of his last will and testament. 2 Blackstone's Comm. 503 ; 3 Atk. Ch. 301. CHAP. II.] CONTEACTS. 69 158. Who is an administrator ? An administrator is one who is appointed by a competent judicial authority to administer the esbate of an intestate. Hilliard's Elmts. of Law, 61 ; 2 New York R. S. 74 ; 2 Blks. Comm. 504. 159. If an executor should execute an ordinary promis- sory note for money borrowed for the estate, and sign A. B., exeeutor, etc. , would he he personally liable ? If an executor makes such a note he is liable unless he expressly limits his promise to pay by the words, " out of the assets of my testator," or, "if the assets be sufficient,"' or in some equivalent way ; but a note or bill with such a qualifica- tion would not be negotiable but only assignable, because of its conditional nature. 1 Parsons on Contracts, 128 ; Forster V. Fuller, 6 Mass. 58. 160. What is a legacy ? The word legacy is commonly appropriated to a particular clause in a wUl disposing of personal property. D wight's Notes on Blackstone, 2 Col. Jur. 67. 161. State the different kinds of legacies, and define each. Legacies are absolute, additional, alternative, conditional, demonstrative, general, specific, indefinite, modal, pecuniary, and residuary. An absolute legacy is one given unconditionally, to imme- diately vest. An additional legacy is one given to one already a legatee. A demonstrative legacy is one of a certain sum of money to be paid out of a particular fund. A general legacy is one so given as not to amount to a be- quest of a particular thing, or distinguishable from others of thfe same kind. A specific legacy is a disposition of a particular part of the testator's personal estate, distinguishable' from all others of the same kind. An indefinite legacy is a bequest of personal property not 70 CONTRACTS. [chap. Ii. enumerated or ascertained as to number or quantity, as a gift of ' ' all my silver now at Thornton Hall. ' ' A, modal is a bequest accompanied bv directions as to the way in which it is to be bestowed. A pecuniary legacy is one of money. They are, as a rule, general, but may at times be special, as the bequest of "my money contained in the Chemical Bank." A residuary legacy is a bequest of all one's personal prop- erty not otherwise disposed of by testamentary provision. 2 Bouv. Law Diet. 20, 21 ; 1 Eoper, Leg., 3 Ed. 645 ; Lowndes, Leg. 10, 151 ; 1 Sharswood, Blks. Comm. 442. 162. What is meant hy ^'■ademption,'''' "^ abatement,'''' and 11; " lapse ' ' of legacies ? Ademption. This occurs when a specific legacy is revoked by the sale or change of form of the thing bequeathed ; but the change of the form of a security is not an ademption. Abatement. In all cases where the assets are insufficient to pay the debts and specific legacies, the latter must suffer a reduction which will be sufficient to pay all the debts in fuU. This reduction of the legacies is called abatement. Lapse. A legacy is said to lapse when the legatee dies before the time arrives for its payment. 1 Wms. Ex. 1036 ; 2 Brown Oh. 108 ; 2 Bouv. Law Diet. 23. 163. State the difference between a gift inter vivos and one causa mortis. A gift inter vivos is the act whereby one man renounces ' and another acquires, without price or consideration, the title to certain personal property. A gift causa mortis is one made by a person in his last sickness and in contemplation and expectation of death. Delivery is essential to the validity of a gift, and a gift causa mortis is, as a rule, void if the donor recover. Hil- liard's Elmta Law, 70 ; 1 Parsons on Contracts, 234-36. CHAP. II. J CONTRACTS. 71 SEC. 10. DEFENCES TO A CONTRACT. 164. What is meant by ^'■performance " as applied to a plaintiff in an action on a contract ? It is the act of carrying out the terms of the contract which devolve upon one party or the other. 2 Parsons on Con- tracts, 636-75 ; 2 Bouv. Law Diet. 823. 165. 'State the rules concerning performance considered as a defence' : (a) whether literal or substantial; (b) the mean- ing of the term election ; (c) refusal to perform before the day arrives. {a) The performance should be substantially what the contract calls for ; a mere literal accuracy might wholly fail to satisfy the true purpose of the contract, and if this were the case, it could not be accepted as sufficient. (&) This occurs when a debtor is obliged, in an alternative obligation, to do one of two things, as to deliver five tons of coal or to pay fifty dollars ; he has the choice to do one or the other until the time of payment ; he may not, however, in such a case, pay a part of each, and thus claim to have satis- fied the terms of the contract. (c) This renders one immediately liable for breach of the contract. 7 Wait's Acts. & Defs. 425 ; 12 Ind. 278 ; 2 Parsons on Contracts, 636. 166. 'iVhat is the rule as to a plaintiff^ s right to recover on proof of part performance of an entire contract ? If the contract be strictly entire, the plaintiff must per- form in full before he can recover. This question may arise either in contracts of service, or building contracts, or con- tracts of sale. First, as to contracts of service and building contracts. In this class of cases there is much unanimity of opinion where the servant hires himself out for a fixed period. He must perform in fuU, as long as the other party is not in fault, unless disabled by sicJtness or prevented by death. So, if a person be employed to build a house, he must perform in full, though trifling deficiencies will not be regarded. If, 72 CONTRACTS. [chap. II, however, full performance is not insisted upon by the other party, it may be regarded as waived ; in which case there could be a recovery for a partial performance. Second, the sale of goods for a single price, such as 500 bushels of wheat for $.'500. The question will arise, Should the vendor deliver 250 bushels and fail without excuse to de- liver more, can he recover, assuming that the vendee retains the goods delivered, and insists on full performance ? On this point there is great conflict of opinion. The English courts hold that there may be a recovery on the quantum meruit. The same principle is recognized in Massachusetts. Another view is adopted in New York, and full performance . is required, the English case being expressly repudiated. The same principle is also followed in Ohio and other States. This rule, however, is not applied by the New York courts where a purchaser pays for the goods in advance, as, for ex- ample, if in that case he had received a partial benefit he would not be allowed to recover back all the money that he had paid, for the reason that the action to recover back money is an equitable action, and the court no longer proceeds on the technical doctrine of the entirety of the contract, but now upon equitable principles. Smith v. Brady, 17 N. Y. 173 ; 50 N. Y. 445 ; Avery v. Wilson, 81 K. Y. 341 ; 9 B. & C. 386 ; 18 Pick. 555 ; 18 Wend. 187 ; 85 N. Y. 407 ; 16 Ohio, 238 ; 33 N. Y. 458 ; 80 IS". Y. 312. 167. How must payment of a debt regularly he made f By the debtor or his duly authorized agent to the creditor or his duly authorized agent. 1 Parsons on Contracts, 614-35 ; 16 Ves. 198 ; 1 Wash. (Va.) 77. 168. State the rule as to payment hy prorAissory note. It is similar to that governing payment by check. It is a good payment if accepted as such, and binds the parties ; but if the note is dishonored when presented for payment, the creditor's original claim at once revives, and he may sue upon the old debt. 2 Parsons on Contracts, 624 ; 5 Cush. 158. 169. State the rule as to payment by check. Payment by check operates as a satisfaction of the debt CHAP. II.J CONTRACTS. 73 if it is accepted, but such payment is conditional only, and if the check when presented is dishonored, the old debt is imme- diately revived. 2 Parsons on Contracts, 623 ; Croiriwell V. Lovett, 1 Hall, 56. 170. WTiat is the effect of tender f It prevents interest from accruing thereafter, and gives the debtor costs if he is subsequently sued by the creditor for the debt. It is scarcely necessary to add that tender, while it ad- mits the contract, does not in any way bar the debt. 2 Par- sons on Contracts, 636-46 ; Stafford v. ClarTc, 2 Bing. 377. 171. What is meant hy " legal tende'f as applied to the payment of debts ? An offer to pay his debt made by the debtor to operate as a valid tender should be of the exact sum in the ' ' legal ten- der' ' of the county in which the creditor resides. By the term legal tender is meant that currency which has been declared by the law of the land to be suitable for the purposes of tender in the payment of debts. 2 Bouv. Law Diet. 24 ; 8 Ohio, 169 ; 2 Parsons on Contracts, 622. 172. What is accord and satisfaction ? Accord and satisfaction is the mode of extinguishing a contract obligation by the offer and acceptance of something different from the original agreement. A smaller sum cannot be a satisfaction of a larger, unless delivered at an earlier day or at another place than the contract specifies. Hill. Elmts. Law, 84 ; 2 Parsons on Contracts, 681. 173. What is a novation ? A transaction whereby a debtor is discharged from his liability to his original creditor by contracting a new obliga- tion in favor of a new creditor, by the order of his original creditor. 1 Parsons on Contracts, 217 ; 7 N., H. 397. 174. What is the difference between novation and assign- ment ? The difference between novation and assignment is, that 10 74 OOWTKACTS. [chap. II. in assignment we sue on the old debt, while in novation we extinguish the old debt and create a new one. Dwight's Notes on Contracts, 2 Col. Jur. 92 ; 1 Parsons on Contracts, 217, 223. 176. W7iat is contributory negligence f It is that degree of negligence without which an injury could not have occurred. 2 Wait's Acts. & Defs. 7 ; Robin- son V. Dunmore, 2 Bos. & P. 417. 176. Assuming the lorongdoer to have himself been guilty of negligence, whoi effect does contributory negligence ham upon the injured party^ s right to recover ? He cannot recover. 4 Wait's Acts. & Defs. 718. 177. What is an arbitration ? The review and determination of a contention between different parties by one or more unofficial persons chosen by the disputants, and called arbitrators. 3 Shars. Blks. 16 ; 1 Bouv. Law. Diet. 137. 178. What is an award ? It is the final decision of the arbitrator or arbitrators. 3 Shars. Blks. 16 ; 2 Parsons on Contracts, 689. 179. State the rules affecting the validity of an award. 1. It must conform to the terms of the submission. 2. It must be certain and definite. 3. It must be possible — that is, it must not require that to be done which cannot be done. 4. It must be reasonable. 5. It must be final and conclusive. 2 Parsons on Con- tracts, 688-97 ; 2 Barb. Ch. 430. 180. If an award is assumed to be erroneous, has the de- feated party any relief f If so, what? Yes. In New York an appeal may be taken from a judg- ment entered upon an award in the same manner as from a CHAP. II.J CONTRACTS. 75 judgment in an action. IS". Y. Code Civ. Pro., S 2381 • 6 Hill 303. ' ' 181. What is the rule in case of a breach of the agreement to arbitrate ? _ It is a general rule that, if there be an existing cause of action which the respective parties submit to arbitrators for decision, and then there is a refusal to arbitrate vpithout any cause, such an act does not deprive the court of its jurisdic- tion, and the only remedy of the opposite party is to sue for damages for a breach of the agreement to arbitrate. If, on the other hand, it is made a part of the contract itself that, in case of a question arising upon it, there shall be an arbitra- tion, the failure to arbitrate may enter into the right of action itself, so as to be a condition precedent to recovery. 3 Am. Law Eev. 249 ; Dwight's Notes on Contracts, 2 Col. Jur. 173 ; 5 House Lds. Cas. 811 ; 50 IST. Y. 250. 182. Has the matter of arbitration ever been made the sub- ject of statutory enactment ? Yes. There is important legislation on the subject of arbitration in the State of N'ew York in the Code of Civil Pro- cedure, from §§2365 to 2386. This chapter provides for the submission of such controversies in writing, and allows the parties to insert a clause in the submission that the successful party may enter up a judgment in the proper court on- the award. Then the judgment may be entered up accordingly. In the absence of such a clause there would be no mode of executing an award for the payment of money, if the unsuc- cessful party refuse to pay, except by an action in court to recover the money. This is called in the common law an action of debt on the award. This is in practice a highly inconvenient result, as it makes two proceedings necessary. The object of these sections of the Code is to avoid this diffi- culty. The Code also provides modes of setting aside the judgment based upon the award for fraud, and for correct- ing mistakes and the like. There is, however, no appeal in the proper sense of the word. This statute does not do away with common law submissions ; so that the practical result is 76 CONTBACTS. [CHAP. II. that there may be arbitration either at common law, or arbi- tration under the statute. Dwight's !N"otes on Contracts, 2 Col. Jur. 173-74. 183. What is an estoppel ? "An estoppel," says Parsons, "is an admission or a declaration which the law does not permit him who., has made it to deny or disprove for his own benefit, and to the injury of another." 2 Parsons on Contracts, 787 ; Co. Litt. 352 a. 184. What is an estoppel by record ? A Judgment or decree of a court having competent juris- diction. 2 Parsons on Contracts, 788 ; Robinson v. Jones, 8 Mass. 536. 185. What is an estoppel in pais ? It is an estoppel caused by a person's previous acts. Pour elements must be present and concur to constitute an estoppel in pais. First, there must have been a representation either actire or passive. Second, the representation must have been made with intention, or reasonable anticipation, that it be acted upon. Third, it must have been acted upon. Fourth, it must appear that harm will come to the person acting upon the representation, if it be allowed to go for nothing. 2 Parsons on Contracts, 793. 186. When was the Statute of Frauds passed, and what are its provisions ? The Statute of Frauds was passed in the twenty-ninth year of the reign of Charles II. Its principal provisions, as far as our own law is con- cerned at least, are as follows : That no action shall be brought, (1) against an executor or administrator, to charge him person- ally upon his promise ; (2) upon a promise to answer for the debt, default, or miscarriage of another ; (3) upon an agree- ment made in consideration of marriage, (4) or not to be per- formed within one year ; (5) for the sale of goods of the value of fifty dollars, or of (6) any interest in lands, unless CHAP. II.] CONTRACTS, 77 STicli agreements be written and signed by the party to be charged or Ms lawful agent, or, in the sale of goods, there be part payment or delivery. These sections of, the statute have been substantially re-enacted in nearly all the States of the Union. 1 Hilliard's Elmts. of Law, 79 ; 3 Parsons on . Con- tracts, 3, 19. 187. Oive examples of contracts which are illegal at com- mon law. (1) Contracts in restraint of trade ; (2) contracts which tend to corrupt legislation ; (3) Wagering contracts ; contracts made upon Sunday ; (4) Maintenance and Champerty. 2 Par- sons on Contracts, 746-67. 188. Define champerty. Champerty is a contract by the terms of which a stranger agrees to supply money to a litigant, to enable him to carry on a suit, provided the latter, if he is successful, will share the land or money recovered. 2 Parsons on Contracts, 766 ; Satterlee v. Frazier, 2 Sandf. 141. 189 What is maintenance f Maintenance is the intermeddling of a stranger in a suit for the purpose of stirring up strife and litigation. It differs from champerty in that the encouragement given by the maintainor is not founded upon any pecuniary consideration. 1 Parsons on Contracts, 766 ; 2 Bishop, Crim. Law, § 111 ; 4 Term. Eepts. 340 ; 6 Bingh. 299. 190. Define usury. T.t is the reservation of a higher rate of interest than that prescribed by law. This, in some States, is an indictable offence, besides rendering the contract void, or subjecting the lender to a restitution of the^ interest, together with an addi- tional and often severe penalty. Hilliard's Elmts. of Law, 100 ; 1 Iowa, 252 ; 7 Pet. 109 ; 22 Barb. 118 ; 1 Meigs, Tenn. 585 ; 3 Parsons on Contracts, 106-08. 191. Can a corporation plead usury? N"o corporation (and this term includes all associations 78 GONTEACTS. [CHAP. II. and joint-stock companies having any of the powers and privileges of a corporation) is allowed in Xew York State to plead usury as a defence ; but such is not the prevailing law in many of the other States. N. Y. L. of 1850, p. 334, c. 172 ; 35 Is"ew York, 65 ; CJiafln v. Lincoln Savings Bank, 7 Heisk. (Tenn.), 499 ; 7 Wait's Acts. & Defs. 620. 192. What are the only usurious contracts excepted from, the usury statutes of New York State ? Bottomry and respondentia bonds and contracts. 2 Eev. Stat, of New York, p. 772, § 5. 193. State the three principal exceptions to the general rule established by the usury law of New York State. The general rule in New York is that the transgression of 'dsury laws makes a contract utterly void. The further state- ment is that the acceptance of usurious interest is criminal, the crime being of an inferior grade, called a misdemeanor. The following exceptions should be noted : First, corporations considered as debtors cannot plead usury. The term corporation would include all joint-stock associations having the powers and privileges of corporations not possessed by individuals or partnerships. The statute also includes endorsers and sureties on the obligations of cor- porations. Second, the usury law does not apply to demand loans of not less than $5000 on certain specified collaterals, to wit, warehouse receipts, bills of lading, certificates of stock and negotiable instruments. Third, there is also a case applicable throughout the country, in which a corporation considered as a lender is not subject to State penalties for taking usury. This is the case of the national banks, not being governed by State laws. The policy of the United States legislation is to forfeit the interest instead of the principal. A New York statute places State^ banks, organized under the law of April 18th, 1838, on the same footing as national banks. N. Y. Penal Code, § 278 ; N. Y. L. 1880, ch. 172, § 1 ; 33 New York, 665 ; N. Y. L. 1882, ch. 237 ; Farmers' National Bank v. Deering, 91 U. S. CHAP. II.] C0NTBACT8. 79 29 ; N.. Y. L. 1870, ch. 163 ; 15 Abb. Pr. N. S. 276 ; 2 Col. Jur. 199. 194. May a State pass a law impairing the obligation of a contract ? Why not ? It may not. Because of United States constitutional provision forbidding any State to pass a law impairing the obligation of a contract. U. S. Const., art. i., § 10 ; 14 New- York, 22 ; 19 New York, 68 ; 4 Gray, 474 ; 12 Wheat. 213. 195. What is a lien ? Bouvier defines a lien to be "a hold or claim which one person has upon the property of another as a security for some debt or charge." 2 Bouv. Law Diet. 47 ; 2 Camp. 579. SEC. 11. DAMAGES. 196. What are liquidated damages ? Damages whose amount is already determined or may be readily ascertained. Hilliard's Elmts. of Law, 72 ; 3 Parsons on Contracts, 156-63. 197. What are compensatory damages ? Those allowed as a recompense for the injury actually sustained. 3 Parsons on Contracts, 155 ; Co. Litt. 257 a ; 1 Bouv. Law Diet. 420. 198. When are exemplary damages allowed ? When the damage sustained is caused by the actual malice, deliberate violence, or oppression of the person com- mitting the injury. 3 Parsons on Contracts, 169-77 ; 3 Am. Jurist, 287. 199. On what principles of law is the right to collect in- terest based f Interest is collectable in law on two grounds : first, on contract ; second, by way of damages. In the first case, be- fore the debt is due, it is necessary to specify interest. 80 CONTEACTS. [CHAP.' 11. After the debt is due, a man is under a legal obligation to pay at once. If be does not he is liable to interest by way of damages. Dwight's Notes on Contracts, 2 Col. Jur. 198. 200. What is the effect of a statute changing the legal rate of interest ? Here the rule is that the old rate of interest prevails, at least where the contract provides that that shall continue until the debt is paid. However, as soon as judgment is entered, the new statutory rate will prevail, since the contract will be merged in the judgment. If, however, a balance of account had commenced to run before the statute altering the rate oi interest was passed, and then continued to run afterward, th*« rule is to give the old rate up to the time of the statutorj- change, and the new rate afterward. In the case of interest claimed as growing out of. a wrongful act, such as negligence, it does not begin to run until verdict for the plaintiff ; for noi until then is the amount ascertained. The result is that if th« wrongful act was committed before the change, and the ver diet was obtained afterward, the rate of interest follows that which prevails at the time of the verdict. 84 New York, 471 ; 90 New York, 644 ; 86 New York, 40 ; 89 New York, 412 ; Dwight's Notes on Contracts, 2 Col. Jur. 198. 201. Suppose the debtor and creditor contract when the money is advanced that the interest to be paid shxtll be less than the legal rate, and the debt is not paid when due, what rate governs thereafter ? The prevailing opinion is that the contract rate governs tintn maturity, and then after that the legal rate. If, how- ever, the contract should provide that the rate fixed by it should continue until the debt was paid, that rate would pre- vail until the end by force of these express words. 22 Wal- lace, 170 ; 78 New York, 608 ; 112 Mass. 63 ; 10 R. I. 299. CHAP. III.] BEAL PROPERTY. SI CHAPTER III, LAW OP EEAL PROPERTY. SEC. 1. CLASSIFICATION AND NATURE OF REAL PROPERTY. 1. Of what does real property consist f Lands, tenements, and hereditaments. Land includes the earth's surface, dnd all things over and under it. A tenement is such an interest as might be held under the feudal doctrine of tenure. It includes not only the land, but also certain rights annexed thereto, such as franchises and rents. The term hereditament is the most generic of all three, and includes all interests in real property, both corporeal and in- corporeal. Bouvier's Law Diet., vol. ii., p. 413 ; Washburn on Real Prop., voL i., p. 21. 2. Classify estates in respect to quantity of interest. (a) Estates of freehold. (5) Estates less than freehold. Dwight's Classification of Estates, 1 Col. Jur. 5. 3. Classify estates as to number of owners. Estates are held in severalty, joint tenancy, coparcenary, and common. 1 Washburn on Real Prop. 404. 4. Classify estates in respect to time of enjoyment. Estates are either in possession or expectancy. 2 Black- stone's Comm. 162. 5. What is a fixture? A fixture is some article which is m its nature personal property, but about which a doubt may arise as to whether it belongs to the realty or not. 1 Washburn on Real Prop., p. 7. 6. What is meant ty an easement, and how may it le created f An easement is a privilege without profit which the owner 11 82 REAL PKOPERTY. [CHAP. III. of one piece of real property has in reference to the real prop- erty of another. The owner of this privilege is called the dominant tenant, and he over whose property the privilege is exercised, the servient tenant. Chase's Blk. 231. 7. Is an easement corporeal or incorporeal ? It is an incorporeal hereditament. Chase's Blk. 231. 8. Give examples of easements. A right of way, or passage of water through another's land. Hewlins v. SMpparn, 5 B. and C. 221 ; Washburn on Eeal Prop., vol. i., p. 83. SEC. 2. THE FETTDAL SYSTEM, ETC, 9. What was the feudal system f It was that system by which the title to nearly all the real property in England was held subsequent to the Norman Conquest and prior to the reign of Charles the Second. The manner in which the land was held under tliis system may be briefly outlined as follows : The king was supposed to own all the real property within the realm. The enjoyment of this royal prerogative he, however, granted to others, who, in return for the use of the property allotted to them, agreed to render certain services. These tenures were at first held for a brief and uncertain time, but subsequently became hereditary, the lord or owner of the feud or fee, as it was called, acknowledging the heir of the vassal, or tenant, to be the lawful successor to the rights and duties of his father. The possession of such an estate was called seizin. The feudal investiture was called livery of seizin. By sub-infeudation, which consisted in the feoffee, or tenant, granting in turn an estate out of his own interest, many of the feudal services which were owed to the original lord, or feoffor, were evaded, and this evil led to the passage of the famous statute of quia emptor es (18 Ed. i. , c. 1), which allowed the vassal to alien his interest in the land, but pro- vided that the sub-tenant should hold of the first lord, and CHAP. III. J KEAL PROPERTY. 83 perform all the duties which the original vassal had under- taken. Since the aboKtion of the feudal system, lands have been held allodially, each ov^ner holding his own property absolutely. Washburn on Real Prop., vol. i., p. 24. 10. WTiat was socage? This term was applied to such feudal services as were not of a military character. Bouvier's Law Diet., vol. ii., p. 528. SEC. 3. EEEEHOLDS OF INHERITANCE. 11. What is a fee simple? It is the largest possible estate in land. 1 Washburn on Eeal Prop. 51 ; Littleton, § 1. 12. What is necessary to constitute a fee simple absolute? At common law, and in many of the States at the present time, the instrument granting such an estate must contain the word " heirs ;" but in New York, since the adoption of the Revised Statutes, this is no longer necessary. It is provided, however, that every grant in fee or of a freehold estate shall be by deed subscribed and sealed by the grantor or his lavirful agent ; and this is the law generally throughout the United States. 1 R. S. N. Y. 738, § 137 ; Chasers Blackstone, p. 445. 13. What kind of estates are embraced, within the designa-^ tion of estates of freehold as used in the statutes of New York f Estates of freehold may be classified as follows I. Freehold of inheritance. {a) Fee simple. (p) Fee qualified. 1. On condition. 2. On limitation. 3. On conditional limitation. 84 BEAL PKOPEETT. [CHAP. III. II. Freehold not of inheritance or life estates. (a) Cons^entional. 1. Estate for one's own life. 2. Estate for the life of another. 3. Estates for an uncertain period, that may possibly last during life. (b) Legal. 1. Curtesy. 3. Dower. 3. Jointure. 1 R. S. N, Y. 722. 14. W7iat is the difference ietween a condition precedent and a condition subsequent ? Precedent conditions are those which are to be performed before the estate vests. 9 Cush. Mass. 95. Subsequent conditions are those whose effect is not pro- duced until after the vesting of the estate. Crabb on Real Prop., § 2152., ' 15. What is an estate tail? An inheritable estate, which will descend to certain classes of heirs. The words "heirs of the body" are the proper words of creation. 1 Washburn on Real Prop. 74. 16. What was the statute de donis ? It was that statute that converted fees conditional at common law into fees tail. 1 Washburn on Real Prop. 83. 17. What is the difference between a remainder and a reversion ? A remainder is the remnant of an estate in lands or tene- ments expectant on a particular estate created together with the same at one time. A reversion, on the other hand, is the residue of an estate left in the grantor, to commence in possession after the determina- tion of some particular estate granted out by him ; the return <)f land to the grantor and his heirs after the grant is over. CHAP. III. J KEAL PROPERTY. 85 The reversion arises by operation of law, and not by deed or will, and it is a vested interest or estate ; and in this it differs from a remainder, which can never be limited unless by either deed or devise. Bouvier's Law Diet., vol. ii., 476 ; Coke Litt. 142 ; 1 Washbnrn on Real Prop. 37, 63, 18. What is tJie difference between a vested and a contin- gent remainder ? A contingent remainder is one which is limited to take effect on an event or condition which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding particular estate. A vested remainder is one by which a present interest passes to the party, though to be enjoyed in, the future, and by which the estate is invariably fixed to remain to a determinate per- son after the particular estate has been spent. 1 Yates, Penn. 840 ; ,2 Johns. N. Y. 288 ; Bouvier's Law Diet., vol. ii., 435. 19. Are there any, and, if any, what lirnitations upon the period during which the absolute power of alienation of lands within the State of New York may he suspended ? There are. The Revised Statutes provide that the abso- lute power of alienation shall not be suspended by any limi- tation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estatd'. To this rule there is, however, an ex- ception, which is that a contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty -one years, or upon any other con- tingency by which the estate of such persons may be deter- mined before they attain their full age. 1 R. S. II^. Y. 723, §§ 15, 16 ; 31 N. Y. 19 ; 42 Barb. 166. 20. When do valid grants of freehold estates take effect in New York? Upon the delivery of the deed granting the estate. 1 R. S. N. Y. 738, § 138 ; 6 Barb. 103. 86 REAL PEOPEKTT. [CHAP. III. 21. Are there any, and, if any, what exceptions to the rule that no more estate or interest shall he construed to pass by any grant or conveyance than the grantor himself possesses at the delivery of the deed ? There are. , A certain class of estoppels by deed form notable exceptions to the rule mentioned in the question. Thus, if, for a valuable consideration, A makes a deed to B wherein he assumes to convey a specific parcel of land, he thereby asserts that he is the owner of it, and that a title to the same thereby passes to B ; and yet, if he has no title, noth- ing, in fact passes by the deed. But if he shall, soon after this, become the owner of this land, and the purchaser insists upon claiming it, it would not be open to him to deny such claim after having thus taken the grantee's money, and solemnly declared that he was and should be the owner of the land. Clark v. Baker, 14 Cal. 629. 22. What is a conditional fee ? A conditional fee is one that is either to commence or determine on some condition. 10 Coke, 95 ; Bouvier's Law Diet., vol. i., 577. SEC. 4. PEEEHOLDS NOT OF INHEEITAJSTCE. 23. What is dower ? Dower is a legal freehold estate not of inheritance, which the wife takes upon the death of her husband, and which entitles her to a life estate in a certain portion of the real property of which he was seized during coverture.- She exer- cises this right in regard to one third of all such real estate. The requisites of dower are : I. Lawful marriage. II. Beneficial seizin, either in law or fact, by the husband during coverture of an immediate estate of inheritance in sev- eralty or in common that any issue they might have had would be capable of inheriting. III. Death of the husband, the wife surviving. Hatfield V. Sneeden, 54 N. Y. 280 ; Washburn on Real Prop., vol. L, p. 169. CHAP. Ill] EEAL PROPERTY, 87 24. Give the rule as to dower in mortgaged lands and the various instances in which the question can arise. When tlie husband's estate has been mortgaged, the wife will take dower without regard to the mortgage, when the mortgage was given after marriage, without her relinquish- ment of dower being evidenced by her becoming a party to the instrument. But her right of dower will be subject to the mortgage : (1) when the mortgage was given before marriage ; (2) M'hen it was given after marriage, for the purchase money of the premises ; (3) when it was given after marriage, and she united in the conveyance. If, in these three la'st cases, the land was sold f©r the payment of the mortgage, she would only have dower in the surplus money, if any, which remained. Chase's Blk. 315 ; Coles v. Coles, 15 Johnson 319 ; Titum V. Neilson, 5 Johns. Ch. 452 ; Swaine v. Perrine, 5 Johns. Ch. 482. But these rules may vary in the different States, and are subject to modification by statute. 25. Specify some of the ways in which a right of dower may he barred, ? Dower may be barred by the wife joining in a conveyance with her husband ; by the divorce of the wife for adultery ; by eminent domain ; by the provision of the husband's will giving her an estate in lieu of dower, which she accepts ; by judicial sale ; by jointure. Washburn on Real Prop., vol. i., p. 195. 26. What is tenancy by the curtesy, and what things are required for the creation of such an estate? Curtesy is a legal freehold estate not of inheritance, which the husband takes on the death of his wife, and which entitles him to a life estate in the real property of which his wife was seized in fact during coverture. Hatfield v. Sneeden, 54 N. Y. 280 ; Washburn on Real Prop., vol. i., 128. The requisites of such an estate are : 1. Legal marriage ; 2. Actual seizin by the wife of an estate of inheritance ; 3. Birth of issue alive ; 4. Death of the wife. Washburn on Real Prop., vol. i., p. 128. 88 EEAL PROPERTY. [CHAP. III. 27. What right, if any, has a widower with children in Ms deceased wife's lands, which she conveys by deed, in which he had not joined prior to her decease f No right. The husband may have curtesy in the separate estate of his wife undisposed of by her will or deed at the date of her death, but he has no claim or interest in such property if she has disposed of it prior to her decease. Hatfield v. Sneeden, 54 IST. Y. 280. 28. What is an estate of jointure, and how may it he created ? It is an estate settled upon the wife in li^ of dower. To make such an estate valid, it must be accepted by the wife ; it must be an estate of freehold, and must vest immediately upon the death of the husband. 2 Blk. Comm. 137 ; 1 Wash. 313. , 29. What is loaste ? •It is said to be any act done by the life tenant which alters the nature of the inheritance, and tends to prejudice the rights of the heir or reversioner. 2 Bouvier's Law Diet. 654 ; 1 Page Ch. 673 ; 10 N". Y. 117. 30. What is a life tenant s liahilityfor waste ? He is liable to the remainder-man or reversioner to the extent of the damage which they may sustain. Peterson, v. ClarTc, 15 Johns. 205. 31. State the different Jcinds of waste. Waste is either voluntary or permissive. Voluntary waste consists in the doing of some affirmative act whereby the nature of the inheritance is altered. Permissive waste occurs where one neglects to perform some act necessary to the preservation of the freehold. Co. Litt. 53 ; 1 Ves. Sr. 462 ; 1 Wash. 107. 32. Who had remedies for waste at common law ? At common law there were two remedies : one byjivrit of CHAP. III.j EEAL PKOPERTY. 89 proMbition, where waste was threatened ; the other by writ of waste, for waste actually committed. At common law a right of action existed only in cases where tenancies were created by the law itself — that is, tenancies in dower and curtesy. These were created by the law, and it was thought that the law was bound to protect the remainder-man or reversioner from injury. But where the tenancy was created by contract, it was left to the parties to establish the terms and provide against injury of this nature. By statute of Marlborough, 52 Hen. 3, ch. 24, the landlord was given a right to recover his actual damages in all cases of waste by tenants ; and by statute of Gloucester,- 6 Ed. 1, ch. 5, the penalty was in- creased to treble damages and a forfeiture of the premises. Wait's Acts. & Defs., vol. vi., p. 250. 33. Is there any remedy for waste or destruction of premises where the tenant holds without impeachment of waste ? There is. Equity will restrain by injunction the person committing such waste, but only with reference to the inten- tion of the party who created the estate. Wait's Acts. & Defs., vol. Vi., '250. 34. What could he recovered at law in case of waste ? Pecuniary damages. In some States the reversioner can still recover treble damages. 26 Barb. 409. 35. What are the principal rights and duties of life tenants ? The principal rights are : I. Estovers. II. Emblements. The principal duties are : I. Not to commit waste. II To keep down incumbrances. III. To pay taxes. Chase's Blk., p. 304 ; Swaine v. Perrine, 5 Johns. Ch. 482; Washburn on Real Prop., vol. i, 97. 12 90 KEAL PROPERTY. [OHAP. III. 36. Upon the determination of the estate for life by the death of the life tenant, to whom do the profits of the growing crops belong ? At common law they belong to his personal representa- tives. Washburn on Real Prop., vol. i., p. 102. 37. By what term are such profits known to the law ? The term emblements. Washburn on Real Prop., vol. i., p. 102. 38. In the application of the rule governing such profits, is there any, and, if any, what distinction made between the different classes of products of the ground, and upon what principle does it rest ? There is. All such crops as require annual planting and culture are regarded as emblements ; but such things as are ol! spontaneous growth, as roots and trees not annual, and the fruit on such trees, although ripe, and grass growing, even if ready to cut, are not emblements. The theory upon which tills rule rests is based partly upon the idea of compensation, . but chiefly upon the policy of encouraging husbandry, by assuring the fruits of his labor to the one who cultivates the IsoU. 2 Bl. Comm. 122 ; 10 Johns. 361 ; Washburn on Real Prop., vol. i., p. 102 ; 9 Johns. 108. 39. What are estovers f The right of the tenant to take so much wood as will be sufiicient to provide him with fuel and enable him to fence his land and conduct agricultural operations generally. 2 Black- stone's Comm. 35. SEC. 5. ESTATES FOR YEARS. 40. Define an estate for years. A conventional estate in lands, having some fixed and limited duration. Williams on Real Prop. 195 ; 1 Washburn on Real Prop. 298. CHAP. III. J REAL PROPERTY. 91 41. What effect has destruction of building hy fire on liability of tenant to pay rent ? At common law the liability continued to exist, but this has been generally changed by statute. N. Y., Laws of 1860, ch. 345 ; Washburn on Real Prop., vol. i., 332. 42. What are the grounds of the lessee's liability to pay rent ? Generally the terms of the lease limit and define the tenant's liability, but in the absence of any express contract the tenant must pay so much as the premises are reasonably worth. Scrantom v. Booth, 29 Barb. 171. 43. What is the difference between an assignment and a sub-letting ? An assignment is a transfer of the tenant's entire interest in the lease. A sub-letting is a transfer of a part only of the tenant's interest. King v. Dawson, 98 Mass. 309 ; JRooseroelt V. Hopkins, 33 N. Y. 81. 44. To whom is the assignee of the lessee liable for rent ? To the original lessor for rent which becomes due after the assignment. McGormicJc v. Young, 2 Dana, 294 ; Graves V. Porter, 11 Barb. 592. 45. What is the difference between privity of contract and 'privity of estate f Privity of contract is that privity which exists between the parties to a contract. Privity of estate is the relation existing between a landlord and his lessee. Both privity of contract and privity of estate exist be- tween a landlord and his tenant ; and though the tenant may assign the interest which he possesses in the property, and thereby destroy the privity of estate subsisting between him- self and his landlord, he nevertheless remains liable for the rent because of his privity of contract. 6 How. 60 ; 1 Wash- burn on Eeal Prop. 314. 92 EEAL TEOPEBTY. [CHAP. III. 46. W7ien is a building personal property f When a right to remove the building has been reserved, and in some cases w^here the building was erected for the pur- poses of trade by the tenant occupying the premises. Kissam V. Barclay, 17 Abb. Pr. 360. 47. If a man hires a store and fits it up with counters and shelving nailed to the building, can he remove them ? Yes. Capen v. PecJcham, 35 Conn. 88 ; 1 Duer, 363 ; but see 27 Mich. 289. 48. WJiat is a covenant in a lease and what a condition f A covenant is an agreement contained in the lease which provides that the parties shall do or refrain from doing a cer- tain thing ; and in case of their neglect to perform the contract as agreed, that the one offending shaU pay to the other a cer- tain sum of money. A condition is similar to a covenant in its nature, except that a breach of the condition forfeits the estate. Coke Litt. Butler's Note 94 ; 2 Blk, Comm. 299. 49. Who may enforce them, and in what manner f The lessor has an action for the amount of damages men- tioned in the covenant, and he may re-enter upon breach of condition. Wait's Acts. & Defs., vol. ii., 354; 1 Washburn on Real Prop. 322. 50. What covenants are implied in leases for years ? To pay rent, to make tenantable repairs, to use the premises in a reasonably careful manner, and not to put them to a use radically different from the one to which they have previously been applied. Lynch v. Salt Co., 64 Barb. 558; 22 Ala. 382. 51. When may a lessee deny his landlord's title? State the general rule and principal exceptions. The general rule is that the tenant is estopped to deny his landlord's title. CHAP. III.] REAL PROPERTY. 93 The exceptions to the rule are : 1. Where the landlord's title has expired ; 2. If the lessee has been evicted by a para- mount title ; 3. If the lessee acquires the title himself ; 4. Where the lessee was induced to accept the lease through fraud. Hardy v. Akerly, 57 Barb. 148 ; Bigler v. Furman, 68 Barb. 645 ; 41 Mo. 447 ; 38 Tex. 291. 52. Define interesse termini. The interest which a lessee has who holds a lease of a cer tain piece of land, but has not yet made entry, is called his in- terest in the term, or interesse termini. 2 Black. Comm. 144. 53. Give the difference between actual and constructive eviction. Actual eviction consists in physically depriving the tenani; of his estate, either in whole or in part. Constructive eviction takes place when the landlord does gome act which tends to render the leasehold untenantable, or which will prevent its being used for the purposes for which it was leased, but does not corporeally deprive the tenant of the land. 4 N. Y. 217 ; 11 Johns. 495 ; 8 Cow. 727 ; 120 Mass. 284. 54. State the effect of an eviction 'by the landlord and an emotion by a stranger upon the tenant's liability to pay rent. In these cases the following rules are said to govern : " If there has been an eviction from the whole premises by the lawful act of a stranger, the whole rent of the premises is suspended. If such eviction be from a part only of the premises, the rent will be apportioned and a part suspended, according to the relative value of the premises from which the tenant is evicted. But if the eviction be by act of the lessor, or by, his procurement and authority, the rent of the entire premises will be suspended while such eviction continues, whether it be of the whole premises or of a part of them." 1 Washburn on Eeal Prop. 345; Hegeman v. McArthur, 1 E. D. Smith, 147 ; 1 Allen, 489. 94 REAL PKOPEETY. [CHAP. III. 55. WJiat leases of land are within the statute of frauds ? In ISfew York and most of the States, a parol lease, to be valid, must not exceed one year. 2 R. S. N. Y. 135, §6. SEC. 6. ESTATES FROM TEAR TO YEAR. 56. What is an estate from year to year ? It is an estate created by construction of law, and having no fixed period of duration (thus differing from an estate for years, whose duration is always known), and may be termi- nated at any time by the landlord's giving notice, usually of six months, expiring at the end of the year. 1 Washburn on Real Prop. 382 ; 49 N. Y. 499. 57. Does the doctrine of emblements apply to this class of estate ? Yes, provided crops were sown before notice to quit was given. 1 Washburn on Real Prop. 384. SEC. 7. ESTATES AT WILL. 58. What is an estate at will? It is an estate created by the use of such words fn a lease as "at will," or equivalent terms. Courts do not, as a rule, favor the existence of these estates, and wUl, if possible, con- strue them to be estates from year to year. They may be terminated, as the name implies, by the landlord at any time. In New York the Rev^ised Statutes require the lessor to give one month's notice ; if the tenant does not leave at the expira- tion of that time, summary proceedings may be resorted to, and the tenant evicted without further delay. 1 Washburn on Real Prop. 382 ; 1 N. Y. R. S. 745. 59. Is the tenant entitled to estovers and emblements ? Yes, if the lease is terminated by the lessor, but not other- wise. 1 Washburn on Real Prop. 506. CHAP. III.] REAL PEOPERTY. 95 SEC. 8. ESTATES AT SUFFEEANCE. 60. ^V7iat is the nature of an estate at sufferance f This estate exists when a tenant holds over after the termination of original estate ; but to create such an estate, the lessor must have been guilty of some laches. 1 Wash- burn on Real Prop. 393. 61. /s such a tenant entitled to emhlements ? He is not. 1 Washburn on Real Prop. 393. 62. What is generally the statutory notice to quit f One month. 2 R. S. N. Y. 745. 63. What is the penalty for holding over ? It is usually provided by statute that should the lessor give notice to quit and the tenant still hold over, he must pay double the value of the premises which the landlord might obtain by a new lease. If the tenant gives notice that he will leave, but still remains, he must pay double the value of the rent, according to the original lease. 2 R. S. F. Y. 745, 746. SEC. 9. JOINT ESTATES. 64. Define Joint tenancy. It is an estate given to two or more persons jointly, who are said to hold it per my et per tout, each tenant owning the whole. Their unities of interest are time, ^tle, interest, and pos- session. Such an estate is created pj purchase, and can never arise by operation of law. The most distinguishing feature of joint tenancy is what is called the doctrine of survivorship ; this is a rule of law which provides that upon the death of one or more of the joint tenants the entire estate shall go to the survivor or sur- vivors. 1 Washburn on Real Prop. 406. 96 KEAL PEOPEKTY. [CHAP. III. 65. How may a joint tenancy he severed ? By destroying any of the unities mentioned above. 1 Wash- burn on Real Prop. 406. 66. May one joint tenant devise Ms share ? Such a devise would be of no effect, as the doctrine of sur- vivorship takes effect at death, and the will after. 1 Wash- bum on Real Prop. 413. 67. What is an estate in coparcenary ? ■ It has been defined to be " an estate which exists at com- mon law where an owner dies without making a will, leaving several female heirs, in which case primogeniture does nor, exist, but all claimants taken together constitute the heir." This estate does not exist in the United States. Such an. estate is always created by act of law, and never by act of the parties. 2 Blackstone's Comm. 187 ; 4 Kent. Comm. 462. 68. What is an estate in entirety f It is an estate given to an husband and wife jointly after their marriage. Neither can alien his share without the con- sent of the other, and upon the death of one the whole estate vests in the survivor. 4 Kern. 430 ; 1 Washburn on Real Prop. 425. 69. What is a tenancy in comTnon ? It is an estate which two or more persons hold by several and distinct titles, but at one and the same time. There is but one unity of interest necessary to constitute this estate, and that is possession. 1 Wash, on Real Prop. 416. 70. What are the principal rights and liabilities of tenants in common as respects each other ? They are responsible to each other for waste, and must account for all rents and other profits which they receive ; but at common law no tenant is liable to pay rent for his own occupation of the estate. CHAP. III.] EEA.L PROPERTY. 97 If repairs are necessary, and one tenant makes them, he will have contribution from the rest. But this rule does not apply to improvements. 1 Washburn on Real Prop. 421. SEC. 10. ESTATES UPON CONDITION. 71. Define an estate upon condition. It is an estate which may be created, enlarged, or defeated by the happening or not happening of some contingent event. 1 Washburn on Real Prop. 445 ; 2 Flint on Real Prop. 225 ; Co. Lit. 201. 72. State general rules applicable to conditions. 1. The condition must be created when the estate is, and it must cover the entire interest. 2. The condition must be lawful. 3. After the condition is broken, entry by the grantor must be made to revest the estate. 4. The condition can only be reserved to the grantor and his heirs, but this common-law rule was somewhat modified by Statute 32 Hen. \lll. c. 34. 5. A condition cannot be created by parol. 6. A condition once waived cannot be again enforced. This is called the rule in Dumpor's case. 1 Washburn on Real Prop. 445. 73. Name the different kinds of conditions. Conditions are precedent and subsequent, express and implied. If the condition be precedent, it must be performed before the estate can vest. If the condition be subsequent, an estate vests in the grantor subject to being defeated by a breach of the condition. 1 Washburn on Real Prop. 448. 74. What is the effect of a condition precedent if unlawful f The grant or devise is void, and no estate will vest in the grantee. 1 Washburn on Real Prop. 448. 13 98 EEAL PROPEETY. [cHAP. III. 75. What is the effect of a condition svhsequ&nt if unlaw- ful f An estate vests unconditionally. 1 Washburn on Keal Prop. 454. 76. Name the principal estates upon condition at common law. Estate upon condition. Estate upon limitation. Estate upon conditional limitation. Estate conditional at common law, by the statute de donis made 'fees tail. Dwight's Class, of Estates, 1 Col. Jur. 8. 77. When will equity relieve upon a breach of condition, and when not ? Equity will sometimes relieve when the damages can be definitely ascertained, but not otherwise. 1 Washburn on Real Prop. 455. 78. What is an estate upon limitation ? It is an estate granted untU the happening of some event, upon the occurrence of which it reverts to the grantor. It differs from an estate upon condition in that no entry is neces- sary to cause the estate to revert. 3 Gray 149 ; 1 Washburn on Eeal Prop. 459. 79. What is a conditional limitation f It is an estate granted to one person upon a certain condi- tion, upon the breach of which the estates goes over to a third person. Entry is not necessary to vest the estate. 3 Gray, 149 ; 1 Washburn on Real Prop. 459-60. SEC. 11. MOETGAGES. 80. What is a mortgage ? A mortgage was originally an estate defeasible upon the performance of a condition subsequent. At the present time CHAP. III.] REAL PROPERTY. 99 it is merely a lien upon the property, and the mortgagor re- mains the legal owner of the mortgaged estate. Williams on Real Prop. 349 ; 1 Washburn on Real Prop. 475. 81. What may he mortgaged ? AU kinds of real property which may be the subject-mat- ter of an absolute sale may be mortgaged. Estates in re- mainder and reversion, franchises and rents, have all been held to be mortgagable interests. But a mere possibility may not be mortgaged. 4 Kent's Comm. 144 ; 1 Washburn on Real Prop. 479. 82. W?iat is the rule as to the talidity.of a mortgage upon after-acquired property ? The estate must belong to the mortgagor at the time the mortgage is given ; otherwise it is invalid. Wait's Acts. & Defs., vol. iv.'; 514. 83. When and as respects whom are mortgages to secure future advances or balances effectual ? Such a mortgage is always good as between the parties, and even if the instrument does not disclose the intent to se- cure future advances, if it states a specific sum as the amount intended to be secured, and is recorded, it is good for subse- quent advances except as against persons acquiring equities prior to the time when such advances are made. 42 Miss. 749 ; 22 K. Y. 380 ; 1 Peters, 386. 84. State distinction between conditional sales and mort- gages. The distinction has been stated to be as follows : "A deed absolute in form, if intended to secure the payment of money, and the relation of debtor and creditor exists between the grantor and grantee at the time of its execution, will be treated as a mortgage. But where no such relation exists, and the grantor and grantee, at the time of the execution of the deed, agree in writing that the grantor shall have the option of re-purchase in a given time at a certain price, the transaction is a conditional sale." Slutz v. Deseriberg, 28 Ohio St. 371 ; 4 Wait's Acts. & Defs. 514. 100 EEAL PEOPEBTT. [CHAP. III. 85. State the meaning of the maxim, '■'•Once a mortgage always a mortgage. " In order to do away with the mortgagor's equity of re- demption, the mortgagee will sometimes secure from the mortgagor an agreement to the effect that if the mortgage is not paid at the time it becomes due, the title to the mortgaged premises shall vest absolutely in the mortgagee. The courts held such an agreement to be invalid, as an estate could not at one time be a mortgage and at another time, by the terms of the same instrument, cease to be so ; and for this reason the maxim, " Once a mortgage always a mortgage," came to be a well-known rule of law. 2 Cowen 324 ; 27 Barb. 493. 86. When may the equity of redemption be waived ? It may be waived before foreclosure by an agreement be- tween the mortgagor and mortgagee, for a new consideration, to transfer the equity of redemption to the mortgagee, and thus, by the doctrine of merger, vest in him the entire fee. This plan is frequently resorted to by the mortgagor to save costs of a foreclosure snit. 4 Wait's Acts. & Defs. 533, 567 ; 2'Hun, 452. 87. What is the nature of a power of sale in a mortgage ? It is an agreement contained in the mortgage providing that if the mortgage is not paid when it becomes due, the mortgagee may have the property sold and apply the pro- ceeds to the satisfaction of his lien. In these cases the mortgagee sells according to certain statutory provisions which must be strictly observed. 1 Washburn on Real Prop. 498. 88. Distinguish between legal and equitable mortgages. Legal mortgages are drawn in the form of deeds, and con- tain a condition that if a certain sum is paid or a certain ser: vice rendered the deed shall be void. An equitable mortgage is an agreement which has no effect as a mortgage at law, but which equity wUl consider to be one, in order to effectuate the intention of the parties. The principal kinds of equitable mortgages are : 1. Deposit of title deeds ; 2. Vendor's lien for purchase CHAP. III.] KEAL PEOPEKTT, money ; 3. Defective execution of instrument intended to be a legal mortgage ; 4. Where a deed absolute on its face was intended to operate as a mortgage. 1 Washburn on Eeal Prop. 507 ; 4 Seld. 416 ; 2 Sandf. Ch. 9 ; 7 Smith, 581. 89. How far is a vendor's lien assignable ? In most of the States it may be assigned. But the assign- meht of collateral security which the vendor holds does not operate to transfer his lien also. 1 Page Ch. 502 ; 7 Yerg. 9 ; 14 Ohio, 20 ; 1 Washburn on Real Prop. 508. 90. Sow is such a lien enforced f By filing a bUl in equity. 1 Washburn on Eeal Prop. 507. 91. Which has precedence, an unrecorded mortgage or a subsequently docketed judgment f Why ? An unrecorded mortgage. The statutes requiring mortgages to be recorded to give them priority over junior incumbrances of a like nature indi- cates no distinction as regards priority between an unrecorded mortgage and a subsequently docketed judgment. This being .so, the lien which is prior in time is superior in right. Jack- son V. Doubois, 4 Johnson, 216 ; 30 Barb. 268. 92. In what position does the assignee of a mortgage stand ? He stands in the same position as his assignor did before the assignment took place. To use the language of an eminent American jurist : " The rule is not simply that the assignee takes subject to the equities between the original • parties, though this is sound law. It goes further than this, and declares that the purchaser of a chose in action must always abide the case of the person from whom he buys. Trustees of Union College v. Wheeler, 61 K. Y. 105, Opinion per D wight, C. 93. What steps ought to be taken to ascertain and protect Ms interests ? The assignee of a mortgage should get a statement in 102 EBAE PROPERTY. [OHAP. HI. writing from the mortgagor of the amount due upon the mortgage, and as to its validity. Such statements may sub- sequently be used as estoppels against the mortgagor. The assignee should also notify the mortgagor of assignment, and record the same as soon as it is made. 29 Barb. 505. 94. What is the equity of redemption in Tnortgaged prem- ises f It was originally the right of the mortgagor to redeem from the mortgage upon the payment of principal, interest, and costs, and was recognized by courts of equity alone. It is now the legal estate of the mortgagor in the mortgaged premises. 4 Wait's Acts. & Defs. 613. 95. -A mortgage/or part of the purchase money of the prop^ erty was not executed by the wife of the mortgagor. There was also a judgment against him recovered prior to^e execu- tion of the mortgage. Have either the wife or the judgment creditors rights against the property superior to the mort- gagee? Are they necessary parties to a suit to foreclose a mortgage f The lien of the mortgagee takes precedence of all other, incumbrances ; but the wife and others having liens should be made parties because of their interest in the equity of re- demption. 28 Wis. 266 ; 15 Johns. 458 ; N". Y. Code C. P., § 1254. 96. In case a mortgagor of real property conveys the mort- gaged premises, and by the terms of the conveyance the grantee covenants to pay the debt to secure which the mortgage was made, does such a covenant enure to the benefit of the ^ mortgagee f If so, upon what principle ? It does, upon the principle of subrogation. Halsey v. Reed, 9 Page, 446 ; Trotter v. Hughes, 12 N. Y. 79. 97. How is insurance usually effected upon mortgaged property f It is generally provided by the terms of the mortgage that the mortgagor shall keep the premises insured. This is done CHAP. III. J REAL PROPERTY. 103 either by agreement that the mortgagor shall take out the policy of insurance in his own name and assign it to the mort- gagee, or that he will pay certain sums of money to the mort- gagee, who may then insure in his own name. It is also com- monly added that if the mortgagor does not fulfil his agree- ment, the mortgagee may advance the premiums from his own means and add the amount to the mortgage. The best course for mortgagee is to take out the policy in his own name, since otherwise, if mortgagor, having assigned policy to him, should be guilty of any misconduct, he would hold the policy subject to all the equitable defences between the insurance company and the mortgagor. D wight's Notes on Insurance, 2 Col. Jur. 358. 98. If one, having mortgaged an estate, comeys it after- ward in different parcels to different purchasers, but at the. same time, how must the burden of the mortgage be borne ? Each parcel is chargeable only with its ratable propor- tion of the mortgage debt, according to the relative value of such parcels at the date of the mortgage. Stevens v. Cooper, 1 Johns. Ch. 425. 99. If one, Tiaving mortgaged an estate, conveys it after- ward in different parcels to different purchasers and succes- sively, how must the burden of the mortgage be borne ? Such parcels must be charged in the inverse order of their alienation. Gouverneur v. Lynch, 2 Page, 300 ; 1 Washburn on Real Prop. 570. 100. If a tenant for life pay off a mortgage, what right has he against the reversioner ? He may collect from the reversioner the difiference be- tween the amounts which his life interest in the estate com- pelled him to pay, and the sum total required to discharge the mortgage. 10 Page, N. Y. 49. 101. Can an absolute deed be shown by parol to be a mort- gage? Yes. Horn v. Keteltas, 46 N. Y. 605. 104 EKAL PROPERTY. [CHAP. III. SEC. 12. INCORPOREAL HEREDITAMENTS. 102. What are incorporeal hereditaments f They are rights which issue from things corporeal, and are sometimes classified as follows: "1. Those which consist in taking some profit from the land, usually called profits a prendre ; 2. Those which consist in the right to use the land of another without profit, called easements ; 3. Those which create new rights, such as rents." 2 Washburn on Eeal Prop. 4. 103. State the principal kinds of easements. 1. The right of way, or the right one has to pass through or over the land of another ; 2. The right of water, or the right to draw or use the water of another ; 3. The right of light and air ; 4. The right of support of land or buildings upon it ; 5. Party walls. 2 "Washburn on Real Prop. 24. 104. W7iat are meant by the terms dmninant tenement and servient tenement ? The owner of the dominant tenement or estate is he who has the right to an easement in the land of another; the owner of the servient tenement is he over whose estate this right is exercised. 2 Washburn on Real Prop. 26. 105. What is the difference between an affirmative and a negative easement ? An affirmative easement exists where the owner of the servient tenement must permit something to be done thereon, as to allow the dominant tenant to pass over it. A negative easement exists when the owner of the servient estate is pro- hibited from doing something otherwise lawful on his own estate, because it will effect the dominant estate. An example of such an easement is the right of support from the land of an adjacent owner ; this exists between all owners of real property as regards the land itself, but not as to buildings erected thereon, unless they have been in existence for the space of twenty years or over. 2 Washburn on Real Prop. 26. CHAP. III.] REAL PROPERTY. 105 106. How may easements be acquired f 1. By express grant ; 2. By reservation in a deed ; 3. By implied grant ; 4. By prescription ; 5. By act of law ; 6. By custom ; 7. By dedication ; 8. By nature. 2 "Washburn on Real Prop. 28-61. 107. Bxplain the doctrine of "■dedication''^ as a mode of creating easements. The term " dedication," as used in this connection, has been defined to mean " the appropriation, of land by an owner for any general public use, reserving no other rights than such as are compatible with the full exercise and enjoyment of such public use." The intention of the donor to have the easement created must be clearly evidenced, and it is also necessary, to rendej such a servitude valid, that the public do some overt act sig nifying their acceptance. 22 AVend. 472 ; 14 Barb. 611. 108. What is the difference between a party-wall and a wall in common ? A wall in common is one which separates the land of one person from that of another, and is owned by the persons whose property it divides. Each owns that portion of the waU which stands upon his land, and may do with it as he will. A party- wall resembles a wall in common with this addi- tion, that each owner has the right to have his portion of the wall supported by that of the other owner. 2 Washburn on Real Prop. 78 ; 2 Bosw. 685. 109. WJiose duty is it to repair a party-wall? Neither party can be compelled by the other to repair, but if either does so, and the repairs are necessary, he can compel contribution from the other. 4 Johns. Ch. 384. 110. What is the difference between an easement and a license ? A license may be revoked at the pleasure of the grantor, and is not transferable. 14 106 REAL PEOPERTT. [CHAP. III. An easement is irrevocable, and may be transferred, 1 Cow. 568 ; 8 El. & Bl. 123 ; 2 Washburn on Real Prop. 24. 111. How may an easement he extinguished f 1. By release ; 2. By merger ; 3. By non-user, and 4. By disclaimer. 24 Barb. 44 ; 2 Washburn on Real Prop. 82. SEC. 13. USES. 112. state briefly the origin and nature of uses as they existed before the statute of 27 Henry VIII. Before the enactment of the statute alluded to in the question, and which is known as the Statute of Uses, it was ' always necessary, to create an estate in fee simple, for the fjrantor or feoffor, as he was then called, to go upon the land accompanied by the grantee, and deliver to him a clod of earth, a twig, or the like, at the same time formally declaring that he granted the estate to this feoffee. Such symbolical and cor- poreal transfer of the land was known as livery of seizin. During the reigns of Henry III. and Edward I. , the gov- ernment deeming it impolitical to allow religious houses to acquire any considerable estates, passed a series of statutes, known as the Statutes of Mortmain, which enjoined persons from transferring their property to institutions of this nature. To evade the effect of the statutes, a device, which appears to have been not unknown to the Roman law, was resorted to. A- grant of an estate was made to one person, to hold the same for the use or benefit of another. Now, although courts of law refused to enforce this contract for the benefit of the third party, or feoffee to uses, as he was called, yet courts of equity held the feoffee bound in conscience to hold the estate for the benefit of the cestui que use, as the owner of the equitable estate was termed. This mode of transferring property then gave rise to two distinct estates : one being the legal estate held by the grantee, and the other the equitable and beneficial estate, which vested in the cestui que use. The legal owner assumed all the liabilities, and the equit- able owner enjoyed all the profits of such an estate. The equitable estate could be devised and granted at the pleasure •CHAP. III. J REAL PKOPEETY. 107 of the cestui que use. It will thus be perceived that the Statutes of Mortmain were set at naught, and the religious houses were enabled to acquire estates as readily as ever be- fore. To remedy this state of affairs, the Statute of Uses (27 Hen. yill.) was enacted. 2 Washburn on Real Prop. 91-109 ; Cornish Uses, 10 ; 1 Spence Eq. Jur. 436 ; Brae. Law Tracts, 315. 113. ^ate the substance of the Statute of Uses, and the effect it produced. It provided that all persons for whose benefit uses were held should be deemed the legal owners of the estate in which the use was created. The equitable and legal estates were thus merged in the cestui que use, and he became subject to all the duties incident to the ownership of the legal estate. Had the statute been construed as its fraihers obviously intended, its effect would have been to do away with the creation of all estates to uses ; but such was not the case. By a narrow construction of the statute, its primary object was defeated. If an estate was created by way of use in the same manner as was in vogue before the statute — that is to say, an estate to A to the use of B — both the legal and equitable estates would have merged in the cestui que use ; but, as by the narrow construction of the statute previously alluded to, an estate limited to A to the use of B, to the use of C, was held to be without its provisions, as a use could not be limit:ed upon a use, and the legal estate would vest in B and the equitable in C, the additional name was invariably added, and the old condition of things before the statute revived. The effect that the Statute of Uses actually had was to introduce into English law three entirely new modes of con- veying estates — viz. : Covenant to Stand Seized, Bargain and Sale, and Lease and Release. 2 Washburn on Real Prop. 112-114; 2Blackstone's Comm. 336. 114. Define a deed of covenant to Stand Seized to Uses. A covenant to stand seized to u^es was that mode of con- veyance whereby " the person seized of land, being induced 108 EEAL PROPEETT. [CHAP. III. ' to part with, the estate to his wife or some person to whom he was akin by blood, in consideration of such relationship, cov- enanted to stand seized- of the same to the use of such person, either in present or in future. By such covenant he raised the use at the time when, by its terms, the covenant was to take effect, and as soon as the use was raised, it became exe- cuted by the Statute of Uses out of the seizin of the covenantor, by taking that and executing it with the use in the cestui que use.'''' 2 Washburn on Real Prop. 129; Tud. Lead. Cas. 265. 115. Define a tar gain and sale. " This mode of conveyancing consisted of a contract or bargain by the owner of land, in consideration of money or its equivalent paid, to sell the land to the bargainee, whereupon a use arose in favor of the latter, and the Statute of Uses at once took from the bargainor the seizin which was in him, and transferred it to the bargainee, who already had the use, and thereby made his title complete." Such conveyances were required to be enrolled. 2 Washburn on Eeal Prop. 128. 116. Define a lease and release. This mode of conveying lands was devised by Sir Francis Moore, to evade the statutes of enrolment. An estate in the land was conveyed by bargain and sale, for the period of one year, to the bargainee or lessee, which took effect by force of the Statute of Uses, without the necessity of any enrolment, so as to make the lease good without any entry made or formal possession delivered. " The bargainor, lessor, or grantor (for he acted all these parts) was then to execute and deliver an ordinary deed of release at common law to the bargainee or lessee, in fee, and this did not require any livery of seizin to give it effect, since the grantee or releasee was theoretically already in actual possession of the premises." Bargain and Sale is the only one of the three modes of conveyancing men- tioned in the foregoing questions which still prevails to any extent in the United States. 2 Washburn on Eeal Prop. 131 ; Williams on Real Prop. 153. CHAP. III. J KEAL PROPEETY. 109 SEC. 14. TRUSTS. 117. Define trusts, and state their origin. The equitable estate -which, before the Statute of Uses, vested in the cestui que use, and after the statute in the last person named, was, subsequent to the construction of the statute, termed a trust, and the person for whom the legal owner or trustee held the estate was called the cestui que trust. A trust at the present time may be defined to be a right of property held by one person for the benefit of an- other. 2 Washburn on Real Prop. 161. 118. How may trusts he classified? Trusts are either express or implied. Express trusts are subdivided into active and passive trusts. 2 Washburn on Real Prop., ch. 3, § 2. 119. Distinguish between active and passive express trusts. Passive express trusts arose from the narrow construction given to the Statute of Uses. The trustee has no duty to per- form in such cases. These trusts have been abolished in most of the United States. Active express trusts existed at common law when the trustee had some positive duty to perform, such as to collect rents and the like. There were a great many of these trusts at common law, but the Revised Statutes of New York have reduced the num- ber to four, and provide that all trusts which are not included under one of these heads shaU be deemed powers in trust. 2 R. S. N. Y. 729, § 58. 120. What are the active express trusts in New York? Express trusts may be created for any or either of the following purposes : 1. To sell lands for the benefit of creditors. 2. To sell, mortgage, or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon. 3. To receive the rents and profits of lands and apply 110 KEAL PROPERTY. [OHAP. III. them to the use of any person, during the life of such person, or for a shorter term. 4. To receive the rents and profits of lands, and to ac- cumulate the same for the benefit of minors. 2 B,. S. 728, §55. 121. What are resulting trusts ? Resulting trusts form a branch of the law of implied trusts. They are supposed to exist from the presumed intention of the parties and the nature of the transaction. Lord Hard- wicke mentions three classes of resulting trusts : 1. Where the estate is purchased in the name of one, but the money is paid by another ; 2. Where the trust is declared in part only, the residue remaining undisposed of ; and 3. In Bases of fraud. Such trusts do not come within the Statute of Frauds, which requires trusts to be in writing, as they arise by impli- cation of law. 2 Washburn on Real Prop. 172 ; Lloyd v. Spillet, 2 Atk. 148, 150. / 122. WItat are constructive trusts ? Constructive trusts are such as are raised by equity in re- spect to property which has been acquired by fraud, or where, though acquired originally without fraud, it is against equity that it should be retained by him who holds the legal title. 1 Spence. Eq. Jur. 511 ; 2 Washburn on Real Prop. 176. 123. What proof of trusts is required 'by the statute of frauds ? By the seventh section of that statute, all declarations or creations of trusts, etc., of any lands, tenements, or heredita- ments must be manifested and proved by some writing signed by the person creating the trust, or by his last will in writing. A subsequent section excepts all implied or constructive trusts. AVashburn on Real Prop. ; Strimpfler v. Jioberts, 18 Penn. St. 283. 124. State what is an implied trust, and give an example. Implied trusts are such as are founded upon the presumed CHAP. III.] EEAL PROPERTY. Ill intention of the party. An example would be the case where a vendor contracts to sell lands. In such a case the purchaser becomes, in view of a court of ecLuity, the owner, and the vendor is a trustee. 3 Kern. 150 ; 2 Washburn on Real Prop. 117. 125. Give the rule as to trustees dealing with trust estates. The trustee wiU not be allowed to derive the least personal advantage from the trust estate ; and if one occupying this fiduciary relation, and having the power to sell land, should do so, and buy it in himself, the cestui que trust might have the entire transaction set aside. 2 Washburn on Heal Prop. 208,209. SEC. 15. EEMAINDEBS, EXECUTORY DEVISES, ANB SPRINGING AND SHIFTING USES. 126. What is a remainder ? Estates, so far as the right to enjoy them is/ concerned, may be divided into estates of possession and estates of ex- pectancy ; the latter class may be again divided into estates in remainder and estates in reversion. A remainder is an estate limited, t"6 take effect upon the tel-mination of a previous "estate. TZhe^first estate is termed the particular estate. Such an estate can only be created by act of the parties. A re- mainder is, always created by the same act or instrument as that which creates the particular estate. 2 Washburn on Real Prop. 223 ; Williams on Real Prop. 208. 127. Classify and define the different estates in remainder. Remainders are either vested or contingent. A vested remainder is one where there is always a person in being who would have an immediate right to the. estate in remainder should the particular estate at any' "time determine. Contingent remainders occur where an estate of this character is created, but the person to whom the remainder is limited, or the event upon which if is to take effect, is uncertain. 2 Washburn on Real Prop. 224. 112 EBAL PBOPERTY. [CHAP. III. 128. WItat were the chief rules of the common law in regard to contingent remainders ? 1. A contingent remainder can only be limited after an estate of freehold ; the reason of this was that a tenant of the freehold was necessary to render the lord service. 2. The tenant of the estate upon which the remainder is limited cannot charge the remainder-man for improvements, or make an agreement with him in reference to the estate which wiU be binding. 3. If there be an interval of time, no matter how short, between the termination of the particular estate and the vest- ing of the remainder, the latter estate is destroyed. 2 Wash burn on Eeal Prop. 219-276. 129. Wftat is the rule in Shelley'' s case ? The rule is, that where an estate in freehold is granted to A for life remainder to his heirs in fee, the word heirs shall b* construed to be a word of limitation and not of purchase, so that the heirs would in such a case take, if at all, by descent ; and the grantee, A, would acquire an estate in fee simple, which he might alien at any time. This arbitrary and unjust rule no longer exists in many of the Spates, and in New York was abolished by the Eevised Statutes of 1830. In all States where the "rule" no longer prevails, the heirs take as pur- chasers, and the grantor has but a life estate in the laud. 2 Washburn on Real Prop. 268 ; N. Y. R. S., 4th ed., pt. 2, tit. 2, art. 1, § 28. • . 130. Define a springing use. " A springing use is one limited to arise on a future event where no preceding use is limited, and which does not take efifect in derogation of any other interest than that which re- sults to the grantor, or remains in him in the mean time." Hubert's Uses, Sugd. ed. 153 ; 2 Washburn on Real Prop. 281. 131. What is a shifting use ? A shifting use is one where the use and seizin shift in derogation of some prior estate. 2 Washburn on Real Prop. 285-300. CHAP. III. J REAL PEOPERTY. 113 132. What is a contingent use ? . A contingent use is one which operates as a remainder, and is supported by a prior estate of freehold. 2 Washburn on Eeal Prop. 277. 133. Wkat is an executory devise ? It is the disposition of real property by will, so that no estate vests at the death of the testator, but upon the happen- ing of some future event. Springing uses— and the same is true of shifting uses- answer in most respects to executory devises, the difiEerence being that one is created by deed and the other by last will. 2 Washburn on Eeal Prop. 283. 134. How do executory devises differ from remainders ? They are said to differ ia three ways : 1. An executory devise needs no particular estate to support it ; 2. A fee may be limited after a fee, which could not be done by way of re- mainder ; 3. A term of years may be limited after a life estate. 2 Washburn on Eeal Prop. 341. 136. Give the rule, general and statutory, against per- petuities, and its policy and purpose. It frequently happens that the owner of a large estate, desiring to have it accumulate for the benefit of his posterity, devises it in such a manner as to prevent its subsequent alienation. Such estates are known as perpetuities, and have from an early day been looked upon by the courts with great disfavor, as being contrary to public policy. At common law the power of alienation could not be suspended ,for a longer period than during any number of lives in being at the creation of the estate, and twenty-one years and a fraction after the death of the persons by whose lives it was measured. By statute, in most of the States the restriction upon alienation, to be valid, must not be for a longer period than during the continuance of two lives in being at the creation of the estate, except that a contingent remainder in fee may be limited on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited 15 114 REAL PKOPERTT. [CHAP. III. shall die under the age of twenty-one years, or upon any other contingency by which the estate of such person may be deter- mined before they attain their full age. Thellusson v. Wood- ford, 1 B. & P. N. R. 396 ; 2 Washburn on Real Prop. 383-389 ; 1 Ind. Rev. Stat. 1852> p. 238, § 40 ; 2 R. S. N". Y., 4th ed., 133, §§ 15-20 ; Iowa Code, 1851, p. 1191 ; Ky. Rev. Stat., ch. 80, § 34. 136. What are cross remainders ? Cross remainders arise where lands are given in undivided shares to two or more persons by way of particular estates, by such limitations that, upon the determination of the estate of the first taker in any one of the shares, it remains over to the other grantees or donees named, and the reversioner or ulterior remainder-man is not let iato possession till the de- termination of all the particular estates. Co. Litt. 195 ; 2 Washburn on Real Prop. 234. SEC. 16. POWERS. 137. What is a power f A power is a right to limit a future estate by way of a use. 2 Washburn on Real Prop. 302 ; 4 Kent's Comm. 334 ; Cornish, Uses, 89. 138. Who is a donor qf a power ; an appointor of a power ; an appointee of a power ? A donor of a power is the person creating the power ; the appointor or donee the one to whom the power is given ; the appointee the person to whom the estate is given. 2 Wash- burn on Real Prop. 299-308. 139. What are the various Mnd,s of powers ? 1. Powers appendant. A person is said to have such a power when, though he possessed an estate in the land less than a fee, he can create an estate which will bind the rever- sion. 2. A power in gross is one which gives a donee, who has CHAP. III.] REAL PROPERTY. 115 an estate in the land, authority to create such estates only as will not attach on the interest limited to him, or take effect out of his own interest. 3. Collateral. Those in which the donee has no estate in the land. 4. General. Those by which the donee may appoint whom he chooses. 5. Special. Those by which the donee's right to appoint is limited to a particular person or class of persons. 6. Of appointment. Those which are to create new estates, distinguished from 7. Powers of revocation. Burton on Eeal Prop., § 179 ; 2 Washbur?j on Eeal Prop. 305 ; 2 Cow. N. Y. 236 ; Sanders's Uses, 154. 140. What is a power coupled with an interest, and give an example ? It is a right or authority to do some act together with an interest in the subject on which the power is to be exercised. An example would be a mortgage, with a power to seU. 8 Wheaton, 201. 141. How may a power he created? By deed or will. It may be granted or reserved by the grantor, and the reservation need not be in the same instru- ment which grants the estate. 2 Washburn on Real Prop. 314 ; 4 Kent's Comm. 319. 142. What is the difference between a naked power and a power coupled with an interest ? Should the donor of a naked power die, his death would revoke the power ; but were he the donor of a power coupled with an interest, his death would not affect the power, and it might still be exercised by the donee. 8 Wheaton, 201 ; 1 Peters, 315. 143. What is the difference between a power and a trust ? A trust vests an estate in the one who exercises it ; a power does not. 2 Washburn on Real Prop. 303 ; id. 166. 116 EEAL PEOPEETT. [CHAP. III. SEC. 17. TITLE BY DESCENT. 144. What is meant by the term " ^!^YZe" in the law of real property ? Coke defines it as " the means whereby the owner of lands hath the just possession of his property." Coke Litt. 345; 1 Ohio, 349. 145. What are the different modes of acquiring title to lands ? Title to real property can only be acquired in two ways— namely, by descent and by purchase. 3 Washburn on Eeal Prop. 396. 146. Define title iy descent. It is the title by which one person, upon the death of- an- other, acquires the real estate of the latter as his heir-at-law. Comyns, Dig. Descent {a) ; 2 Black. Comm. 201. 147. What are the English canons of descent? They are those rules by which titles by descent are governed at common law. Briefly stated, they are as follows : 1. The estate shall lineally descend to the issue of the person who last died actually seized, in infinitum, but never lineally ascend. Generally in the United States this rule has been changed, so that the estate may ascend if there be a failure of descend- ants. 2. The male issue shall be preferred to females. This rule prevails to a certain extent in the United States. 3. Where there are several male kindred of equal degree, the oldest is the heir. This rule has been generally abolished in the United States. 4. The lineal descendants take per stirpes, and not per capita; that is to say, the lineal descendants stand in the same place as the ancestor would himself have done had he been living. In the United States the lineal descendants take per capita, which is where each takes as next of Idn to the deceased in his own direct right, receiving an equal share CHAP. III.J EEAL PEOPERTY. 117 iu all cases where the heirs are of equal degrees of relation- ship to the deceased, but where they are of unequal degrees this canon applies, and they take per stirpes and not per capita, those of the most remote degree taking the share which their ancestor would have received if living. 5. Upon failure of lineal descendants or issue of the jper- son last seized, the inheritance descends to his collateral rela- tions of the blood of the first purchaser, subject to the three last rules. This has been changed, so that the estate goes to lineal ancestors, if there be any, in preference to collateral relations. 6. The heir in the collateral line of the person last seized must be his next collateral kinsman of the whole blood. A kinsman of the half blood is now made capable of being heir, and to inherit next after a kinsman in the same degree of the whole blood. 7. In respect to collateral inheritances, male stock shall be preferred to female, unless the lands have descended from the female branch. In the United States these rules are of comparatively slight importance, as the various States have provided by statute how estates shall in most cases descend ; where, how- ever, no provision of this nature is made, the English canons apply, and for this reason they are given here. 2 Black. Comm. 213-234 ; Williams on Real Prop. 78-83 ; 3 Washburn on Real Prop. 406-409 ; Chase's Ed. Black. Comm. 389, note 6. 148. How are the degrees of relationship computed ? By counting back from one of the parties related to the common ancestor, and down from the common ancestor to the person whose degree of relationship is desired to be ascer- tained, excluding the common ancestor. 3 Washburn on Real Prop. 406. 149. How does the real estate of a person who dies intestate descend ? In New York as follows ; 1. To his lineal descendants. 118 REAL PBOPEKTY. [CHAP. III. 2. To his father. 3. To his mother. 4. To his collateral relatives. 2 K Y. R. S. 751; 2 Denio, 9. 150. WTiat is an heir f An heir is a person upon whom the law casts the estate in lands, tenements, or hereditaments upon the death of the owner. 2 Bouv 663 ; 2 Black. Comm. 208. 151. A dies intestate^ owning real estate. He leaves no children surviving him. He leaves one grandchild, child of his deceased son B, and ten grandchildren, children of deceased son C. How is his real estate divided among his grandchildren f Equally, each grandchild taking one elevenuh of the estate. 2 N. Y. R. S. 751, § 2. . SEC. 18. TITLE BY PUECHASE. 152. What is title by escheat ? It is that title which accrues to the original grantor of an estate or his heirs, upon failure of the blood of the person last seized. In the United States, if one dies intestate and without heirs, his property, in conformity with this doctrine, reverts to the State. To perfect such reversion, however, a certain I)roceeding, known as inquest of office, has to be instituted by the attorney -general, upon the completion of which title vests in the State. 1 Washburn on Real Prop. 24, 27 ; 4 Kent's Comm. 424. 1 53. How may a title to land he gained by judgment and execution f By purchase at a sheriff's sale of the property of a judg- ment debtor judicially condemned to be sold to liquidate his liabilities. The following are some of the principal rules gov- erning such proceedings : CHAP. m.J REAL PROPEKTY. liy 1. The personal estate must be exhausted before the real property can be resorted to , 2. The sheriff must only sell so much of the real estate as is sufficient to discharge the debt. 3. The sale must be by public auction. 4. The judgment debtor must be allowed a reasonable time to redeem, and if he does not avail • himself of this priv- ilege, his other creditors may. If neither do so the title, after the expiration of a certain period, vests in the purchaser at the sheriff's sale. Such proceedings are generally regulated by statute, and if the law is not strictly complied with, no title vests in the purchaser. N. Y. Code Civ. Pro. §§ 1430-1478 ; 6 Hill, 525 ; 4 Hun, 419 ; 45 N. Y. 368 ; 86 N. Y. 221 ; 53 K Y. 280. 154. What is the doctrine of prescription f It is that doctrine which presumes the title to an incor- poreal hereditament to be in the person who has had open, adverse and notorious possession thereof for a period of at least twenty years. 3 Kent's Comm. 442 ; 12 Wend. JST. Y. 330 ; 27 Vt. 265. 155. What is necessary to the acquisition of title by adverse possession ? Such titles are analogous to titles by prescription, and differ from them principally in that they apply to corporeal interests in reality, and not to incorporeal. To acquire title by this means, it must be occupied for the same period as would be requisite to obtain title by prescription, and in such an open, continuous, and notorious manner. Under such cir- cumstances the law presumes that the land was originally granted to the present occupant. 8 East, 248 ; 3 Washburn on Real Prop. 500. 156. What is a deed f A writing containing a contract signed, sealed, and deliv- ered. 2 Washburn on Real Prop. 553. 120 REAL PROPEETT. [CHAP. III. 157. Enumerate and define the principal covenants usually contained in a deed. 1. The covenant of seizin, which states that the grantor is lawfully seized. 2. The covenant of right to convey, which declares that the grantor has a valid right to convey. 3. The covenant against incumbrances, which states that there are no liens or claims upon the property in favor of third persons. 4. The covenant of quiet enjoyment, which provides that the grantee shall be protected from all annoyance caused by a defective title. 5. The covenant of warranty, which states that the grantor warrants and defends the estate granted against all adverse claims. 6. The covenant of further assurance provides that the grantor shall do all that is essential to the completion of the title. The latter covenant is not inserted in many of the States, and, in fact, the covenant of warranty is frequently the o^ily one used. The damages recoverable for breach of the covenant of warranty may equal the value of the estate. 3 Washburn on 'Keal Prop. 648 ; 1 Williams on Keal Prop. 365-369. 158. What covenants run with the land? The covenants of quiet enjoyment, warranty, and further assurance are said to be in futuro, and run with the land. 3 Washburn on Real Prop. 649. 159. WJiat is office grant ? It is a conveyance made by some oflBcer of the law, to effect certain purposes, where the owner is either unwilling or unable to execute the deeds necessary to effectually pass the title. 3 Washburn on Real Prop. 537 ; 4 Kent's Comm. 428, et seq. 160. WhMt is a public grant f It is that mode of conveyance by which the State transfers CHAP. III. J BEAL PKOPERTY. 121 realty. The deed of conveyance is usually termed a patent. 3 Washburn on Real Prop. 520. 161. What is the effect of a patent for land wrongfully issued f It is void. 2 How. 284 ; 3 Washburn on Real Prop. 526. 162. State the ten requisites of a laalid deed, as given hy Lord CoTce. 1. Writing ; 2. Parchment or paper ; 3. A person able to contract ; 4. A sulBcient name ; 6. A pers'on able to be con- tracted with ; 6. A sufficient name ; 7. A thing to be con- tracted for ; 8. Apt words required by law ; 9. Sealing : 10. Delivery. Co. Litt. 35 6/ 1 Wood, Conv. 125. 163. State object of statutes requiring deeds and other in- struments to be recorded ? The object of all such statutes is to give notice to all per- sons whom it may concern that such an instrument has been executed, and to perpetuate the memory of the facts they contain. By a fiction of law, the recording of certain instru- ments gives all persons cognizance of their existence, and they are not afterward permitted to deny that they have received such information. This artificial rule is known in the law as the doctrine of constructive notice, and has been adopted from motives of public policy. 25 Barb. N. Y. 635 ; 4 Kent's Comm. 182 ; 1 Johns. Ch. 394. 164. Who are intended to be protected by such statutes ? Subsequent purchasers ' in good faith. 1 Johns. Ch. JSr. Y. 394. '''' ». 165. State whether deeds are in all cases valid between the t. \^ m'iginal parties if not recorded. They are, if given in good faith and legally drawn. 10 Johns. 457 ; 3 Washburn on Real Prop. 591. 16 122 KEAL PROPEKTY. [CHAP. III. 166. State the purpose of requiring deeds to be acknowl- edged. Sucli acknowledgments are required in order that the deeds may be used as evidence, without further proof of their execution, and also to entitle them to be recorded. 3 "Wash- burn on Real Prop. 572 ; 1 Bouvier's Law Diet. 62. 167. State whetTier facts stated in certijieate of acknowl- edgment are conclusive. They are not. 17 Wend. 103 ; 1 Greenleaf's Ev., § 573, note 4. 168. State wlio has title to alluvion formed (a) on the sea- shore ; (&) in navigable rivers ; (c) in unnavigable rivers. {a) If it forms gradually, it belongs to the owner of the land adjoining the sea-shore ; but if the sea retreats suddenly and leaves a tract of land uncovered, it belongs to the State. (5) The State. (c) The owners of the bed of the stream upon which the alluvion formed. 3 Washburn on Real Prop. 142-154. 169. In conveying land, what is the effect of bounding it {a) by a highway y (J) by a river ? (a) The centre of the highway is presumed to be the boundary of such land. (6) If it be a navigable river, the property granted extends •CO low-water mark ; but if the stream is not navigable, its centre forms the boundary-line. 3 Washburn on Real Prop. 632-636. 170. Are married women estopped by their conveyances or covenants therein f " It may," says Washburn, " be laid down now as a gen- eral rule that the deed of a feme covert, unless joined by her husband, or unless authorized by statute in respect to her sole property, is void ;" and this being true, it necessarily follows that if the deed be void in its inception, its covenants would not bind by estoppel ; if, however, a married woman joins in the deed of her husband, which contains covenants of warranty CHAP. III.J REAL PBOPEETY. 123 and title, although such covenants are not binding upon her, they would nevertheless operate to estop her as to the title thereby granted. By statute in New York a married woman may covenant and convey as if she were a feme sole, and in most of the States the common law on this subject has been greatly modi- fied. 3 Washburn on Real Prop. 558, 564 ; IST. Y., Laws 1860, ch. 90, and Laws 1862, ch. 172 ; 3 Washburn on Eeal Prop., 3d ed., 318, note 3. 171. When is a grantor estopped to set up an after -ac- quired title ? When he grants an estate by a deed containing a covenant of warranty, and afterward acquires title to the same property. 3 Washburn on Real Pi'op. 475. 172. WJiat is the effect of grantor with warranty acquiring title after suit brought by covenantee ? If the suit be brought by the grantee for breach of the covenant of seizin, the grantor could not defeat the action by XJurchasing the title and tendering it to the grantee if the lat- ter refused to accept it. 2 Sand. Ch. 96 ; 3 Washburn on Real Prop. 475 ; 11 Ohio, 316. 173. State whether blanJcs in deeds of conveyance may be filled up by an agent of the grantor acting under parol autjiority. The better opinion is that such authority is sufficient. 53 Me. 90 ; Drury v. Foster, 2 Wall, U. S. 24. 174. State the effect of alterations, after delivery, in deeds of conveyance. If the alteration is material, it avoids the instrument alto- gether ; if immaterial, it is of no effect. 3 Washburn on Real Prop. 555 ; 51 Me. 78. 175. Upon whom rests the onus probandi to establish fraudulent alteration of a deed.? Upon the person asserting that there has been fraudulent 124 REAL PKOPEETY. [CHAP. III. alteration. 6 Gray, 439 ; 1 Greenl. Ev., § 564 ; 3 Washburn on Real Prop. 554-556. 176. What is essential to the delivery of a deed? The grantor must surrender all control of the instrument to the grantee, and the grantee must have unequivocally ac- cepted it and the estate it purported to convey. 3 Washburn on Real Prop. 577 ; 12 Wend. 107. 177. Can a married man convey a good title to real estate without his wife joining in the deed? At common law a married man could not convey a perfect title to an estate if his wife, for the purpose of extinguishing her right of dower in the property, did not join in the deed ; and this is still the rule in most of the States at the present time. 1 R. S. N. Y., 742, § 16 ; 3 Page, 483 ; 1 Washburn on Real Prop. 197, 198. 178. What is an escrow ? It is a deed which is delivered to a stranger, to be kept by him until the happening of some event or performance of some condition, upon which he must deliver it to the grantee, when the title will immediately vest. The escrow has no effect until the second delivery. 21 Wend. N. Y. 267 ; 1 Bouvier's Law Diet. 538. 179. What is the measure of damages in actions for breach of covenants of seizin and for quiet enjoyment ? In case these covenants are broken, the grantor must re- fund the purchase money, with interest, from the time (if evicted by the rightful owner) of eviction. 3 Caines, 111 ; Dimmic v. Lockwood, 10 Wend. IST. Y. 142. 180. Who are capaUe of holding lands in New York State ? " Every citizen of the United States is capable of holding lands within this State, and of taking the same by descent, devise, or purchase." An alien may also hold a conditional title to real estate if he signifies his intention to become CHAP. III.] EEAL PROPERTY. 125 a citizen in tlie manner prescribed by law. 2 B,. S. N^. Y. 719, § 8. 181. State the common-law rule as to the right of an alien to inherit real property, and mention hriefly the changes made by the New York statutes. At common law an alien cannot take lands by descent nor transmit them to others as his heirs. By statute of the above-mentioned State, it is provided that the heirs of any resident alien may take his property by descent. But to enable such heirs to hold a valid title to the property they must be already citizens of this country or have officially declared their intention to become such in the future. 7 Wend. 33, R. S. 1875, p. 32. 182. If A sells a farm to B for $5000, and B fails to record his deed, but occupies the farm, and A afterward sells the same farm to C, who buys in good faith, pays $4000, and records his deed, who has the best title, B or C? Note. — This question was propounded at an examination held by the Supreme Court (N. T.) examiners in January, 1878. This question is erroneously worded, as C could not have been a purchaser in "good faith" if B occupied the farm at the time of the sale to him. (See opinion of Allen, J., in Brown v. Volkenings, 64 ISI. Y. 82, 83.) The Few York Re- vised Statutes make void a conveyance not recorded only as against a subsequent purchaser in good faith, and for a valu- able consideration. As it appears from the question that C could not have been a purchaser in good faith within the mean- ing of the statute, he cannot take advantage of its provisions, and B's title consequently remains the superior. 3 Kern. 180 ; 2 Barb. Ch. 555 ; 2 Page, 300 ; 6 Wend. 213 ; 46 Barb. 212.' 183. In examining title to real estate, in whose office and for what liens would you search f In the register's office for deeds, mortgages, leases, agree- ments to sell, and all other incumbrances of record filed in his office affecting the title to the property in question, and in the 126 EEAL PEOPEETY, [CHAP. Ill, county cleric's oflBce for judgments of courts of record. Mechanics' liens : these are the principal liens to be searched for in examining a title, but it is not to be supposed that these are the only liens which may have to be searched for, or the offices indicated the only ones to which searches may be properly directed ; for an extended description of the prac- tice in such cases, see Gerard's Titles to Real Estate, 2d ed., 756-760. 1 84, Can a wife convey real property directly to her Tius- hand ? At common law such a conveyance is void, and the only ivay to effect a transfer is to do so indirectly, by way of use. 'Courts of equity, however, have of late declared that they will sustain and enforce a conveyance of real estate by deed from a husband to his wife, even if it be for a good considera- tion only. 44 K. Y. 27 ; 3 Washburn on Real Prop. 564 ; 3 Pick, 521. 185. WliicTi tobkes precedence, grantee of a judgment debtor "before entry of judgment, deed not recorded, or judgment creditor ? The grantee of the judgment debtor. The lien of the judgment in such a case only attaches to the property which the judgment debtor has at the time of the docketing of the judgment, and the fact that the deed was not recorded does not effect the question. 2 R. S. N". Y. 358, § 2 ; Gerard's Titles to Real Est., 2d ed., 668 ; 4 Duer, 342. 186 What is a will? The disposition of one's property, to take effect after death. Swinbourne, Wills, pt. 1, § 2 ; 3 Washburn on Real Prop. 679 ; 2 Bouvier's Law Diet. 665. ■* 187. When and for what purpose was the Statute of Wills passed ? It was passed in the thirty-second year of the reign of Henry VIII. (1540), for the purpose of permitting one "to give, depose, will, and devise, ... by his last will and testa- CHAP. III.] REAL PROPERTY. 121 ment, in writing, ... all Ms lands at Ms free will and pleas- ure." 32 Hen. VIII., oli. 1 ; 3 Washburn on Real Prop. 679 188. Oioe general requisites of a valid will. It must be written by tlie testator, or by Ms direction, and signed by Mm ; some States require it to be subscribed — that is, signed at the end.* The testator must show the will to witnesses, and declare it to be his. The witnesses must sign the wiU as such. 3 Washburn on Real Prop. 679-700 ; 2 R. S. (N. Y.) 63. 189. What is a sufficient attestation? The following attestation clause' contains all that is re- quired by the Revised Statutes of New York, and would suffice in most of the other States : Subscribed by the testator, in the presence of each of us (or, Acknowledged by the testator to each of us to have been subscribed by him), and at the same time declared by him to US to be Ms last will and testament ; and thereupon we, at the request of the testator, sign our names hereto as witnesses, tMs day of , 18 — , at . [Signatures and addresses of witnesses.] 2 R. S. N. Y. 63 ; 3 Washburn on Real Prop. 679-700. 190. Who is competent to maJce a wiU f The testator or testatrix must be of fuU age, and free from mental or other legal disability. In nearly all the States males may make valid wUls at twenty-one years, and females at eighteen. 3 Washburn on Real Prop. 685. 191. Could femes cowrts make valid wills at common law ? No, they could not ; but tMs has been changed by statute in most of the States, and the disability removed. 3 Wash- burn on Real Prop. 685. 192. What effect has the marriage of a feme sole wpon a will made iy her previous to her marriage f A will executed by an unmarried woman is revoked by 128 EEAL PROPERTY. [CHAP. Ill, her subsequent marriage. 3 Washburn on Real Prop. 698 ; 4 Kent's Comm. 027 ; 2 E,. S. N. Y. 64. 193. W7iat effect has tJie marriage of a testator and the birth of a child upon a will made by him previous to his mar- riage f * Such occurrences revoke the will «o far as the child is concerned, and he would inherit as if his father had died in- testate. 3 Washburn on Real Prop. 698 ; ch. 22 L. N". Y., 1869. 194. What is the effect of omitting to name children in a will? They take the shares which would have come to them by- descent had there been no wUl. 3 Washburn on Real Prop, Qage v. Gage, 9 Foster, 533 ; 4 Allen, 512. 195. What effect has the probate of a will ? It establishes the sufficiency of its execution, but deter, mines nothing beyond this. 38 Barb- 364. 196. At what time do wills speak ? At the death of the testator. 3 Washburn on Real Prop. 684, 685 ; 41 Barb. 50. 197. What is the difference between a will and a testament ? By a will one declares to whom he leaves his real, and by a testament to whom his personal property. 3 Washburn on Real Prop. 679 ; 2 Black. Comm. 12. 198. In a content over a probate of a will, are the declara- tions of the testator to one of the heirs-at-law admissible in evidence ? In ISew York State such evidence is inadmissible. 20 Hun, 166 ; Code of Civ. Pro., § 829. 199. Is the probate of a will in New York Stale conclusive as to the personal estate ? A decree admitting a will of personal property to probate CHAP. III.] REAL PBOPEBTT. 129 is conclusive as an adjudication upon all the questions de- termined by the surrogate, except as regards the validity and construction of the provisions of a will ; and in such a case the decree is conclusive only upon the petitioner and each party who was duly cited or appeared ; and every person claiming from, through, or under either of them. N. Y. Code Civ. Pro., § 2626 ; 26 Hun, 187 ; 91 JST. Y. 539. 200. As to real estate f A decree admitting a wiU to probate establishes pre- sumptively only the matters determined by the s arrogate. N". Y. Code Civ. Pro., § 2627 ; Estate of Pepoon, 22 Daily Reg., No. 9. 201. Upon the law of what place does the validity of a will of real and of personal property depend? A wUl of real property is governed by the lex loci ret sitce, and a will of personal property by the lex domicilii. Lynes v. Townsend, 33 N. Y. 561 ; Story's Conflict of Laws, §445. 202. A testator, domiciled in New Jersey, gam to his exec- utors the power of sale of all his real property ; his will was duly proved in New Jersey, and his executors took out letters testamentary tTiere ; can his executors convey the real property of the testator situated in New York ? Such a power of sale would not be sufficient to enable the executors to convey a valid title to the property. Ger- ard's Titles to Real Prop., 2d ed., 417. 203. Wha,t is a nuncupative will ? An unwritten will is known as a nuncupative one, and is only valid when made by a mariner at sea or by a soldier in actual service. 2 Black. Coram. 500 ; 2 R. S. IST. Y. 60. 204. How may a will he revoked ? It may be revoked in two ways : first, hy some overt act of the testator, as, for example, the making of another will or 17 130 PATENTS, [chap. IV. the destruction of the one already made ; or, secondly, hy implication, an instance of which would be the marriage of a feme sole after making a testamentary disposition of her estate. 11 Page, 453 ; Sweet v. Sweet, 1 Eedf. 451 ; 3 Wash- bum on Eeal Prop. 697-699. CHAPTEK IV. PATENTS, COPYRIG-HTS, AND TRADE-MARKS. SEC. 1. PATENTS. 1. What is a patent ? • It is the exclusive privilege granted by the Government to an inventor or discoverer of any new and useful art, machine, manufacture, or composition of matter, to make, use, and vend the same. PhUlips Pat. 1 ; Hilliard's Elmts. of Law, 49. 2. Can a principle he patented ? No, it cannot ; but if a person should discover a new method of applying the principle to practical use, he may patent such discovery. 2 Parsons on Contracts, 6 Ed. 257 g. g. 3. How is a patent obtained f The claimant applies to the Patent OflBce, filing a written petition containing a description of the invention in such terms as would enable a skilled workman to compound or construct it ; he must also state, in clear and concise terms, what he claims for the invention. This petition is signed by the person applying for the patent, and attested by two wit- nesses. Drawings of the invention must be furnished if pos- sible, and when it consists of a composition of matter, a suffi- cient portion of the ingredients must be furnished to suffice for a chemical test. When the invention is a mechanical con- trivance, a working model must be constructed. In all cases the applicant must make an affidavit to the CHAP. IV. J PATENTS. 131 efifect that he is the resident of a certain country, and believes himself to be the original inventor. The Commissioner of Patents, with whom this petition and affidavit are filed, then causes inquiry to be made in his office to ascertain if a patent for the invention should be granted ; if the examination dis- closes the right of the applicant to a patent, one is immediately granted him. Should the commissioner decide adversely to the claim, the applicant may appeal from his decision to the examiners-in-chief, the commissioner, the Supreme Court of the District of Columbia, and finally, if all else fail to decido in his favor, he may file a bill in equity, and thus have his right adjudicated upon in the regular course of judicial pro- ceeding. 2 Parsons on Contracts, 257 a ; U. S. Stat, at Large, vol. xvi., ch. 230. 4. What do file letters patent contain ? A description of the invention, and a grant of the right to make, use, and vend the same for seventeen years. U. S. Stat, at Large, vol. xvi., ch. 230. 5. What is a disclaimer ? This is a statement in writing, attested by a witness, in whicli the person applying for a patent states that he does not choose to claim certain matters set forth in , the original appli- cation. It is filed by the inventor when he finds that he has claimed more for his invention than he was justly entitled to. 7 How. U. S. 94 ; 14 Id. 380 ; 15 Id. 121. 6. WTiat is a caveat ? This is resorted to when the applicant, being a citizen or alien who has made oath of his intention to become a citizen, has made an invention or discovery which is not yet matured or perfected ; he therefore sets forth in writing his claim, and prays protection of his right until the invention is matured. The caveat is filed, and operates as a complete protection of his right for the period of one year. If within that time an application for a patent interfering with the caveat 4s made, notice is sent to the inventor, who must file the necessary papers to establish his invention within 132 PATENTS. [chap. IV. three months from the time of the posting of the notice. U. S. Stat, at Large, vol. xvi., ch. 230, § 40. 7. How may the patent right he lost ? (1) By abandonment ; (2) by forfeiture ; (3) by surrender ; (4) by infringement. 2 Parsons on Contracts, 6 Ed. 257 Jc. k. ; 6 Blatchf. 307. 8. Whai courts have jurisdiction of suits for infringe- ments of patents ? The courts of the United States have exclusive iurisdiction of all cases arising under the patent-right laws. U. S. R. S., § 711 ; Desty's Fed. Pro. 106-07. 9. What is an infringement of a patent right ? It is the unauthorized use or manufacture of an article already patented. The remedy in such a case would be an action at law to recover damages, or the filing of a bill in equity praying for an injunction to restrain the wrongdoer from further infringement. 2 Parsons on Contracts, 6 Ed. Wl Jc. k. ; Parker v. Huhne, 1 Pish. 54. SEC. 2. COPTEIGHTS. 10. What is a copyright ? It is a grant by the Government of the exclusive right to produce, print, and publish literary or artistic creations. 1 Hilliard's Elmts. of Law, 49. 11. Who may obtain a copyright ? The author or his assigns. A person may buy a manu- script before it is printed and then take out a copyright in his own name, if he be either a resident or citizen of the United States. U. S. Stat, at Large, vol. xvi , ch. 230. 12. How is it obtained ? The applicant for a copyright must deposit with the Librarian of Congress a copy, together with the title of the CHAP. IV. J PATENTS. 133 work if it be a book, or if it be a painting, statue, or other artistic production, a written description of the same, which must be sent by mail before publication ; and within ten days after publication he must send two copies of the book, or, if it be a work of art, a photograph of the same. The librarian makes an entry of these proceedings in a book kept for that purpose, termed a record. The author is also req[uired to make an entry prescribed by law upon the title-page or face of the work. If these, pro- ceedings are taken, a valid copyright is secured. U. S. Stat, at Large, vol. xvi., ch. 230. 13. May a copyright he assigned ? It may ; but the assignment should be recorded in the Office of the Librarian of Congress, as otherwise it will not be good as against a subsequent purchaser for value with- out notice of the assignment. 2 Parsons on Contracts, 6 Ed. 257 a. I. 14. What is meant by the "infringement'' of a copy- right ? Infringement is the unauthorized publication of a literary production which has previously been copyrighted. 2 Par- sons on Contracts, 6 Ed. 257 a. q. 15. Independent of any statutory provision, has an author any property in his literary productions ? At common law one, until publication, has an exclusive property in his literary productions, and consequently the primary right to their publication. 2 Parsons on Contracts, 6 Ed. 257 a. c. ; Millar v. Taylor, 4 Burr. 2378. SEC. 8. TKADE-MAKKS. 16. What is a trade-marTc ? A mark or emblem which a tradesman puts upon his goods to enable them to be distinguished from those of an- other manufacturer. If one person is the owner of a trade- 134 TOKTS, [chap. v. mark and anothef attempts to place a mark of the same char- acter upon his own goods, the former may obtain from a court of equity an injunction restraining the latter from using tlie trade-mark as his own. 2 Kent's Comni. 484 ; 2 Sandf. Ch. 586. 17. What constitutes an infringement of a trade-mark ? Such an imitation and use as would lead an ordinary ob- serve;r to mistake it for the original. 25 Barb. 416 ; 2 Parsons on Contracts, 6 Ed. 257 b. y. 18. Are trade-marJcs assignable? Yes, both at common law and by statute. U. S. Stat, at Large, vol. xvi., ch. 230, § 81 ; 2 Parsons on Contracts, 6 Ed. 2.57 b. q. 19. How may the right to a trade-mar Jc be enforced? At common law by a suit for damages against the in- fringer, or in equity by injunction directing one to discontinue its unauthorized use. U. S. Stat, at Large, vol. xvi., ch. 230, § 79 ; 2 Parsons on Contracts, 6 Ed. 257 h. u. 20. Were trade-marTcs Tcnown to the common law ? They were, and in this respect dififer from patents and copyrights, which were called into existence by statutory en- actment. Willard's Equity (Potter's ed.), 883, 403, 404. CHAPTEE V. TORTS. SEC. 1. NATITRE AND CLASSIFICATION OF TORTS. 1. What is a tort? A tort is a private or civil wrong or injury arising inde- pendent of any contract. Chase's X^otes on Torts, 2 Col. Jur. 137. CHAV. v.] TORTS. 135 2. Give a classification of torts with regard to the rights which they infringe. CLASSIFICATION OF EIGHTS AND TOETS. RIGHTS. TOETS. Absolute • iiite 1 Limb ^Assault and Battery. Body ) PekbonalSbocmtt.....! Health Nuisance. ( Malicious Prosecution. Eeputation -l Libel. ( Slander. Peksonal Libektt False Imprisonment. f "Violations of incidental rights. Nuisance. Injury by Trespass. U«al nSISScc. .Pktvatb Propbrtt . . . , -| Injury by Fire. Personal J Trespass. L i Conversion. f Pdblic i Arising from relation of public officers to the com- J Violation of official ■■■■) munity 1 duty. Relative \ i ArUiTiirfrnm I Husband Parent Guardian Master (Abduction. |PmTATE.-^-*"f'5S"omj ^jjg ^^3 j,^^ ^^^ .{Enticement. I I reiaiionor j ^jj^ ^.^^^ ^^^^ Servant ( Seduction. Statxttoby Violationof. Indirect modes of violating different classes of rights. ...... i Negligence. ^ I Fraud and Deceit. Chase's Notes on Torts, 2 Col. Jur. 144. 3. Define the words injuria and damnum as used in the law of torts. The significance of the word injuria, or injury, is strictly confined to violations of legal rights, while the term damnum is used by way of distinction to denote damage, actual loss, not necessarily pecuniary, but appreciable by a jury as affording a basis for something more than ordinary damages. The dis- tinction between the words in legal application must be noticed with more particularity on account of the confusion between them in popular use. Chase's Notes on Torts, 2 Col. Jur. 137. 4. In what manner are torts similar to contracts ? Torts resemble contracts in that they are private acts. 1 HiUiard's Torts, 3. 5. How do torts differ from contracts ? Torts may be distinguished from contracts by these quali- ties : that partie.T jointly committing torts are severally liable, 136 TOETS. [CIIAP, V. without the right to contribution frotri each other ; that the death of either party destroys the right of action ; that per- sons under personal disabilities to contract are nevertheless liable for their torts. 1 Hilliard's Torts, 3 ; 24 Conn. 392. 6 . What resemblance have torts to crimes ? Torts resemble crimes in that they infringe the same rights. 3 Shars. Blackst. Comm. 122. ■^6*- 7. How do torts differ from crimes f To render a person liable criminally a wrongful intent must be proven, whereas in the law of torts it is rarely, if ever, necessary to prove this in order to fix the liability. A tort is said to be a private wrong, while a crime is a public one ; but this distinction, although a correct one, does not pre- vent the same act from being considered both a tort and a crime, a familiar instance of this being the case of an assault and battery. 3 Shars. Blackst. Comm. 122. 8. When are causes of action in tort assignable ? When they are not of a strictly personal nature ; and even then, if the cause of action has been reduced to a judgment, it may be assigned. 2 Kern. 622 ; 8 Abbot's N. C. 224 ; N. Y. Code of Civ. Pro., § 1910. 9. W7iat torts are also crimes ? Assault and battery, trespass, negligence, libel, and many others. 3 Shars. Blackst. 122 ; Addison on Torts, Harvd. ed., 40, 69 ; 2 Bouv. Law Diet. 800. 10. What is the general rule as to a wrongful intent being necessary as a ground of liability in tort f G-enerally an intent to commit the wrong or injury need not be proven. 3 Shars. Blackst. 122 ; 1 Bos. & P. 191. 11. State the principal lands of torts that form exceptiom to the rule that it is not necessary to prove a wrongful intent. Malicious prosecution, libel, slander, and fraud. Addi- son on Torts, Harvd. ed., 33, 243, 317. CHAP, v.] TOETS. 137 12. When will proof of actual damage he necessary as a ground of recovery in a tort case ? In that branch of the law of slander known as " slander with special damage," actual, pecuniary, or temporal damage must have resulted to enable one to recover. Chase's Notes on Torts, 2 Col. Jur. 156 ; 19 Wend. 302. 13. Upon what principle is the right of recovery sustained in otJier cases ? Upon the principle that everj^ infraction of a right im- ports a damage, and this is true, ' ' though it does not cost the party injured one farthing." Addison on Torts, Harvd. ed., 9 ; Ashhy v. WJiite, 2 Ld. Raym. 954. 14. JTow may the right to recover in an action for tort be extinguished f By the expiration of the time within which an action for •the wrong done must be instituted. The statute of limita- tions in such cases is generally from one to six years. N". Y. Code of Civ. Pro., §§ 382-85; SEC. 2. TORTS AFFECTING THE PEESON. 15. What is the difference between an assault and a bat- tery ? An assault is an offer or attempt to do personal violence to another, accompanied by circumstances indicating an intent, coupled with a present ability, of actually inflicting such violence. It thus has three elements : flrsf, the offer or at- tempt ; secondly, the actual or indicated intent ; thirdly, the actual or apparent present ability. A battery is the actual wrongful infliction of personal violence. Chase's Notes on Torts, 2 Col. Jur. 137. 16. What is mayhem ? At common law it was any injury done to another which would disable him in fighting, but by statute it now generally includes disfigurement. 4 Blackst. Comm. 205 ; 7 Mass. 248. 18 138 TORTS. [chap. v. 17. Is it necessary, to enable one to recover for the injury committed, that the assault should be immediate or effected directly by the person liable? No, it is not necessary. Addison on Torts, Harvd, ed., 216. 18. When is an assault justifiable ? When it is committed in self-defence or in the defence of one s property, real or personal. Addison on Torts, Harvd. ed., 217-20 ; 3 M. & W. 150 ; 1 C. & P. 6. 19. J. met B, and laying his hand upon Ms sword in a threatening manner, exclaimed : '■' If it were not assize time, I would not taJce such language from you! " Bid the con- duct of A amount to an assault f No, it did not ; for the language nsed by A showed that he did not then intend to inflict personal violence upon B. See the first question under this section ; also Tubermlle v. Savage, • 1 Mod. 3. 20. What is meant by the term '■'■false imprisonment'''' ? False imprisonment is illegally detaining the person of another. Such imprisonment may be either actual or con- structive. Addison on Torts, Harvd. ed., 222 ; Warner V. Biddeford, 4 C. B. n. s., 180, 206. 21. When may an arrest be made without a warrant at common law ? "If treason or felony be done," says Lord Coke, "and one hath just cause of suspicion, this is a good cause and vrar- rant in law for him to arrest any man ; but he must show in certainty the cause of his suspicion, and whether the suspicion shall be just or lawful shall be determined by the justices in an action for false imprisonment brought by the party grieved, or upon a habeas corpus''' In order to justify an arrest by a private individual he must not only make out a reasonable ground for suspicion, but he must prove that a felony has actually been committed by some person or other, and that the circumstances were CHAP, v.] TOKTS. 139 sncli that any reasonable person, acting without prejudice or passion, would have suspected that the plaintiff was concerned therein. There are also some cases of misdemeanor, such as a breach of the peace, where a private person may arrest the wrongdoer if the unlawful act be committed in his presence. 2 Coke Inst. 52 ; Tindal, C. J., Allen v. Wright, 8 C. & P. 526 ; Hawkins P. C. 2 c. 12, § 20 ; Addison on Torts, Harvd. ed., 225, 226 ; 40 N. Y. 463. 22. State what is a general warrant of arrest, and whether such a warrant has any legal force in the United States. A general warrant of arrest is one which does not particu- larize the place to be searched and the persons or things to be seized. Such warrants are prohibited by the United States Constitution. 4 Amendt. U. S. Const. ; 6 Binn. 316 ; 18 How. 71, 272. 23. In what cases may an arrest be made without warrant by an officer ? In cases of felony an officer may arrest on reasonable suspicion that the person arrested committed the crime , In cases where minor crimes, called misdemeanors, have been committed, a constable or other officer performing similar functions may generally, upon reliable information, arrest the suspected parties without having a warrant issued against them. 2 Addison on Torts, Harvd. ed., 226-28 ; 29 How. Pr. 473 ; 3 Wend. 384. 24. When is an informer liable for false imprison- ment ? When one is imprisoned because of the false oath of the informer. Addison on Torts, Harvd. ed., 232 ; 1 Campb. 188. 25. When is an officer liable for false imprisonment f When he arrests without his jurisdiction, or when he wrongfully detains a prisoner who should be discharged. Withers v. Henley, Cro. .Tac. 379 ; Addison on Torts, Harvd. ed., 225 ; 2 Wend. 611 ; 1 Euss. on Crimes, 716. 140 TOETS. [chap. V. 26. When is a private individual liable for false impris- onment ? When he uses the machinery of the law improperly. 17 Barb. 179 ; 11 Johns. 444 ; Addison on Torts, Harvd. ed., 226, 227. 27. What is malicious prosecution ? Malicious prosecution is the unwarrantable prosecution of another by and according to the rules and forms of the law. Addison on Torts, Harvd. ed., 241 ; 1 Wend. IST. Y. 345 ; 11 Conn. 582. 28. What must he proved to sustain an action for mali- cious prosecution ? To sustain an action for malicious prosecution, the plain- tiff must prove four things : First, that the defendant instituted or instigated the prose- cution. Second, that he did it with malice. Third, and without reasonable or probable cause. Fourth, that the previous proceeding, termed malicious, has terminated, and that the termination was in favor of the de- fendant therein, who is plaintiff in the second suit. Chase's Notes on Torts, 2 Col. Jur. 153 ; 109 Mass. 608 ; 36 Conn. 56 ; 36 N. Y. 11. 29. What is meant by " malice " in the law of malicious prosecution f Malice means malice in fact, and is a question for the jury. They may find its existence from evidence showing lack of probable cause, but are no t absolutely bound to do so. Whether . probable cause existed or not is a question of law for the court, if the facts are uncontroverted. If the facts are uncer- tain or in dispute, it is a mixed question of law and fact. Chase's Notes on Torts, 2 Col. Jur. 153, 154. 30. WJiat is ^^ probable cause''"' in the law of malicious prosecution ? The '^probable cause''' is defined as a reasonable ground CHAP. T.J TOKTS. 141 of suspicion, supported by circumstances sufficiently strong ia themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged. Chase's Kotes on Torts, 2 Col. Jur. 154 ; Foshay V. Ferguson, 2 Denio, 617 ; 62 N. Y. 19. 31. WTiat is malicious conspiracy f Malicious conspiracy is a combination of two or more persons to commit some wrong. In criminal law conspiracy is an important form of offence, and is there used in its natural and usual sense. If two persons have been indicted and put on trial, and one is acquitted, the other must be acquitted also ; for in criminal law one person cannot make a conspiracy. In criminal law the mere act of conspiracy is deemed to be a criminal offence unless some statute has modified this rule. In the civil action for conspiracy the rule is entirely different. Here, although it is called a conspiracy, if one is acquitted you can hold the other, the real gist of the offence being the malicious wrong. A mere act of conspiracy is not sufficient ; there must be not only the malicious wrong, but also the damage and detriment to the other party. Chase's Notes on Torts, 2 Col. Jur. 154 ; Addison on Torts, Harvd. ed., 240 ; 2 Gray, 126 ; 25 Cal. 555. 32. WTio may recover damages for seduction ? At common law only the person who was entitled to the female's services, and who was consequently supposed to have sustained damage by reason of her illness, could recover in an action for seduction. The female could not recover, because she was a consenting party ; but this rule has been generally modified by statute so as to enable her to recover also. Wait' s Acts. & I)efs., vol. v., p. 662 ; 26 Barb. N. Y. 615.; 9 Bush. Ky. 624. 33. Wfiat is the liability of judicial officers for injuries occasioned hy the exercise of their judicial functions ? If the judicial officer exceed his powers, he is liable to those who are injured by his extra-judicial acts ; but if he does not act beyond his jurisdiction he is not liable, and this 142 TORTS. [chap. V. is true even though, his conduct should indicate malice. 1 Mod. 184 ; 3 Den. 317 ; 9 Johns. 39^ ; Addison on Torts, Harvd. ed., 263. 34. What is the liability of ministerial officers for their acts ? Ministerial officers are liable for all damage resulting from their misfeasance or nonfeasance to the party injured thereby. Addison on Torts, Harvd. ed., 272 ; 34 JST. Y. 389 ; 37 Hun, 360 ; 96 N. Y. 428, 35. What are the dtoties of a sheriff upon a writ of fi. fa.f On receiving a writ of fi. fa. he must endeavor to ascer- tain what goods the execution debtor possesses within his bailiwick, and seize them, and sell them to the best advantage. If he departs from this rule in any particular he will be responsible to the party damaged thereby for the loss which the latter sustains. 16 Q. B. 239 ; Pitcher v. King, ^ Q. B. 767 ; Addison on Torts, Harvd. ed., 273. 36. May a sheriff break open the outer door of a duelling- house in the execution of legal process ? In the execution of civil process, a sheriff has not the power to do so ; but in criminal cases he may, if refused ad- mittance. Addison on Torts, Harvd. ed., 277 ; People v. Hub- lard, 24 Wend. 369 ; 3 Bos. & P. 223. SEC. 3. TORTS AFPECTING THE CHARACTER OR REPTTTATIOW. 37. Define libel. Libel is defamatory matter addressed to the eye. Chase's Notes on Torts, 2 Col. Jur. 1,54 ; Addison on Torts, Harvd. ed., 312. 38. What is slander ? Slander is defamatory matter addressed to the ear. Chase's Notes on Torts, 2 Col. Jur. I.'il4 ; Addison on Torts, Harvd. ed,, 312 ; Janson v. Stuart, IT. R., 748. CHAP, v.] TORTS. I43 39. Is slander a crime ? Slander is not a crime, while libel is both a tort and a crime ; a tort on the ground of injury to reputation, a crime because it tends to provoke a breach of the peace. Chase's Notes on Torts, 2 Col. Jur. 154 ; Addison on Torts, Harvd ed., 313. 40. What is meant hy publication in the law of libel and slander f Publication of libel or slander consists in making the def- amation known to some person or persons other than the de- fendant. In slander or libel civilly, considered, it must be made known to some person or persons other than the defamed, as otherwise it could not affect his reputation. In libel crimi- nally considered it is sufficient to make it known to the per- son defamed, as it tends to provoke a breach of the peace. Chase's Notes on Torts, 2 Col. Jur. 1,')4 ; 2 Hun, ^Id ; 67 Barb. 124. 41. Into what two great classes may oral defamation be divided ? 1. Slander per se, which requires no proof of special damage to maintain the cause of action. 2. Slander with special damage, which does require such proof. Chase's Blackstone, 679, note 4. 42. How many forms has slander per se ? Slander per se has three forms : First, charges of crime involving moral turpitude. This is the usual form of statement, and is recognized by most of the State courts ; but in England the charge of any crime is slander per se, and some of the American cases are to the same effect. Crimes involving moral turpitude would include felonies, other offences involving fraud, etc. The charge of removing a neighbor's landmark has been held enough in New York, but a charge of assault and battery would not in- volve moral turpitude, nor would a charge of adultery be slander per se, except in those States where adultery is made a crime by statute. 144 TOETS. [chap. v. Second, charges of contagious disease unfitting one for society. Thus, the charge of having leprosy or any venereal disease vrill be deemed sufficient, but not a charge of having had such diseases. Third, charges tending to injxire a man in his office, trade, occupation, profession, or employment. Actual damage is not required ; the tendency of the charge to cause an injury is enough. Incases where special damage must be proved, the damage must be pecuniary or temporal, and most be a proximate con- sequence of the charge. Chase's Notes on Torts, 2 Col. Jur. 154 ; 11 Q. B. D. 407 ; 19 Wend. 302 ; Addison on Torts, Harvd. ed., 346. 43. In actions for damages for assault and battery, or for slander or libel, are the parties entitled by the laws of New York to a trial by jury ? The right of trial by jury in all such cases as those men- tioned in the question is an absolute one, secured by the State constitution and statutes to all parties to the action. "N"ew York Constitution, article i., §§ 2-8 ; New York Code of Civ. Pro., § 968 ; 2 Abb. N. S. 29. 44. In actions for libel and slander, what are the de- fences which may be interposed ? In the case of a civil action for libel the truth of the de- famatory charges uttered is and always has been a good de- fence. In criminal libel the common-law rule was that the truth of the libel could not be urged in justification ; this lat- ter rule has, however, been altered in many of the States, and the truth of the statements allowed to be shown. In an action for slander the truth of the slander is always a good defence. ' 3 Tenn. Rep. 428 ; People v. CrosweU, 3 Johns. Cas. 408 ; Constitution of New York, article i., § 8 ; 3 Barb. 220. 45. What matters may be alleged in mitigation in crimi- nal actions for libel ? The plaintiff's bad character may be given in evidence, in CHAP, v.] TOETS. 145 mitigation, in connection with a justification. King v. Root, 4 Wend. 113 ; Foot v. Tracy, 1 Johns. 46. 46. What are ^^ privileged communications^'' in the law of libel and slander ? Privileged communications in the law of libel and slander are defamatory communications held excusable because made in the performance of some legal, moral, or social duty, or the legitimate protection of one's business interests, or for other like causes. They are of two classes : 1. Those absolutely privileged. 2. Those conditionally privileged. Chase's N'otes on Torts, 2 Col. Jur. 154. 47. Sow do absolutely privileged communications, in the law of libel and slander, differ from those which are condi- tiunally privileged ? In the first class the privilege exists, even though the statements be made with express malice. This includes state- ments, whether written or oral, made in legislative and judicial bodies. In the second class, if actual malice can be proved it does away with the privilege. Addison on Torts, Harvd. ed., 3.'i8 ; Chase's Notes on Torts, 2 Col. Jur. IM, im. SEC. 4. TOETS AFI'ECTING PEOPEETT. , 48. Define trespass. Trespass is a wrongful injury or a wrongful taking of property. Chase's Kotes on Torts, 2 Col. Jur. 174. 49. What is meant by the term " conversion''' in the law of torts ? Conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights. Every unauthorized tak- ing of personal property and all intermeddling with it beyond the extent of the authority conferred, in case a limited au- thority has been given, with intent to so apply and dispose of 19 146 TORTS. [CHAP. y. it as to alter its condition or interfere with the owner's do- minion, is a conversion. Leverty v. Snethen, 68 New York, 522 ; Frome v. Dennis, 45 N". J. Law Kep. 515. 50. Is a wrongful intent necessary to constitute a case of conversion ? A wrongful intent is not a material ingredient in conver- sion. Thus, if one purchase goods from a thief innocently and ia good faith, and afterward sell them, he is liable to the owner even withoat demand. Please v. Smith, 61 New York, 477 ; Chase's Notes on Torts, 2 Col. Jur. 174. 51. If an agent parts with the property of his principal in a way or for a purpose not authorized, is he liable for con- version ? He is ; but if he parts vdth it in accordance with his au- thority, although at a less price, or if he misapplies the avails, or fakes inadequate or insiifficient security, he is not liable for a conversion of pr'operly, but only on an action on the case for misconduct. Leverty v. Snethen, 68 New York, 523 ; Haynes v. Patterson, 95 New York, 1 ; Chase's Notes on Torts, 2 Col. Jur. 174. 52. May one part owner sue another for conversion ? One part owner may sue another for conversion in case of, a destruction of the property, or if the latter has sold the property as exclusively his own. DycTsman v. Valiente, 42 New York, 549 ; Chase's Notes on Toxts, 2 Col. Jur. 174. 53. Wliat is a nuisance f A nuisance is any unreasonable and unwarrantable ex- ercise by a man of his own rights of property or otherwise, tending to injure another man in the use of his own. Chase's Notes on Torts, 2 Col. Jur. 155. 54. What is the difference between a public and a private nuisance ? A private nuisance is one which affects the individual. CHAP. V.J TOUTS. 147 while a public nuisance is one which is common to the public and special to none. 3 Blackstone's Comm. 215 ; 1 Hawkins' PI. Cr. 197 : 53 New York, 152. SEC. 5. INDIKECT MODES OF VIOLATING DIFFERENT CLASSES OP EIGHTS. 55. WTiat is negligence f 'N'egligence is that want of due diligence which causes injury to another. 3 East, 596 ; 3 Blackstone's Comm. 415 ; 6 Mass. 134. 56. State the facts of ' the case of Thomas v. Winchester, and the principle decided by that case. A dealer in drugs carelessly labelled a deadly poison as a harmless medicine, and sent it, so labelled, into the market. The retail dealer who bought the poison, being ignorant of its real nature, sold the same to an innocent purchaser as a harmless medicine, and he administered it to one who was ill, and thereby caused the latter to be " greatly injured, so that her life was despaired of," etc. The court held that the original vendor was liable to all persons who, without fault on their part, were injured by using the poison in consequence of its being improperly labelled. " The liability of the dealer in such a case arises, not out of any contract or direct privity between him and the person injured, but out of the duty which the law imposes upon him to avoid acts in their nature dangerous to the lives of others. He is liable, therefore, though the poisonous drug with sach label may have passed through many intermediate sales be- fore it reaches the hands of the person injured. " Where such negligent act is done by an agent, the principal is liable for the injury caused thereby. Thomas v. Winchester, 6 New York, 397 ; cited, 6 Abb. N. C. 270 ; 61 Barb.' 91 ; 51 New York, 497 ; 44 How. Pr. 145 ; 11 Hun, 357. Approved and followed 89 New York, 477, 478. 148 SHIPPING AND INSURANCE. [OHAP. VI. 57. WJiat is the principle governing the use of your own possessions with reference to those of your neighbor's? " Every man must so use his own as not to injure an- other's." Coke, 3d Inst. 201; Broom's Legal Maxims, 3d liond. ed., 331. CHAPTER VI. SHIPPING AND INSURANCE. SEC. 1. THE LAW OF SHIPPING. 1. What is meant by admiralty law ? It is that system of jurisprudence which governs the ad- ministration . of justice in maritime affairs. 2 Parsons' Mar. Law, PtQQ ; 12 Wheat. 611. 2. What court in this country has admiralty jurisdiction ? The court of original admiralty jurisdiction in the United States is the United States District Court. From this tribunal causes may be removed in certain cases to the Circuit, and finally to the Supreme Court. 2 Parsons' Mar. Law, 508 ; U. S. R. S., § .'563 ; Sloop Betsey, 3 Dall. 16. 3. In what different ways may certain maritime rights be enforced or wrongs redressed ? (1) In rem in the United States courts. (2) In personam in the United States courts. (3) In personam in the State courts. Mackenzie v. Wil- son, 7 Hill. Q.^ ; D wight's Notes on Shipping, 2 Col. Jur. 3.54. 4. What is the difference between "■registry'''' and '■'■enrol- ment " in the law of shipping ? Under the acts of Congress a ship engaged in foreign com- merce must be "registered;" one engaged in the coasting CHAP. VI.J SHIPPING AND INSURANCE. 149 trade must be "enrolled;" one in the fisheries must be "licensed." Kegistration in the law of shipping is of two kinds : (1) International. (2) Municipal. The first is to give the ship an international character, the second to protect purchasers and holders of liens. The certifi- cate of registry is issued by the collector of the district com- prehending the port to which the ship or vessel belongs. Dwight's Notes on Shipping, 2 Col. Jur. 353 ; U. S. R. S., §§ 4131-98 ; 4192-96. 5. Describe part-owners of ships, and distinguish them from partners. " A part-owner," says Parsons, " is one who owns a defi- nite part or portion of the whole ship ; and of this part his ownership is exclusive. It follows, therefore, that part-own- ers of a ship do not thereby become partners." And it may be added that a further distinction arises from the fact that one part-owner may sell his share without affecting the rights or liabilities of the other owners ; if, on the other hand, a partner should dispose of his share in the partnership it would cause a dissolution of the firm. 2 Parsons on Contracts, 266, 267. 6. What is a sMp^s husband ? A ship's husband is employed by the owners of a vessel to take care of the ship and of earnings. He is usually a part- owner, and is regarded as the general agent of the other owners, as far as contracts made in reference to the ship are concerned. 2 Parsons on Contracts, 268 ; Turner v. Burrows, 8 Wend. 144 ; Gould v. Stanton, 16 Conn. 12, 23. 7. Suppose a pilot, by his unsMlfulness, injures a third person, is the owner of the ship liable for the damage sus- tained ? The English courts hold that he is not liable, on the ground that it is not a case of master and servant. This rule would be 150 SHIPPING AND INSTTBANCE. [CHAP. VI. varied, however, where the pilotage was not strictly com- pulsory, as in the Suez Canal. On the other hand, the Supreme Court of the United States holds that the owner is liable even though the pilotage be compulsory, on the general rule of the Roman law that every one must so use his own property as not to injure another, and that this rule is firmly rooted in the law of admiralty. The Royal Charter, L. P. 2 Adm. 262 ; The Guy Mannering, L. R. 7 Prob. Div. 133 ; The China, 7 Wal- lace, 53 ; D wight's Notes on Shipping, 1 Col. Jur., No. 2, p. 5. 8. Has the master of a ship power to hind the owner when he signs a bill of lading and the goods are not on toard ? There is at present a considerable conflict of authorities upon this point. The English courts hold that the owner is not liable, and this view is also taken by the United States courts. The New York courts, on the otlier hand, adopt a different view, and hold that it is a case arising under the law of agency, and that the owfler would be liable on the principle that he who reposes the confidence must sustain the loss. A recent case in the United States Supreme Court distinguishes the English cases from those decided in New York, alleging that in the latter cases the bills of lading were signed by agents of corporations, and that there is a different rule where the master is the agent of an individual. This view is unsat- isfactory, as it does not turn on any principle. Grant v. Nor- way, 10 C. B. 665 ; 18 How. U. S. 182 ; Armor v. B. B. Co., 65 New York, 111 ; Pollard v. Vinton, 105 U. S. 7 ; Dwight's Notes on Shipping, 1 Col. Jur., No. 2, p. 3. 9. What is freight in maritime law, and when is it earned ? It is the sum paid by the shipper for the carriage of his goods. It is also at times applied to designate the article car- ried. It is said to be earned when the goods are delivered at the port of destination. But this, although the general rule, is not without its exceptions. 1 Pet. Adm. 206 ; 2 Johns. 327 ; 3 Johns. 321 ; Abbot, Shipp. 272. CHAP. VI.] SHIPPING AND INSTJRAWOE. 151 10. Wliat is a bill of lading ? A bill of lading is a receipt for goods delivered and an agreement to carry them to a specified destination. 2 Parsons on Contracts, 289 ; Putnam v. Tillotson, 13 Met. 517. 11. Give the usual form of a Mil of lading. See ante, page 65 ; Dwight's Notes on Shipping, 1 Col. Jur., No. 2, p. 3. 12. W7iat objection is there to signing bills of lading in sets of three ? It might enable a defrauding party to assign a second bill, and thus materially injure the actual consignee. 7 Appeal Cases, 573 ; Dwight's Notes on Shipping, 1 Col. Jur., No. 2, p. 4. 13. Define bottomry. It is by one legal authority defined as " a contract in the nature of a mortgage, by which the owner of a ship, or the master as his agent, borrows money for the use of the ship, and for a specified voyage, or for a definite period, pledges the ship (or the keel, or bottom, of the ship) as a security for its repayment, with maritime or extraordinary interest, on ac- count of the extreme risks to be borne by the lender ; it being stipulated that if the ship be lost by any of the perils enu- merated in the contract, the lender shall remain unpaid." Abbott, Shipp. 117-31 ; 1 Bouv. Law Diet. 316. 14. State the distinctions between a mortgage and a bot- tomry bond. The principal differences are two in number : First, a mortgage is a conditional sale, the title passing to the mort- gagee ; a bottomry bond merely creates a lien on the ship, the title remaining in the obligor. The former is therefore a branch of the law of sales, whUe the latter may be said to be a species of bailment. Second, a mortgage is a land contract ; bottomry, a marine contract. Dwight's Notes on Shipping, 1 Col. Jur., No. 2, p. 3 ; 3 Id. 354. 152 SHIPPING AND INSURANCE. [CHAP. VI. 15. As between two competing bottomrp bonds, wMeh Ms the prior right of satisfaction f Generally, the one whicli was given last. D wight's Notes on Shipping, 3 Col. Jur. 3o4. 16. What is a respondentia bond ? It is similar to a bottomry bond in its nature, and differs from it only in the following particular : a bottomry bond is a security for a loan made upon the ship, while a respondentia bond is the evidence of a lien upon the cargo. 1 Abbot, Shipp. 154 ; 1 Parsons' Mar. Law, 437. 17. In the sale of a ship, does the ownership in her ballast pass to the vendee f As a general rule, the title to the ballast is not transferred by a conveyance of the " ship." Dwight's Notes on Ship- ping, 1 Col. Jur., No. 2, p. 3. 18. What is a lien in admiralty f It is a claim which certain persons have upon a ship as security for a debt due to them by the owners of the vessel. It differs from other liens in the fact that possession by the creditor is not necessary to its existence. It is said to foUow the ship wherever she may go. Among the persons who are entitled to admiralty Hens may be mentioned shippers of goods, master, seamen, material men, ship's hiisband, the owner of the vessel, and those whose vessels are injured by collision. 2 Parsons on Contracts, 286, 338 ; 7 How. 729 ; 12 How. 272 ; 1 Parsons' Mar. Law, 850. 19. Who are material men f Those persons who are engaged in buUding or repamng ships, or who furnish them with the articles which they re- quire to enable them to prosecute their voyage. 3 Hagg. Adm. 129 ; 19 How. 359 ; 1 Parsons' Mar. Law, 492, n. 20. State if there be any distinction as to the lien of mate- rial men between domestic and foreign ships. Foreign ships. CHAP. VI.] SHIPPING AND INSURANCE. 153 ^ The lien follows the ship, and possession is not necessary to its existence. Domestic ships. Possession is essential to the existence of the lien. The General Smith, 4 Wheaton, 438 ; The Brig President, 4 Wash. C. C. 4^'S ; 2 Parsons on Contracts, 6 Ed. 394, note i. 21. Describe the contracts of qfreigMment, and state the liens that may accompany it. It is the contract by which a ship-owner agrees to carry the goods of others to a certain destination. If the ship- owner does not observe the terms of the contract the shipper has a lien upcjn the ship equal in value to the amount of dam- age which he has sustained in consequence of its non- observance. If the goods are carried according to the terms of the agreement, the ship-owner has a lien upon them equal in amount to the value of the freight earned. 2 Parsons on Contracts, 286, 287 ; 12 How. 272 ; 2 Sumner, 601. 22. Upon the sale of a ship before she has discharged her cargo, who is entitled to the freight which she has earned ? A transfer of a ship before delivery of her cargo transfers the accruing freight to the vendee or his. assigns. Dwight's Notes on Shipping, 2 Col. Jur. 354 ; Lindsley v. Gibbs, 22 Beavan, 522. 23. WJiat is salvage f Salvage has two distinct meanings : First, when it is used in the law of marine insurance, and, secondly, when applied to the law of shipping. In the first instance it signifies that which is saved from wrecked prop- erty, whether it be the ship or her cargo. In the second in- stance it means the compensation which is earned by persons who have voluntarily assisted in saving a ship or her cargo from destruction. 2 Parsons on Contracts, 315. 24. What facts must have concurred to entitle one to sal- vage earned ? There must have been, first, a marine peril ; second, vol- 20 154 SHIPPING AND INSUEANCE. [CHAP. VI. untaxy service ; third, success. 2 Parsons on Contracts, 315. 25. What is general average ? When the property of one of the persons interested in the ship or her cargo is voluntarily sacrificed in order that the in- terests of the other owners may be preserved, the owner of the property thus destroyed is entitled to be indemnified for his loss by the ovs^ners of the interests saved, each contributing according to the value of his interest in the property pre- served. This equitable mode of adjustment is called general average. D wight' s ISTotes on Shipping, 1 Col. Jur., No. 2, p. 4 ; Nelson v. Belmont, 21 New York, 36 ; Barnard v. Adams, 10 How. U. S. 270 ; 2 Arnould on Ins., Perkins' ed., § 338. We give the following extract from Abbot on Shipping, as Illustrative of the manner of adjustment of general average losses : " It is necessary, in the first place, to take an account of the several losses, ■which are to be made good by contribution ; in the second place, to take an account of all the articles that are to contribute— in which must be included the value of the goods, etc., thrown overboard, for otherwise the proprietors of those goods will receive their full value, and pay nothing toward the loss. But as this will be most easily understood by an example in figures, I propose the following case, wherein the reader will suppose that it became necessary, in the Downs, to cut the cable of a ship destined for Hull ; that the ship afterward struck upon the Goodwin, which compelled the master to cut away his mast and cast overboard part of tlie cargo, in which operation another part was injured ; and that the ship, being cleared from the sands, was forced to take refuge in Eamsgate Harbor to avoid the further effects of the storm. AMOUNT OP LOSSES. Goods of A cast overboard £500 Damage of the goods of B by the jettison 200 Freight of goods cast overboard 100 Price of a new cable, anchor, and mast £300 Deduct one third 100 200 Expense of bringing the ship off the sands SO Pilotage and port duties going into the harbor and out, and com- mission to agent who made the disbursement 100 Expenses there .♦. 25 Adjusting this average 4 Postage , X Total of losses £1,180 OMAP. VI. J SHIPPING AISTD USTSURANCE. 155 TALTTE OP AETIOLES TO OONTELBUTE. Goods of A oast overboard £500 Sound va'ue of the goods of B, deducting freight and charges 1,000 Goods of C 500 Goods of D - 2,000 Goods of E 5,000 Value of the ship • 2,000 Clear freight, deducting wages, victuals, etc 800 Total of contributory value £11,800 "Then £11.800 : £1180 : : £100 : £10 ; that is, each person will lose 10 per cent upon the value of his interest in the cargo, ship, or freight. Therefore A loses £50 B 100 C 50 D 200 , E 500 The owners 280 Total, £1,180 which is the exact amount of the losses. " Upon this calculation the owners lose £280 ; but they are to receive from the contribution £380 to make good their disbursements, and £100 more for the freight of the goods thrown overboard, or £480 minus £280. They therefore are actually to receive £200 A is to contribute £50, but has lost £500 ; therefore A is to re- ceive 450 B is to contribute £100, but has lost £200 ; therefore B is to re- ceive ^OO Total to be actually received £750 " On the other hand, C, D, and E have lost nothing, and are to pay as before — viz. -. Q £50 T>. E. 200 500 Total to be actually paid *750 which is exactly equal to the total to be actually received, and must be paid by and to each person in taxable proportion, to be ascertained by another calculation." 26. What are the three essentials which must Aave con- curred to entitle one who has suffered loss to demand general average? The sacrifice must have been necessary, voluntary, and 156 SHIPPING AND INSUEANCE. [CHAP. VI. successful. 2 Parsons on Contracts, 324 ; Barnard v. Adams, 10 How. 303. 27. Is a deck load entitled to general average ? No, it is not ; but if goods are so carrie.d without the knowledge or consent of the shipper he may recover their full value, if they are destroyed, from the owner of the vessel, on the ground that it was a loss resulting from unsafe and im- proper lading by the fault of the master. 2 Parsons on Con- tracts, B27 ; Barier v. Brace, 3 Conn. 9. 28. WJbere should the final adjustment of the average ie made ? It may be stated, as a rule of general application, that the port of destination is the proper place for the final adjustment of the average. 2 Parsons on Contracts, 332 ; Stevens and Benecke on Av., Phil, ed., 268. 29. In the case of a collision where there has been contrib- utory negligence, what advantage has a plaintiff in admiral- ty which he would not have if he sued at law ? If in such a case one sued at law, the contributory negli- gence of which he had been guilty would prove fatal to his suit ; while if he proceeds in admiralty, the loss "wdll be di- vided. The Arctic Fire Ins. Co. v. Austin, 69 New York, 470, 483 ; The Atlas, 93 U. S. 302 ; Dwight's Notes on Ship- ping, 2 Col. Jur. 354. 30. What is the admiralty rule for adjusting collision cases where both parties are in fault, ship A colliding with ship B? The correct rule in such a case is to divide the damage into two parts, and then decree one half the difference between their respective losses in favor of the one that has suffered most. The North Star, 106 U. S. 647 ; Dwight's Notes on Shipjiing, 1 Col. Jur., No. 2, p. 4. 31. What is the rule when three vessels collide, and vessel C is injured by vessels A and B, both in fault f The rule in such a case is to collect severally from each of CHAP. VI.] SHIPPING AND INSURANCE. 157 the vessels in fault a moiety of the damage, and award the same to the owners of the injured vessel, together with costs of the action. The Equator, 106 U. S. 47; D wight's Xotes on Shipping, 2 Col. Jur. 354. 32. 'Wltat principle governs the liability of the owner of a sunken ship for injury occasioned ty a collision with the wrecTc f The principle to be extracted from these cases is, that the owner of a sunken ship may abandon it. In that case he will cease to be liable. But if he still assumes to control it, mak- ing efforts to raise it, etc., he will be liable if there is any neg- ligence on his part. Collisions, when not accidental, are to be treated as marine torts. There may be an action at law for damage or a proceeding in admiralty, either in personam, or in rem, against the ship. SchoonmaTcer v. Oilmore, 102 U. S. 119 ; The Douglas L. E., 7 Prob, Div. 160 ; D wight's Notes on Shipping, 2 Col. Jur. 354. 33. What are the limited liability acts ? They are statutes passed both in England and the United States which relieve the ship-owner to a certain extent from Mis common-law liability both as to third persons, as in colli- sion cases, and as between the ship-owners and the shipper. Sections 4282-89 of the Revised Statutes of the United States constitute the law on this subject in our own country. These sections provide a method whereby a ship-owner can surrender the ship and freight to a trustee for his creditors in order to escape all further liability. When this is done a monition is issued from the Admiralty Court bringing the parties within that jurisdiction, and causing a cessation of all proceedings in State courts. The difference between the American and English law governing this matter is that the America,n statute takes the value of the ship and freight after the injury, while the English refers to their value before the injury. 64 Rule in Admiralty ; Norwich Co. v. Wright, 13 Wallace, 104 ; 105 U. S. 24 ; Dwight's ISTotes on Shipping, 1 Col. Jur., No. 2, p. 4. 158 SHIPPING AND INSURANCE. [CHAP. VI. SEC. 2. MARINE INSURANCE. 34. Is the contract of insurance a wagering contract or a contract of indemnity ? It is a contract of indemnity. 2 Parsons on Contracts, 350. 35. WJiat is the contract of insurance called, and how are the parties to it designated ? The contract is called the policy of insurance. The person upon whose property an insurance is effected is called the insured, and the one who agrees to insure is denominated the insurer. 2 Parsons on Contracts, 350 ; 2 Bouv. Law Diet. 729. 36. Must a policy of insurance he in writing ? It need not be in writing unless the act of incorporation of the insurers requires it to be so. 2 Parsons on Contracts, 350 ; Commercial Ins. Co. v. Union Ins. Co., 19 How. 318. 37. What is a voyage policy ? A time policy f A voyage policy is one in which the termini are distinctly stated, and by the terms of which the risk incurred is insured against only during the continuance of the voyage specified. A time policy is one which by its terms insures the vessel for a certain time, irrespective of what voyage she may under- take or what course she may pursue in reaching her destina- tion. The distinction between a voyage and a time policy be- comes of importance when the subject of deviation is discussed. If the policy be for the voyage only, and a deviation on the part of the insured occurs, the insurers are no longer liable ; if, however, a deviation is made by a vessel covered by a time policy, the insurers' liability is in nowise decreased or affected. 2 Parsons on Contracts, 410-16 ; 1 Phillips' Ins., ch. 1, § 13 ; Leeds v. TJie Ins. Co., 8 New York, 356 ; 1 Arnould on Ins., 332, 383 ; Union Ins. Co. v. Tysen, 3 Hill, 118 ; Beams v. The Ins. Co., 48 Barb. 445. CHAP. VI.J SHIPPING AND INSURANCE. 159 38. What is Tneant by the "premium'''' in a contract of insurance ? It is the consideration for the promise of the insurers, and is equally valid for that purpose, whether it is paid in money when the policy is delivered, or by a promissory note, or re- mains only as the debt of the insured. 2 Parsons on Con- tracts, 357. 39. What are the risJcs insured against f They are usually perils of the sea, fire, barratry, theft, robbery, piracy, capture, arrests, and detentions. 2 Parsons on Contracts, 373, 374. 40. What are the various losses insured against f Total and partial loss. Total loss is either actual or constructive. Actual total loss occurs when the property is really destroyed. Constructive total loss is where the loss exceeds fifty per cent of the value of the property insured ; in such a case the owner may abandon it and recover the entire amount of the insurance. 2 Parsons on Contracts, 382-90. 41. "What are the subjects of murine insurance ? The ship and her appurtenances ; the cargo which she carries ; the freight which she earns ; the profits arising from an increase of the value of the cargo, caused by the transpor- tation. Either or all of these may be and often are insured. 2 Parsons on .Contracts, 361 ; Hood v. Manhattan Ins. Co., 1 Kern. 532 ; Mumford v. Hallett, 1 Johns. 433. 42. When goods are insured "at and from'' ^ a certain place, when does the risk attach f The risk attaches from the time the goods are laden, though in insurance of a ship those words include her stay in the port from the time of her arrival there. Patrick v. Jjiid- low, 3 Johns. Cas. 10, 14. 160 SHIPPING AND INSUKANCE. [CHAP. VI. 43. What is an open policy f It is one whicli does not state the value of the property insured as agreed upon by the parties to the contract. 2 Par- sons on Contracts, 368 ; 1 Phillips' Ins., § 4. 44. What is a valued policy ? Where the value of the property insured is agreed upon by the parties, and this value is stated in the policy, usually by the use of the phrase, " Valued at $ ," it is termed a valued policy. 2 Parsons on Contracts, 369 ; Hodgson v. Mass. Ins. Go.., 5 Cranch, 100. 45. What is re-insurance ? It is the insurance by an insurer of his liability for the loss which his insured may sustain. 2 Parsons on Contracts, 373 ; Mussey v. Atlas Ins. Co., 4 Kern. 79. 46. Wliat is double insurance ? Double insurance exists where, by different policies, the same interests of the same parties in the same subject-matter is insured against the same risks. Over-insurance in such a case is where the whole amount insured by all the policies exceeds the actual value of the property insured. 2 Parsons on Contracts, 371 ; American Ins. Co. v. Griswold, 14 Wend. 399. 47. What is meant, in cases of loss, try the proximxite, and what by the rem,ote cause ? The proximate cause is that which directly causes the loss ; the remote cause is one which, although it bears a causal relation to the disastrous effect produced, does not actually occasion it. The rule of insurance law on this subject is com- monly expressed by the use of the Latin maxim, Causa proxima non reviota spectatur ; the direct and not the re- mote cause is the one to be considered as occasioning the loss. Broom's Max. 166 ; 2 Parsons on Contracts, 374 ; 14 How. 351. CHAP. VI.] SHIPPING AND HSrSUEANCK. 161 48, In all the Lloyd policies there is a clause at the very end, after the letters " iV". 5., " as follows : "Corn, fish, sugar, salt, and hides,'''' or some other articles, '■'■warranted free from average unless general, or the ship be stranded.''^ Ex- plain its meaning and state its effect. These enumerated articles are always perishable, and the object is to relieve the insurers from liability for all partial losses ; and the doctrine of abandonment cannot be applied to them. It is enough that they come into the port of destina- tion -in specie — i.e., in their original form, no matter how deteriorated they may be in value, to relieve the insurers. If, however, they are cast over by public authorities on sanitary grounds in an intermediate port, or by the master and crew for like reasons during the course of the voyage, the insurers will be liable for a total loss. The words, " or the ship be stranded, ' ' found in this clause, mean that if the ship be stranded in a technical sense the in- surers will not be liable even for a partial loss. Stranding does not include the ordinary perils of navigation in a port, occasioned by the rise and fall of the tide, but means some fortuitous and unexpected case, and then not merely scraping the bottom of the ocean, but resting there some little time, just how long is not yet defined. In this case, in order that the insured may recover, it is not necessary that the stranding should have an effect upon the goods. It is to be regarded as a mere event, and if that event happens the insurers will be liable. Dwight's Notes on Marine Insurance, 1 Col. Jur. 14. Le Roy v. Oouverneur, 1 Johns. Cas. 226 ; 1 Gaines, 196 ; 3 Id. 108. 49. 'What is the meaning of the word " barratry " in the law of marine insurance f Barratry consists in wilful acts of the master or mariners, done for some unlawful or fraudulent purpose, contrary to their duty to the owners of the vessel. Lawton v. Sun Mut. Ins. Co., 2 Gushing, 500, 511, 512 ; Atkinson v. Great 'West- ern Ins. Co., 65 New York, 531. 21 163 SHIPPING AND INSTJEAlirCE. [CHAP. VI. 50. What is the meaning of the expression, ' ' One third off new for old " ? It means that the insurers shall pay for any partial loss on the ship two thirds of the whole expense of making the repairs thoroughly and with new materials, the owner paying or losing the remaining third. 2 Parsons on Contracts, 393. 51. In applying the rule of " one third off new for old," what ar^ the different modes of making deduction for the old Tuaterials ? In the solution of this question two rules have been ad- vanced : 1. Deduct the value of the old materials from the cost of repairs, and then take off " one third new for old." Assum- ing the repairs to be $400 and the old materials $100, this would leave the insurers liable for $200. 2. Prom the value of the repairs take off " one third new for old," and then deduct the value of the old materials. In this case the insurers would only be liable for $166.66. The first rule is the correct one. 1 Cowen, 275 n.; Dwight's Notes on Marine Insurance, 1 Col. Jur. 14. 52. What is m,eant by abandonment in the law of marine insurance ? It is the relinquishment by the insured to the insurer of aR property in the goods insured. It must be made within a reasonable time after the loss. 3 Kent's Comm. 265 ; 16 Ohio St. 200. 53. Wliat is a warranty in the law of insurance ? Bis- "tingwish between a warranty and a representation. A warranty is a statement of fact or of some duty im- posed upon the insured contained in the policy or in some paper referred to by it. The distinction between a warranty and a representation is that the former is contained in and forms part of the contract, and must be complied with whether material to the risk or not, while the latter is outside of the contract, and it is immaterial whether it is true or false unless material to the risk. Chase v. The Hamilton Ins. Co., 20, 57 ; Dwight'st IS'otes on Insurance, 2 Col. Jur. 358. CHAP. VI.] SHIPPING AND INSUEANCE. 163 54. What is a deviation and its effect ? There is always a warranty that the ship shall pursue her proper course between the termini ; it is, therefore, a weU- established rule of insurance law that any departure from the course indicated by the policy, or, in fact, any other material change in the risks assumed by the insurers, will discharge them from all further liability. Tliis change in the nature of the risk is termed a deviation. 2 Parsons on Contracts, 410 ; Maryland Ins. Co. v. Le Roy, 7 Cranch, 26. SEC. 3. FIRE INSUEANCE. 56. What Mnd of an agreement is the contract of fire in- surance ? It is a contract of indemnity. 2 Parsons on Contracts, 418. 56. What interest must one have in the property which he desires to insure, to enable him to obtain a valid policy ? His interest must be a valuable one. If this were not the rule, persons might be encouraged to commit the crime of arson by having it in their power to insure property in which they had no interest, and from whose destruction they would reap a pecuniary benefit. Carpenter v. Ins. Co., 16 Pet. 503 ; 4 Wait's Acts. & Defs. 22. 57. State particularly what perils and damages are in- demnified by a policy of fire insurance. Primarily the policy insures the owner of the property against loss occasioned by combustion only, but all conse- quential injuries which inevitably result from the fire, such as damage caused by water used to extinguish the flames, the cost of removing articles, theft, and the like have, as a rule, to be borne by the insurers. 2 Parsons on Contracts, 444, 446 ; Wither ell v. Maine Ins. Co., 49 Me. 200 ; White v. Republic Ins. Co., 57 Me. 91. 58. When does the risk begin ? The risk is presumed, in the absence of any express agree- ment to the contrary, to begin at the date of the policy, even 164 SHIPPING AND INSURANCE. [CHAP. VI. though the latter may have been actually delivered at a time subsequent to its date. Lighfbody v. N. A. Ins. Co. , 23 Wend. (N. Y.) 18 ; 4 Wait's Acts. & Defs. 65. 59. What is meant hy the word '•'■fire '''' in a policy of in- surance ? It means actual combustion, accompanied by flame. 8t. John V. Amer. Mut. Ins. Co., 11 New York, 516 ; Millandon V. Ins. Co., 4 Rob. Lou'a. R. 15. 60. What is meant ty "proof of loss^'' in fire-insurance policies ? It is the establishment, by competent evidence, of the in- sured's right to recover the sum for which the property is in- sured. In case of loss the insurer is entitled to demand notice of the loss, proof of the facts, and an opportunity to investi- gate them before he is obliged to pay. The policy generally prescribes the mode of procedure to be observed in such cases. Statutes are, however, passed in some States regulating these matters, and in such a case the loss is nofc payable until their provisions are complied with, unless they are.absolutely waived by the insurers. 4 Wait's Acts. & Defs. 78 ; Mix v. T7ce Ins. Co., 9 Hun, 397. 61. What effect upon the right to recover upon a policy of insurance has a clause in the contract that payment must be demanded within a certain time, which is, in fact, more brief than the period usually allotted by law ?■ This is an instance of limitation created by contract in- stead of by statute. It is, however, binding as a condition I)recedent, and if the action is not brought within the prescribed time, the insured has no claim either in law or in equity. The contract time begins to run from the time the loss is payable. Hay v. Star Fire Ins. Co., 77 JSTew York, 235 ; Arthur v. The Homestead Fire Ins. Co., 78 New York, 462. 62. State the doctrine of waiver, and whether it at all af- fects the doctrine of warranty as applied in the law of in- surance. The whole subject of warranty is greatly qualified by the CHAP. VI.] SHIPPING AND INSTTEANCE. 165 doctrine of waiver. By waiver is meant some act on the part of the insurers or their agents showing that the strict condi- tions of the policy are not insisted upon. Some authorities hold that waiver is but another name for estoppel in pais. This, however, does not seem tu be correct. A warranty is a branch of the law of conditions precedent, which are subject to waiver both in the law of real estate and personal property, and this is but an extension of the general rule to an insurance policy. Dwight's Notes on Insurance, 1 Col. Jur. 15. 63. By whom may waiver he made f It is now well settled that the power of waiver may be exercised by such officers of incorporated companies as man- age the business at the home office, such as the president and secretary. As these companies, however, when prosperous, transact business at distant cities, a more important question is as to the power of these distant agents to waive the condi- tions. At this point a distinction must be taken between gen- eral and special agents. A general agent is one having the power to use Judgment and discretion in issuing the policy. This a special agent lacks, and simply obeys the instructions of the office. A general agent therefore nicy waive the condi- tions unless restrained, while the special agent may not. Pitney v. Glens Falls Ins. Co., 65 New York, 6 ; Pechner V. The Ins. Co., 65 New York, 195 ; Dwight's Notes on In- surance, 1 Col. Jur. 15. 64. If a house is destroyed to pr event a fire from spread- ing, are the insurers liable ? They are ; the fire being the proximate cause of the destruction of the house, it is a loss by fire within the mean- ing of the policy. 2 Parsons on Contracts, 447 ; City Fire Ins. Co. V. Corlies, 21 Wend. 367. 65. In case of double insurance when a loss occurs, how much can the insured recover f He can only recover the amount of one insurance ; but the insurer from whom he recovers is entitled to contribution from the other insurers. Lucas v. Jefferson Ins. Co., 6 Cowen, 635. 166 SniPPING AND INSURANCE. [CHAP. -VI. 66. In case of re-insurance, Jias the original insurer, in the event of a, loss, any claim against the re-insurer ? He has not; and furthermore it has been held that "if an insurer causes himself to be re-insured, and then becomes insolvent, and a loss occurs, the original insured has no lien upon and no interest in the policy of re-insurance. Hercken- rath V. las. Co., 3 Barb. Ch. 63 ; 2 Parsons on Contracts, 460 ; Hone V. Mut. Safety Ins. Co., 1 Sandf. (N". Y.) 137 ; Blacks stone V. Ins. Co., 56 New York, 104. 67. An insurance company fails, and can pay hut 6 per cent of its liabilities. Some of its risJcs are re-insured. Is the re-insurer liable for the whole amount insured by it, or for the amount which the original insurer pays ? Give rea- son for your answer. The re-insurer is liable for the whole amount. The con- tract between the re-insured and the re-insurer is a conditional one, by the terms of which the latter agrees to pay to the former a certain sum if he becomes liable for the original in- surance. TTie occurrence of this liability, then, and not the ability of the re-insured to meet it, is the condition upon the happening of which the policy of re-insurance becomes due, and the partial or total insolvency of re-insured for this reason can in no way affect the rights or duties of the re-insurer. 1 Sandf. 137 ; BlacTcstone v. The Ins. Co., 56 New York, 104 ; 4 Daly, 299. SEC. 4. LIFE INSURANCE. 68. What is the contract of life insurance ? It is an agreement by the terms of which the insurer agrees to pay to the insured a definite sum of money upon the death of a third person. 2 Parsons on Contracts, 464 ; Buse v. The Ins. Co., 23 New York, 516. 69. Is life insurance a contract of indemnity or a wager- ing contract ? It was at one time considered to be a contract of indemni- ty. This view was, however, overruled in the appellate court. CHAP. VI.] SHIPPING A.ND INSUEANCE. 167 Life insurance was there held to be in its nature a wager, de- pending upon a contingent event : to wit, the time of the death of the party insured. Oodsall v. Boldero, 9 East, 72 ; Dolby V. The Ins. Co., 15 C. B. 365 ; The Ins. Co. v. Shejler, 94 U. S. 561 ; Hawle v. The Ins. Co., 27 New York, 182 ; Dwight's Notes on Insurance, 1 Col. Jur. 22. 70. What Tnust he the character of the interest one has in the life of another to enable him to insure it ? It must be an interest which is pecuniary in its nature, as, for example, the interest which a person who is dependent upon another for his support has in the life of the one who supports him. 2 Parsons on Contracts, 477-83 ; St. John V. American Ins. Co., 2 Duer, 429. 71, When is the presumption of death sufficiently strong to enable the per son for whose benefit the policy was issued to collect the insurance ? When the person whose life is insiired has been absent and unheard from for the period of seven years. 2 Parsons on Contracts, 485 ; Knight v. Nepean, 5 B. & Ad, 86 ; 2 M. & W., 894, 913. 72, Are life-insurance policies assignable ? They are ; and the assignee may recover the whole amount insured, and not merely the consideration for the assignment. 2 Parsons on Contracts, 481 ; St. John v, American Ins. Co., 2 Duer, 419 ; 3 Kern. 31. 73. What construction is given in life-insurance policies to the condition that if the insured shall "-die by his own hand " the policy shall be void? This excludes merely accidental death, even though caused by the insured, and also cases where he takes his life when insane in the ordinary sense, being subject to mental delusion. There is, however, a great difference of judicial opinion in the case where the insured is conscious of the moral obliquity of the act, but at the same time is subject to an uncontrollable impulse to commit it. The infirmity there is not in the under- 168 CRIMINAL LAW. [CIIAP. VII. standing, but tlie will. The Supreme Court of the United States takes the position in such a case that the party insured having taken his life did not, in the meaning of the policy, die by his own hand, and that the insurers were therefore liable. This view was disapproved of by the New York Court of Appeals. A later case decided in the same State admits, how- ever, that if the insane impulse is caused by disease the in- surers are liable. Terry y. The Ins. Co., 15 Wall. 580 ; Van Zandt V. The Ins. Co., 55 New York, 469 ; The Ins. Co. V. Bodel, 95 U. S. 232 ; Newton v. The Ins. Co., 76 New York, 426. CHAPTER VII. CRIMINAL LAW. SEC. 1. NATURE OF A CRIME. 1. What is a crime ? " A crime is any act done in violation of the duties which an individual owes to a community, and for a breach of which the law has provided that the offender shall make satisfaction to the public." 1 Bishop's Crim. Law, § 43 ; 4 Denio (N. Y.), 260 ; 6 Ark. 187, 461. 2. Define the terms " mala inse'" and ''■mala prohiMta.'''' The phrase " mala in se" is used to denote such crimes as plainly violate certain moral laws, and are wrong in themselves, independent of any rule of law declaring them to be so. The expression " mala prohiMta'- refers to such crimes as are not morally offensive, but violate some positive rale of criminal law. 13 Pick. 518 ; 1 Bishop's Crim. Law, § 2157. 3. Is the distinction between crimes which are '■'■mala prohiMta " and those which are " mala in se" of any prac- tical importance at the present time f Yes ; but not to its former extent. Formerly this distinc- CHAP. VII. j CRIMINAL LAW. 169 tion was made with respect to contracts, but in more recent times it has been held, and is now well established, that when the provisions of an act of the legislature have for their object the protection of the public, it makes no difference whether the thing be prohibited absolutely or under a penalty. The distinction is still, however, of importance in the criminal law with reference to the question of intent. 6 B. & A. 335, 340 ; 1 Bishop's Crim. Law, § 2157. 4. What are the two great divisions of crimes with refer- ence to their grade ? Crimes are divided into (1) felonies and (2) misdemeanors. Blackstone's Oomm. (Chase's ed.), 848, note 2 ; New York Penal Code, SS 4-6. ■^) 5. What is a felony f At common law it was any unlawful act for the commis- . sion of which the law deprived the wrongdoer of his life or property, or both. By statute a felony is declared to be "a crime punishable by either (1) death or (2) imprisonment in a State prison." 4 Blackstone's Comm. 4; 1 Bishop's Crim. Law, § 43 ; New York Penal Code, § 5. 6. What is a misdemeanor ? At common law a misdemeanor was any crime for which the punishment was less severe than that decreed in cases of felony. By statute a misdemeanor is defined as any crime other than a felony. Blackstone's Comm. (Chase's ed.), 848 ; New York Penal Code, § 6 ; People v. Bogert, 3. Park, Cr. E. 143. 7. What are the essential elements of every crime f To constitute a breach of the criminal law there must be a wrongful act coupled with a wrongful intent. 1 Bishop's Crim. Law, §§221 et seq. ; 2 Mass. 138 ; 30 Maine, 132 ; 1 DaU. Penn. 33 ; 5 Cranch, 311. 8. Will ignorance of the law excuse the commission of a felony or misdemeanor ? It vnW not. This is an ancient and well-established rule 22 170 CEIMINAL LAW. [CHAP. VII. of law, and is embodied in tlie Latin maxim, ''Ignorantia legis neminem excusaV 1 Story's Eq. Jur., § 111 ; 6 Page Ch. (N. Y.), 189 ; 1 Edw. Ch. (N. Y.) 467, 472. 9. Will ignorance of fact excuse the commission of a criTne ? It will, provided no wrongful act was contemplated or negligence committed. 6 All. Mass. 591 ; 9 Pick. Mass. 112 ; 1 Bouv. Law Diet. 129 ; 2 Id. 679. SEC. 2. PERSONS CAPABLE OF COMMITTING- CRIME. 10. Who may commit crime f All persons are capable of committing crime except those who are under some mental or legal incapacity, such as infancy, want of mental soundness, duress, or coveture. 1 Russell on Crimes, 2, 3 ; 1 Blackstone's Comm. 131 ; Foster's Crim. Law, 322. 11. What is the law with respect to the liability of an in- fant for his crimes f Infants under the age of seven are conclusively presumed to be unable to commit crime, for the reason that they cannot appreciate the moral obliquity of the act. Between the ages of seven and fourteen there is still a presumption of incompe- tency to commit crime, but it is not conclusive, and may be rebutted by evidence to the contrary. The burden of proof in such a case rests upon the prosecution. Over fourteen infants are presumed capable of committing crime, and the burden of proof rests upon them to prove the contrary. 1 Russell on Crimes, 2, 3 ; 31 Ala. n. s. 323 ; New York Penal Code, § 18. 12. What degree of mental unsoundness will release one from liability for crimes f A person is not, as a rule, excused from criminal liability because of mental incapacity, except upon proof that at the time of committing the alleged criminal act he was laboring under such a defect of reason as either (1) not to know the nature and quality of the act he was doing, or (2) not to know CHAP. VII.] CRIMINAL LAW. 171 that the act was wrong. McNaughton's Case, 1 C. & K. 129 ; 7 Metcalf, 500 ; Willis v. The People, 32 New York, 715 ; New York Penal Code, § 21. 13. 'What is the general rule as to the liability of one who commits a crime while under the influence of intoxicants ? In most cases intoxication is not a sufficient defence ; but whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time the alleged crime was committed in determining the purpose, motive, or intent with which he committed the act. Kenny v. People, 31 New York, 330 ; People v. Batting, 49 How. 892 ; New York Penal Code, § 22. 14. Wliat is duress, and what effect has its existence upon the liability of one charged with crime ? Where a crime is committed or participated in by two or more persons, and is committed, aided, or participated in by any one of them only because, during the time of its commis- sion, he is compelled to do, or to aid, or participate in the act by threats of another person engaged in the act or omission, and reasonable apprehension on his part of instant dea,th or grievous bodily harm in case he refuses, the threats and appre- hension constitute duress, and excuse him from all liability. 1 Blackstone's Comm. 131 ; New York Penal Code, § 25. 15. What is the presumption where a wife has committed a crime in the presence of her husband ? She is presumed to have acted under his coercion, and is therefore held to be irresponsible for the unlawful act. This presumption is not conclusive, however, but may be rebutted by evidence that the crime was exclusively the wife's unin- fluenced act. In New York this rule of the common law has been abrogated, and it is no defence to a criminal prosecution that the woman committed the unlawful act in the presence of her husband. 1 Russell on Crimes, 23 ; New York Penal Code, §24. 172 CKIMIKAL LAW, [CHAP. Vli. SEC. 3. PARTIES TO A CRIME. 16. How are parties to a crime denominated? Parties to a crime are either principals or accessories. Chase's Blackstone, 873 ; 1 Woodb. & M. C. C. 221. 17. WJio is an accessory ? An accessory is one who, although not the chief actor, in the offence or present at its commission, nevertheless con- tributed in some yv^ay to its perpetration. Chase's Blackstone, 874 ; 16 Mass. 423. 18. Who is an accessory before the fact ? Sir Matthew Hale defines him to be one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. Chase's Blackstone, 875 ; 1 Hale PL Cr. 015. 19. Who is an accessory after the fact ? An accessory after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Chase's Blackstone, 876. SEC. 4. EELONIES. 20. What is Tiigh treason ? High treason is treason against the Federal Government. The United States Constitution declares that treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." U. S. Const., art. iii., § 3 ; Chase's Blackstone, 886. 21. What is homicide ? Homicide consists in causing a person's death by human agency. 1 Hawkins, PI. Cr., c. 8, § 2 ; 5 Cush. Mass. 303. CHAP. VII. J CEIMINAL LAW. 173 22. WJiat is felonious homicide? It is homicide committed under such circumstances as to render it punishable by law. Chase's Blackstone, 937. 23. What is excusaMe homicide ? Bouvier defines it to be that species of homicide which takes place under such cii'cumstances of accident or necessity that the party cannot strictly be said to have committed the act wilfully and intentionally, and whereby he is relieved from the penalty annexed to the commission of felonious _ homicide. 1 Bouv. Law Diet. 670 ; Chase's Blackstone, 932. 24. What is justifiable homicide? Justifiable homicide is that committed with full intent to kill, but under such circumstances as to render the act justi- fiable. 1 Bouv. Law Diet. 671. \Nole. — The distinction between excusable and justifiable homicide is of little practical importance at the present time ; but as the questions herein' contained are frequently propounded by examiners, (hey are given in this chapter. ] 25. What is meant hy the corpus delicti ? It means the body or essence of the crime. In most cases conviction cannot be had unless the corpus delicti is fully established. 1 Bouv. Law Diet. 368 ; 1 Starkie's Ev. 675 ; 2 Hale, PI. Cr. 290. 26. Wliat is murder ? Murder is committed when one person with malicious premeditation takes the life of another. 1 Russell on Crimes, 421 ; 5 Cush. Mass. 304 ; 4 Blackstone' s Comm. 195. 27. What is manslaughter ? It is the unlavsrful killing of one human being by another without malicious intent to commit homicide. 4 Blackstone' s Comm. 190 ; 1 Hale, PI. Cr. 466. 28. How does manslaughter committed on a sudden provo- cation differ from excusable homicide ? It differs in this, that in the latter case there is an appar- ent necessity, for self-preservation, to kill the aggressor ; in 174 CRIMINAL LAW. [OHAP. VII. the former no necessity at all, it being only a sudden act of revenge. Chase's Blackstone, 939, 940. 29. What are the divisions of manslaughter f Manslaughter is either (1) voluntary or (2) involuntary. Chase's Blackstone, 939, 940 ; 2 Bouv. Law Diet. 100. 30. What is voluntary manslaughter ? " Voluntary manslaughter is such as happens voluntarily, or with the intention to produce injury." Chase's Black- stone, 939, 940 ; 2 Bouv. Law Diet. 100. 31. What is involuntary manslaughter f Bouvier defines it to be " such as happens without the in- tention to inflict the injury." 2 Bouv. Law Diet. 100. 32. How does murder differ from manslaugJiter ? Murder differs from manslaughter in that the malicious intent which is ever present in the former is always absent in the latter. 1 East, PL Cr. 218 ; Foster, 290 ; 5 Cush. Mass. 304. 33. What was a deodand ? " A deodand in the former English law was any personal chattel which immediately caused the death of a reasonable creature. It was forfeited to the crown, to be applied to pious uses. This law no longer exists." Chase's Blackstone, 96, note 12. 34. How many divisions of murder are there ? Two : (1) murder in the first degree and (2) murder in the second degree. New York Penal Code, §§ 183, 184. 35. Give the four classes of murder in the first degree. (1) When perpetrated from a deliberate and premeditated design to eflEect the death of the person killed, or of another. (2) When perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual. CHAP. Vn.] CRIMINAL LAW. 175 (3) When perpetrated without a design to effect death by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise. (4) When perpetrated in committing the crime of arson in the first degree. New York Penal Code, § 183 ; PeopU V. Olark, 7 New York, 385 ; People v. Campbell, Edm. S. C. 307. 36. What is the punishmemt for murder in the first de- gree f Murder in the first degree is punishable in New York and most of the other States by death, but in some of the States imprisonment for life is the penalty inflicted. New York Penal Code, § 186 ; Chase's Blackstone, 948, note 8. 37. What is murder in the second degree ? There are two kinds of murder in the second degree : (1) Where one person causes the death of another with the design to effect such person's death or the death of another, but does so without premeditation and deliberation. (2) Where a person, by appointment made within the State, participates in a duel, either as principal or second, in which one of the parties loses his life. New York Penal Code, §§ 184, 185 ; People v. Sheriff of Westchester, 1 Park. 659 ; Norton's case, 3 C. H. Rec. 90. 38. Bow is murder in the second degree punished ? Murder in the second degree is punishable by imprison- ment for the offender's natural life. New York Penal Code, §186. 39. Whxd are the different classes of manslaughter in the first degree ? There are four kinds of manslaughter in the first degree — viz. : (1) An unintentional killing by a person engaged in com- mitting or attempting to commit a misdemeanor, affecting the person or property either of the person killed or of another. 176 CRIMINAL LAW. [OHAP. VII. (2) An unintentional killing in the heat of passion, bnt in a cruel and unusual manner, or by means of a dangerous weapon. (3) The wilful killing of an unborn child by an injury committed upon the person of the mother of such child. (4) Attempting to procure the miscarriage of a woman, unless the same be necessary to preserve her life, by the use of. drugs, dangerous instruments, etc., or by procuring and advising them to be used, if death results to the woman or to the quick child of which she is pregnant. New York Penal Code, §§ 189-92 ; People v. Sheriff of Westchester, 1 Park. 659 ; People v. Hector, 19 Wend. 569 ; Lohman v. People, 1 New York, 379. 40. Give tJie six principal forms of m/x/nslaughter in the second degree. (1) An unintentional killing of one person by another in the heat of passion, but not by a deadly weapon or by the use of means either cruel or unusual. (2) An unintentional killing by a person committing or attempting to commit a trespass or other invasion of a private right, either of the person killed or of another. (3) The act of a woman in using means to procure an abortion or submitting thereto, if the unborn child of which she is pregnant die in consequence. (4) Certain acts of negligence in the use of machinery, animals, or other property ; keeping gunpowder in improper places ; overloading vessels, provided that by any of these negligent acts a person's death is caused. (5) Other culpable acts of negligence causing death which do not amount to murder in the first or second degree, nor manslaughter in the first degree. (6) Malpractice by a physician which causes the patient's death. New York Penal Code, §§ 193, 194, 195, 200, 201. 41. WTcat is usually the punishment inflicted upon per- sons found guilty of manslaughter in the first degree ? Manslaughter in the first degree is in most States punish- CHAP. VII. j CBIMINAL LAW. 177 able by imprisonment for not less than five nor more than twenty years. New York Penal Code, § 192. 42. What is the punisliment inflicted upon one found guilty of manslaugJiter in the second degree ? Manslaughter in the second degree is punishable by im- prisonment for not less than one year nor more than fifteen years, or by a fine of not more than one thousand dollars, or by both. New York Penal Code, § 202. 43. What is larceny ? Larceny is the wrongful and fraudulent taking and carry- ing away by any person of personal property belonging to another, with a felonious intent to convert it to the taker's own use, without the consent of the owner. 2 East, PL Cr. 553 ; 4 Wash. C. C. 700 ; 2 Bishop's Crim. Law, § 625 n. 44. What is th^ distinction between petit larceny and grand larceny ? At common law grand larceny consisted in the criminal taking of goods over a certain value ; the taking of goods of a less value constituted the crime of petit larceny. The dis- tinction between petit larceny and grand larceny is not recog- ■ nized in many of the States, but still prevails in New York, where the value of the article taken must amount to twenty- five dollars, or the theft must be from the person, to constitute the crime of grand larceny. 2 East, PI. Cr. 736 ; New York Penal Code, §§530,531. 45. What is meant by " caption and asportation " in the law of larceny ? This term refers to the "taking and carrying away," without which the crime of larceny cannot be committed. There must be an actual removal of the article ; but a very slight removal, if it amount to an actual taking into posses- sion, is sufficient. 1 Leach, Cr. Cas., 4th ed., 236 n. 320; 2 East, PL Cr. 556, 617 ; 4 Taunt. 258. • 46. What is meant by trespass in the law of larceny ? Trespass as used in this connection signifies an injury or 23 178 CEIMINAL LAW. [CHAP. Til. violation of a person's title and possessory interest in chattels, and consists in wrongfully depriving Mm of their possession against his will. Consequently larceny may be committed by taking goods either from the person having absolute title or from a special owner, such as a bailee, for hire. People V. McDonald', 43 New York, 61 ; PJielps v. People, 72 New York, 334. 47. If goods are taken at first with the intention to restore them to the true owner, hut are subsequently converted with the intent to steal them, would this he larceny f It would not. In order to convict of larceny the property must be taken with a felonious intent to convert the same to his own use by the taker ; it is not sufficient to render one guilty of this crime to prove that after the taking it was wrongfully converted. " It is necessary to find that the in- tent to steal existed at the time of the taking — cepit animo furandi." Wilson v. People, 39 New York, 459; 3 Coke's Inst. 107 ; 4 Blackstone's Comm. 232 ; Whart. Am. Cr. Law, 1752, 5th ed. ; Barbour's Cr. Law, 153. 48, What animals could not he the subject of larceny at com/mon law ? "Larceny also cannot be committed," says Blackstone, " of such animals in which there is no property either abso- lute or qualified, as of beasts that are ferce naturce and unre- claimed, such as deer, hares, and conies, in a forest, chase, or warren ; fish in an open river or pond ; wild fowls at their natural liberty." "As to those animals," he continues, " which do not serve for food, and which, therefore, the law holds to have no intrinsic value, as dogs of all sorts and other creatures kept for whim and pleasure, though a man may have a base property therein, and maintain a civil action for the loss of them, yet they are not of such estimation as that the crime of stealing them amounts to larceny." In both England and the United States these rules ot the common law have to a gi-eat extent been abrogated or modi- CHAP. VII.] CEIMINAL LAW. 179 fied. Chase's Blackstone, 970, note 7 ; People v. Campbell, 4 Parker, 386. 49. What is embezzlement ? Embezzlement is " the fraudulent removing and secreting of personal property with which the party has been intrusted, for the purpose of applying it to his own use." 1 Bouv. Law Diet. 522 ; 2 Mete. Mass. 345 ; 9 Id. 142 ; Chase's Blackstone, 971, notes. 50. In New York State is there any distinction made be- tween larceny, embezzlement, and obtaining goods under false pretences ? By the provisions of the New York Penal Code the crimes above mentioned are no longer distinguished, but are all of them denominated larceny. New York Penal Code, § 528 ; People V. Eennessy, 15 Wend. 147 ; Thomas v. People, 34 New York, 851. 51. What are the necessary elements which must concur to render one liable for the crime of obtaining goods under false pretences ? To constitute this offence two things must be present and concur — viz. : (1) a false representation as to an existing fact, and (2) a reliance upon the representation as true. People V. TompMns, 1 Park. 224 ; People v. Miller, 2 Id. 197. 52. Is a verbal false pretence larceny ? Under the New York statute a purchase of property by means of a false pretence is not criminal where the false pre- tence relates to the purchaser's means or ability to pay, unless the pretence is made in writing and signed by the party to be charged. New York Penal Code, § 544. 53. What is robbery ? Eobbery is the felonious taking of the personal property of another from his person or in his presence by violence, or putting him in fear. 4 Blackstone' s Comm. 243; 1 Baldw. G. C. 102 ; 12 Ga. 293. 180 CBIMINAL LAW. [CHAP. VII. 54. How does rohhery differ from larceny ? It differs in two important particulars : (1) In robbery the property must be obtained from the owner by force and violence, or putting him in fear ; this ele- ment need not be present to constitute a larceny. (2) The goods must be taken from the owner's person or in his presence ; this is not necessary to render one guilty of larceny. Jebb, Cr. Cas. 62 ; McCloslcey v. People, 5 Parker, 299 ; JRex v. Prancis, 2 Strange, 1015 ; Chase's Blackstone, 974, 975, note 12. 55. Define burglary. Burglary is vfiovL^vlirpaMng and entering into another's house or dwelling in the nigJit-time, with intent to commit a felony therein. 4 Blackstone' s Comm. 224 ; 2 Russell on Crimes, 2 ; 1 Hale, PL Cr. 549 ; 7 Mass. 247. 56. To constitute burglary must the '' hreaTcing " be actual, or may it be constructive only f It may be either actual or constructive. It is an actual breaking, though the force employed be slight, if an opening be made where none existed before. It will be a constructive breaking if one obtain entrance by fraud, threat, conspiracy, or through an usual opening in an unusual manner and with a felonious intention. McCourt v. People, 64 N"ew York, 586 ; 34 Ohio St. 42J; 85 Penn. St. 66; 2 East, PI. Cr. 487; 8 Pick. 354. 57. What constitutes a sufficient '■'■ entry'''' in the law oj burglary ? Some portion of the burglar's body or the instruments with which he endeavors to effect a felonious entrance must be introduced within the house. 4 Blackstone' s Comm. 227 ; 1 Gabbett's Crim. Law, 174 ; 1 Bishop's Crim. Law, §§ 81-83 ; 1 Russ. & R. Cr. Cas. 417. 58. What is meant by the phrase " in the night-time,^'' as used in the definition of burglary f " The night-time" consists of the period between the ter- CHAP. VII. j CRIMINAL LAW. 181 mination of daylight in the evening and .the earliest dawn of the next morning. Chase's Blackstone, 959 : New York Penal Code, § 600. 59. Is it burglary to break out of a house f It is bnrglary to break out of a house which has been entered with intent to steal. Sands' case, 6 C. H. Rec. 1 ; New York Penal Code, § 496. 60. WJiat is perjury ? It is the crime committed when a lawful oath is admin- istered, in some judicial proceeding, to a person who swears wilfully, absolutely, and falsely m a matter material to the issue or point in question. Chase's Blackstone, 909 ; 2 Bishop's Grim. Law, § 860. 61. State specifically the essential elements of perjury. There must have been (1) a lawful oath administered ; (2) the proceeding must have been a judicial * one ; (3) the swearing must he wilful, absolute, and false; (4) the testi- mony must be material to the issue or point in question. Chase's Blackstone, 909, 910, notelO ; Comm. v. White, 8 Pick. 453 ; People v. CooJc, 8 New York, 67 ; Sells v. Hoare, 3 B. & B. 232 ; People v. McKinney, 3 Parker, 510 ; Oeston V. People, 61 Barb. 35. 62. What is subornation of perjury ? It is the o£fence of procuring another to commit the crime of perjury. Hawkins' PL Cr. b. 1, c. 69, s. 10. 63. Would the mere solicitation of another to commit per- jury be sufficient to render a person guilty of the crime of subornation of 'perjury? It would not. To complete the offence, the false oath must be actually taken, and no ineffectual attempt to induce one to commit perjury will complete the offence. Mere solicitation, however, is indictable, as an attempt to secure the commission of perjury. 5 Mete. Mass. 241 ; 2 Bishop's Crim. Law, § 1016. * Or in New York, either judicial or ministerial. Tirffle v. Pwple, 36 New York, 431. 182 EQUITY. [chap. VIII. 64. Define for ger.y. Forgery is the fraudulent making or altering of a document with the criminal intent to prejudice the rights of another. People V. Fitch, 1 Wend. 198 ; 4 Blackstone's Comm. 245 ; 3 Chitty's Cr. Law, 1022 ; New York Penal Code, §§ 509-27. CHAPTER VIIL EQUITY. SEC. 1. GENERAL PRINCIPLES. 1. What is equity ? Equity is that system of justice which was administered by the High Court of Chancery in England in the exercise of its extraordinary jurisdiction. Bispham's Prins. of Equity, 1 ; Maine's Ancient Law, ch. iii. 2. State hriejly the origin of courts of equity. Owing to the many technicalities and limited develop- ment of the ancient common , law, persons whose rights were injuriously affected frequently failed to obtain adequate relief. In such cases those injured would not unnaturally appeal to the king, as being the highest power in the State, and demand of him substantial justice. In course of time so numerous became these applications that the king was obliged to delegate his authority to his most trusted advisor, who was called the lord chancellor. A court was at length established, presided over by the above-named functionary, and a system of jurisprudence de- veloped; wonderful alike for its symmetry and simplicity. Bispham's Prins. of Equity, 2-28 ; 1 Spence, Equity, 328, and notes. 3. WJiat are the divisions of equitable jurisdiction ? The jurisdiction of courts of equity is either exclusive of, CHAP. VIII.] EQUITY. 183 coTicurrent with, or auxiliary to, that of courts of law. 3 Wait's Acts. & Defs. 139 ; 3 Bl. Comm. 431, 432 ; 1 Broom & Had. Comm. (Wait's ed.), 759. 4. In what eases has equity exclusive jurisdiction f Equity has exclusive Jurisdiction in all cas^s where the right asserted is not recognized by courts of law. The law of trusts forms an important branch of the exclusive jurisdiction of courts of equity. Story's Eq. Jurisprudence, § 960 ; 3 Bl. Comm. 431, 432. 5. Over what matters has equity concurrent jurisdiction with courts of law ? The jurisdiction of equity is concurrent when both courts of law and equity recognize the right, but the relief afforded by the latter is the most complete. The most important cases under this division are accident, mistake, and fraud. 3 Wait's Acts. & Defs. 161 ; Story's Eq. Jurisprudence, §§ 75-441. 6. WJien has equity auxiliary jurisdiction f Equity is said to haA^e auxiliary jurisdiction when it aids the common law courts in the administration of justice with- out assuming jurisdiction over the subject-matter. Bills to perpetuate testimony belong to this division of equitable jurisdiction. Story's Eq. Jurisprudence, §§ 1480-81 ; 8 Wait's Acts. & Defs. 181. 7. What is the nature of the equitable jurisdiction of the federal courts ? The United States Constitution confers equitable jurisdic- tion upon the federal courts ; but to enable them to exercise such jurisdiction there must be no plain adequate and complete remedy at law. U. S. Constitution, Art. III., § 2 ; U. S. R. S., 563, 629. 8. What classes of persons are particularly under the pro- tection of courts of equity ? Those who are peculiarly unable to manage their own affairs, such as idiots, drunkards, lunatics, infants, and mar- 184 EQUITY. [chap. VIII. ried women. Bispham' s Prins. of Equity, 34, 234, 551-55 ; Story's Eq. Jurisprudence, 1366-1429. 9. Gine some of the leading maxims in equity. The following are the most prominent equitable maxims : (1) Equity will not suffer a right to be without a remedy ; (2) equity follows the law ; (3) as between two equal equities the one prior in time is superior in right ; (4) where the equities are equal the law will prevail ; (5) he who seeks equity must do equity ; (6) he who comes into equity must come with clean hands ; (7) delay defeats equity ; (8) equality is equity ; (9) equity regards the intent rather than the form ; (10) equity regards that as done which ought to be done ; (11) equity imputes an intention to fulfil an obligation ; (12) equity having once obtained jurisdiction, does not lose it because relief may be obtained at law ; (13) equity acts in personam; (14) equity acts specifically. WUlard's Eq. (Pot- ter's ed.), 45-9 ; Bispham's Prins. of Equity, 53-67. 10. W7iat is meant hy the maxim, ^^ Equity will not suffer a right to be without a remedy''^? The complete meaning of this maxim is that equity wUl not only not suffer a right to be without a remedy, but it will make the remedy when applied a complete one. Two impor- tant qualifications are, however, attached to this maxim. First, the right must be one of which the municipal law can take cognizance, and not one which falls merely within the scope of moral law, and, secondly, there must have been, to give equity jurisdiction, no full, adequate, and complete remedy at law. Bispham's Prins. of Equity, 53, 54 ; Story's Eq., § 33. 11. What construction is put upon the maxim, ''Equity follows the law^^f This maxim means that equity will apply to equitable titles and interests the same rules' by which these subjects would be regulated at law, if this can be accomplished in a manner which will not be inconsistent with the equitable titles and interests themselves. Equity is thus said to follow the law when in analogy to the statutes of limitations it refuses to CHAP. VIII. J EQUITY. 185 recognize a stale claim. Bispham's Prins. of Equity, 58 ; 17 Ves. 99. 12. Explain the maxim, '■^ He who is prior in time is su- perior in right. ' ' The constraction put upon this maxim is to the effect that if two persons have equal equitable rights, the one first ac- quiring his right will be entitled to the primary considera- tion. Bispham's Prins. of Equity, 64 ; Phillips v. Phillips, 10 W. R. 236 ; Snell's Equity, 25. , 13. "What signification has the maxim, " Where the equi- ties are equal, the law will prevail ' ' ? If two persons have equitable rights which are equal, but one of them has the legal title to the subject-matter of dispute, equity will not assume jurisdiction, but will leave the parties to proceed at law, where the one having the legal title will, as a matter of course, prevail. Thorndike v. Hunt, DeG. & Jo. 563 ; Snell's Equity, 18. 14. WJiat is meant by the maxim, " He who seeks equity must do equity ' ' f " The usual illustration of this maxim," says Bispham, " is the case of a borrower of money on usurious interest, who comes into a court of equity to ask for relief by having the transaction set aside. Equity will not aiford him redress ex- cept upon the terms of his returning the amount actually bor- rowed with lawful intei*est, because it is as equitable that the person who has loaned the money should have the amount with lawful interest returned to him, as tliat the borrower should be relieved from his unjust obligation to pay a usurious rate. Bispham's Prins. of Equity, 02 ; Fambliig v. Dunham, 5 Johns. Ch. 122. 15. Give the meaning of the maxim, '•'•He who comes into equity must come with clean hands.'''' This maxim signifies that the person seeking relief must not have been guilty of participating in the wrong from the consequences of which he asks relief. Thus one who has been guilty of a fraudulent transaction cannot, if injured* thereby, 24 186 EQUITY. [chap. VII r. have the transaction set aside .because of its illegal nature. Bispham's Prins. of Equity, 61 ; Wheeler v. Sage, 1 Wallace, 518. 16. WJiat promiTieTd branches of the law are founded upon the maxim, " Equality is equity " f The laws governing bankruptcy, the adjustment of marine losses, and the doctrine of contribution are all of them in- fluenced by this well-known rule of equity jurisprudence. Willard's Equity (Potter's ed.), 47 ; Francis' Maxims, 9 Max. 3. 17. Explain the maxim, '■'■Equity regards that as done which ought to ie done. ' ' This means that equity will frequently consider that property has assumed certain forms with which it ought in justice to be stamped, or that parties have performed certain duties which they ought in justice to fulfil. A familiar instance of the application of this doctrine is the doctrine of "equitable conversion." Bispham's Prins. of Equity, 63. 18. What is Tueant by t/ie mxixim, " Equity acts in perso- nam''' ? This means that equity will enforce obedience to its decrees by an attachment against the person or by some other mode of procedure directed against the person and not the property of the defendant. Bispham's Prins. of Equity, 65 ; Great Falls Mfg. Co. v. Worster, 23 New Hamp. 462. 19. State the meaning of the maxim, ''Equity acts specifi- cally. '' This maxim signifies that equity aims at putting parties exactly in the position which they ought to occupy : giving them in specie what they are entitled to enjoy, and putting a stop actually to injuries which are being inflicted. Bisp- ham's Prins. of Equity, 66 ; 1 Spence's Equity, 645. 20. Name four principal subjects of equitable Jurisdiction. Tru^s, frauds, mortgages, and assignments are among the CHAP. VIII.] EQUITY. ]87 most prominent of the many subjects over which equity has either exclusive, concurrent, or auxiliary jurisdiction. Bisp- ham's Prins. of Equity, 28-52 ; 1 Spence's Equity, 589. 21. By whom are equitable actions tried ? By a judge sitting without a jury. Hilliard's Elmts. of Law, 228, 325 ; Bispham's Prins. of Equity, 6 ; Chase's Black- stone, 640. 22. Is a court of equity hound to follow the prior decisions of other courts f It may be stated as a rule of general application that a court of equity is bound by the previous decisions of other courts having competent jurisdiction. " I do not know," says Lord Redesdale, " that equity ever does interfere, to grant a trial of a matter which has already been discussed in a court of law, a matter capable of being discussed there, and over which the court of law had full jurisdiction." This rule of law, compelling courts in most in- stances to follow previous decisions rendered in cases analogous to the one at bar, is known as the doctrine of res adjudi- cata. Simpson v. Hart, 1 Johns. Ch. 91 ; Arden v. Patterson, 5 Johns. Ch. 45 ; Hawley v. Mancius, 7 Johns. Ch. 174 ; Bateman v. Willoe, 1 Shoales and Lefroy, 201. 23. State the general effect of the American codes on equity jurisdiction and practice. The American Codes of Procedure have generally abolished the corporeal distinction formerly subsisting between courts of law and courts of equity ; but this is all they have in fact accomplished ; for though the forms by which this beautiful division of the law was in the past administered are done away with and new ones substituted in their stead, yet the princi- ples which were enunciated by Woolsey and perfected by Hard wick still shine with an undiminished splendor. Bisp- ham's Prins. of Equity, 25-8. 188 EQUITY. [CHAP. VIII. SEC. 2. EQUITABLE BIGHTS. 24. Wliat is meant iy the term '■^ accident '" as used in equity jurisprudence ? Accident is an unforeseen and injurious occurrence not attributable to mistake, neglect, or misconduct. Smith's Manual of Equity, 36 ; Story's Eq. Jurisprudence, § 78 ; Bispham's Prins. of Equity, 229. 25. Mention the principal eases of accident which equity will relieve against. The principal case of accident for which equity will afford relief are (1) cases of erroneous payments ; (2) defective exe cution of a power ; (3) lost and destroyed instruments ; (4) penalties and forfeitures. Bispham's Prins. of Equity, 230-39 ; Story's Eq. Jurisprudence, § 84. 26. Will the mere loss of an instrument he sufficient to ob- tain relief in equity ? No, it will not. The mere loss is not in itself sufficient to give equity jurisdiction ; the party injured must show that he has no sufficient remedy at law. Bispham's Prins. of Equity, 231. 27. When only will equity relieve against penalties and forfeitures ? When the damages are definitely ascertained or capable of ascertainment. Bispham's Prins. of Equity, 234 ; Nesbit V. Brown, 1 Dev. Eq. 30 ; 3 Lead. Cas. Eq. (3d Amer. ed.), 683. 28. Define '■'■mistake.''^ A " mistake ' ' exists when a person, under some erroneous conviction of law or fact, does or omits to do some act which but for the erroneous conviction he would not have done or omitted. Bispham's Prins. of Equity, 240 ; Haynes' Outlines of Equity, 132 ; Story's Eq. Jurisprudence, § 110 ; Kerr on Fraud and Mistake, 396. CHAP. VIII.J EQUITY. 189 29. What are the elements of mistake f (1) Materiality ; (2) mutuality ; (3) subject-matter within contemplation of all the parties ; (4) no laches on the plaintiffs part ; (5) a mistake of fact. Bispham's Prins. of Equity, 37, 247 ; Lewis v. Lewis, 5 Oregon, 169 ; Baxendale v. Seale, 19 Beav. 601 ; McFerran v. Taylor, 3 Cranch, 281. 30. Will equity relieve against a mistake of law ? No. Equity affords no ground for relief in case of a mistake of law. Bispham's Prins. of Equity, 240 ; Hant V. Rousmanier'' s Executors, 8 Wheaton, 174, s. c; 1 Peters, 14, 15. 31. What are the various remedies in cases of accident and mistake f Reformation, cancellation, or recision, and re-execution. Bispham's Prins. of Equity, 514 ; Cummings v. Coe, 10 Cal. 629 ; Wyche v. Greene, 11 Geo. 172. 32. Define notice. Notice is defined by an eminent writer upon equity juris- prudence to be "the legal cognizance of a fact." Bispham's Prins. of- Equity, 326 ; Basset v. Nosworthy, 2 Lead. Gas. Eq. 1. 33. Suppose a person purchases property with either act- ual or constructive notice of a prior existing claim, which is adverse to his own, what is the effect of this adverse claim upon his interest in the property ? He holds the estate subject to such claim. Bispham's Prins. of Equity, 327, 338 ; George v. Kent, 7 Allen, 16 ; Monteflore v. Brown, 7 H. L. Cas. 241 ; Penny v. Watts, 1 McN. & G. 150. 34. What is the doctrine of equitable conversion ? " By equitable conversion is meant a change of property from real into personal, or from personal into real, not actually taking place, but presumed to exist only by construction or intendment of equity." Bispham's Prins. of Equity, 368 ; 190 EQUITY. [chap. VIII. Fletcher v. AsTibruner, 1 Bro. 0. C. 497, s. c. ; 1 Lead Cas. Eq. 619. 35. Define fraud generally. Although CO arts have always evinced a disinclination to define this term, yet the definition given by one writer that ^' fraud is any Jcind of artifice by which another is deceived,''^ does not seem to be open to this objection, and is therefoi'e given here in answer to the above question. Willard's Equity (Potter's ed.), 147; Mad. Ch. Pr. 205; Mortlock v. Butler, 10 Ves. 306 ; Lawley v. Hooper, 3 Atkyns, 278. 36. WJiat are constructive frauds f By constructive frauds are meant such acts or contracts as, although not originating in any actual evil design or con- trivance to perpetrate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud. Story's Eq. Jurisprudence, § 258 ; Chesterfield v. Jans-sen, 1 Atkyns, 352. 37. State the division of fraud made hy Lord JSardwicJce in the case of Chesterfield v. Janssen. The learned judge in that case divided fraud into four classes — viz. : (1) Fraud arising from facts and circumstances of imposition ; (2) fraud arising from the intrinsic matter of the bargain itself ; (3) fraud presumed from the circumstances and condition of the parties contracting ; and (4) fraud affect- ing third persons not parties to the agreement. Chesterfield V. Janssen, 1 Atkyns, 301 ; Bispham's Prins. of Equity, 261. 38. State the essential elements of a fraudulent misrepre- sentation. 1. A representation made by the defendant which must have been false in fact. The representation may be by words or conduct. 2. The representation must have been made '^M(h fraudu- lent intent. This may be proved by showing — CHAP. VIII.] EQUITY. 191 {a) That the defendant knew the representation to be false. (5) That he believed it to be false. (c) That though he believed it to be true, he had no rea- sonable grounds for his belief. If, however, he did have rea- sonable grounds, there is no fraud. (d) That he made the statement as true of his own knowl- edge, when he was conscious he had no knowledge on the sub- ject. 3. The representation must have been made with intent to influence some person to act upon it, or under circumstances which would have enabled a reasonable man to foresee that some person would be likely to act upon it. 4. The plaintiff must have acted on the statement believ- ing it to be true, and must have been justified as a reasonable man in so acting. It is not deemed reasonable for him to act upon statements of opinion as if they were facts, nor to act upon statements as to obvious defects where the article is subject to his inspection. 6. Statement must be material. Test of materiality. Whether he would have acted other- wise if he had known statement to be false. 6. Pecuniary loss or damage must result as a proximate consequence. Bispham's Prins. of Equity, 261 ; Chase's Notes, 2 Col. Jur. 187. ' 39. Is the jurisdiction of equity concurrent or exclusive in cases of fraud ? In cases of fraud courts of equity have concurrent juris- diction with courts of law. This is a general rule, which is, however, not mthout its exceptions, one of which is that equity has no jurisdiction over cases of fraud used in obtain- ing a will. Bispham's Prins. of Equity, 256 ; Case of Brod- erick's Will, 21 Wallace, 603. 40. Oive instance in wMc7i fraud is presumed from the re- lation of the contracting parties. Fraud is presumed in two classes of cases — ^viz. : first, where one of the parties is laboring under some mental dis- 193 EQUITY. [chap. VIII. ability ; and secondly, where the transaction takes place Tinder undue influence. Instances which may be cited as coming within this classi- fication are drunkenness, duress, parties between whom con- fidential relations exist, such as (a) guardian and ward, (&) parent and child, (c) lawyer and client, and {d) trustee and cestui que trust. Bispham's Prins. of Equity, 288. 41. Wh&n and on what ground will equity relieve in cases of intoxication ? If a man is so far drunk that he is substantially non compos mentis, his contract will be invalid ; but if there is intoxication not so great in extent, equity wUl not interfere. It will, however, in cases of partial drunkenness lay hold of any circumstances tending to show actual imposition, and thus make out a case of actual fraud, especially if the drunk- enness has been brought about by the contrivance of the other party to the transaction. Bispham's Prins. of Equity, 290 ; Phillips V. Moore, 11 Missouri, 600. 42. On what ground may a judgment ie set aside by suit in equity f In all cases where fraud has been used in procuring a judgment courts of equity will declare it void, and formally set the proceeding aside because of the deceit practised. Wmard's Equity (Potter's ed.), 161-64, 353; Story's Eq. Jurisprudence, § 252. 43. What is the effect of laches by the party defrauded on the right to relief? They wiU bar his right to relief. Weaver v. Carpenter, 42 Iowa, 342 ; Sullivan v. Portland and Kennebec P. P. Co., 4 Otto, 806. 44. Can laches be imputed where the party is. ignorant of the fraud ? So long as a person remains, without any fault of his own, in ignorance of the fact that he has been defrauded laches cannot be imputed, and his right to recover for the in- CHAP. VIII. J EQUITY. 193 jury sustained remains unaffected. Stanhope's Case, L. K. 1 Ch. App. Cas. 161 ; Charter v. Trevelyan, 11 CI. & Fin. 714. 45. What is surprise f Whatever happens without the agency or fault of the party affected by it, tending to disturb and confuse his judg- ment, or to mislead him, and of which the opposite party takes an undue advantage, is a surprise. Willard's Equity (Potter's ed.), 206 ; Story's Ec[. Jurisprudence, § 120, note, % 251, note. 46. How far is surprise a ground of relief in equity f Equity will only afford relief incases where the surprise is accompanied with fraud and circumvention. AVillard's Equity (Potter's ed.), 206 ; 1 Fonb. Eq., B. 1, ch, ii., § 8. SEC. 3. EQUITABLE EEMEDIES. 47. State the principal kinds of equitable relief. The most imjiortant divisions of equitable relief are : Specific performance. Injunction, Re-exeeution, Reformation, Recision and Cancellation, Account, Partition, Dower, Part- nership Bills, Creditors' Bills, Discovery, Bills Quia Timet, Receivers, Writs of Ne Exeat and of Supplicavit. Bispham's Prihs. of Equity, 421-612. 48. What is the ground of equity jurisdiction in matters of account? The inadequacy of the relief granted by the courts of common law. Bispham's Prins. of Equity, 521 ; Story's Eq. Jurisprudence, §§ 442-49. 49. When will an action of Account lie ? ' ' The equitable remedy of Account is applied whenever it is required, as a matter of course, in all cases in which equi- table titles are to be protected and equitable rights enforced ; and also, in many instances, where jurisdiction has been as- sumed, by virtue of equitable remedies." Bispham's Prins. 25 194 EQUITY. [chap. VIII. of Equity, 526 ; Willard's Equity (Potter's ed.), 88 ; Story's Eq. Jurisprudence, §§ 441, 442. 50. DistinguisJi between open and stated accounts. An open account is one in wMch some term of the contract is not settled by the parties. An account stated is one in wMch a balance lias been struck by mutual agreement of the parties. 2 Atkyns' Ch. 251 ; 1 Ala. n. s. 62 ; Willard's Equity (Potter's ed.), 143. 51. Define the terms " surcharge''' and '■'falsify,'''' as used in the equitable action of account. Under the most approved forms of chancery practice, upon a bUl to open a stated account, if eiTors or mistakes were dis- tinctly charged, leave would be given to " surcharge and falsify." A surcharge is the statement of items omitted on the debit side of the account of the accounting party. It there- fore supposes credits to have been omitted which ought to have been allowed. A. falsification supposes that some item in the debits is entirely false, or in some respect erroneous. To surcharge, then, is a sin of omission, while to falsify is a sin of commission. Willard's Equity (Potter's ed.), 142, 143 ; Hoffman's Ch. Pr. 537 ; Story's Eq. Jurisprudence, § 525. 52. WJiat is meant by the " doctrine of contribution ' ' ? The equitable doctrine of contribution is said to arise when one of several parties who are liable for a common debt or obligation discharges the same for the benefit of all. In such a case he has a right to call upon his co-debtors to reim- burse him to the extent of their own liability. Bispham's Prins. of Equity, 41, 388 ; Story's Eq. Jurisprudence, §§ 492-505. 53. Explain the doctrine of exoneration. Exoneration is the right of a person secondarily liable to call upon the party primarily liable to discharge the debt, or CHAP. VIII.] EQUITY. 195 to reimburse him if he has paid it. Bispham's Prins. of Equity, 41 ; Willard's Equity (Potter's ed.), 106, 109, 110. 54. Explain the doctrine of subrogation. Subrogation is the name given to the right which a surety who pays the debt of his principal has to be substituted in the place of the creditor as to all the securities or means pos- sessed by the latter to enforce payment of the primary debtor. Bispham's Prins. of Equity, 394-98 ; Hayes v. Ward, 4 Johns. Ch. 123 ; Bering v. Earl of Winchelsea, 1 Lead. Cas. Eq. (4th Amer. ed.), 136. 55. W/iat is the doctrine of marshalling securities ? It is siich an arrangement of the different funds under administration as shall enable all the parties having equities thereon to receive their due proportions, notwithstanding any intervening interests, liens, or other claims of particular per- sons to prior satisfaction, out of a portion of these funds. Story's Eq. Jurisprudence, § 558 ; Bispham's Prins. of Equity, 399 ; Willard's Equity (Potter's ed.), 337. 56. W7tat is specific performance ? Specific performance is the actual accomplishment of a contract according to its terms by the promisor thereto. Fry on Specific Performance, § 1 ; Story's Eq. Jurisprudence, §§ 712-93 ; Bispham's Prins. of Equity, 362. 57. When will equity grant specific performance ? In general, courts vrill decree specific performance when there is no adequate remedy at law. Story's Eq. Jurispru- dence, §716; 1 Maddock Ch. Pr. 295; Bispham's Prins. of Equity, 421-50. 58. Is specific performance ever granted at law ? It is not. The original and sole foundation of the juris- diction of equity to decree specific performance is that an award of damages at law will not give an injured party the compensation to which he is entitled. Story's Eq. Juris- prudence, § 716 ; 5 Wait's Acts. & Defs. 763 ; Harnett v. Yielding, 2 Sch. & Lef . 553. 196 EQFITT. [chap. Till. 59. Wliat is the rule with regard to the specific perform- ance of contracts relating to personal property ? In regard to personality it is stated, as a generaj^le, that equity will not enforce specific performance of contracts re- lating to this species of property, for the reason that compen- sation by way of damages is ordinarily sufficient. Bispham's Prins. of Equity, 428. For exceptions to this rule see Boss V. Union Pacific R.R. Co., 1 Woolw. 26 ; Withy v. Cottle, 1 Sim. & Stu. 174 ; Fry on Specific Performance, § 33. 60. WJiat is an injtmction ? An injunction in its legal sense is a remedial writ, issuing by order of a court of equity, whereby a party is commanded to do or refrain from doing a particular thing specified in the writ of injunction. Bispham's Prins. of Equity, 451 ; Hilliard on Injunctions, ch. i., § 1. 61. WJiat are the different Mnds of injunctions f Injunctions are either (1) mandatory or (2) prohibitory. A mandatory injunction is one that compels the person enjoined to restore things to their former condition. A prohibitory injunction is one which is granted for the purpose of restraining the defendant from the continuance or commission of an act which is in its nature injurious to the in- terest of the plaintiff. Bispham's Prins. of Equity, 452, 453 ; Story's Eq. Jurisprudence, § 861 ; Joyce on Injunctions, 1309, 1310. 62. When will injunctions issue to restrain proceedings at law f Equity will interfere to restrain proceedings at law wher- ever, through fraud, mistake, accident, or want of discovery, one of the parties in a suit at law obtains or is likely to obtain an unfair advantage over the other, so as to transform the legal proceedings into an instrument of injustice. Bisp- ham's Prins. of Equity, 457 ; Earl of Oxford's Case, 1 Ch. Rep. 1 ; Atlamtic DeLaine Co. v. TredricJc, 5 R. I. 171. CHAP. Till.] EQUITY. 197 63. State instances in wMcTi injunctions will issue to pro- tect equitable rights. The writ of injunction ia frequently employed for the purposes of protecting and enforcing the equities of notice, estoppel, conversion, election, and adjustment, wherever those rights are in danger of being injuriously affected by legal pro- ceedings at common law. Bispham's Prins. of Equity, 463 ; Joyce on Injunctions, 1053. 64. When will the writ of injunction be employed to protect legal rights ? Injunctions will issue to restrain waste, trespass, nui- sance, and the infringement of the rights of literary property, patents, and trade-marks. There are also many other cases in which equity will interfere by injunction to protect legal rights from infringement ; but it is without the purpose of this work to answer the question at greater length here ; reference should accordingly be had to Bispham' s Prins. of Equity, 478-513, and Story's Eq. Jurisprudence, §§ 930-49. 65. WJiat is a bill of discovery ? At common law there \vas no means by which a party to an action could compel the adverse party to testify as to the matters in dispute, or by which the production of documents in his possession could be enforced. This difficulty gave rise to a rule of equity to the efPect that courts of chancery would compel a discovery of the matters desired to be ascertained ; in other words, the defendant in a biU in equity was obliged to answer under oath the allegations contained in the biU. The production of documents could also be enforced, and an opportunity for their inspection afforded. " Bills of discov- ery, therefore, in their technical sense, are bills which are filed for the purpose of assisting one of the parties to a common law action ; and which, seeking no independent relief themselves, aim solely at arming the complainant with the necessary and proper means for asserting or defending his right or title at law." Bispham's Prins. of Equity, 591-98 ; Story's Eq. Ju- risprudence, §§ 689-92. 198 EQUITY, [chap. VIII. 66. What is interpleader ? Interpleader is the remedy given to a person standing in the position of a mere stakeholder, against whom two or more persons severally make claim to the same thing, under different titles or in separate interests ; and who, not knowing to which ©f the claimants he ought of right to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims -of the parties ; and who, therefore, applies to the court, not only to protect him from being compelled to pay or deliver the thing claimed to both the claimants, but also from the vexation at- tending upon the suits which are or may be instituted against liim, upon the deposit in court of the thing claimed. Wait's Acts. & Defs. 149 ; Bispham's Prins. of Equity, 468-71. 67. What are the essentials of a Mil of interpleader f Such a bill must contain the plaintiff's statement of his rights negativing any interest in the thing in controversy ; but showing a clear title to maintain the bill. It must also set forth the claims of the opposing parties and have an- nexed the affidavit of the plaintiff that he is not acting in col- lusion with either of them. Bouvier's L. D. 203; Bispham's Prins. of Equity, 470-71 ; Willard's Equity, 313-23. 68. What is a hill of peace ? A bill of peace is one which is filed when a person has a right which may be controverted by various persons, at differ- ent times and by different actions. In such a case the court will prevent a multiplicity of suits by directing an issue to determine the right, and ultimately grant an injunction. 1 Bouv. L. D, 206 ; 1 Maddock, Ch. Pr. 166 ; 2 Johns. Ch. New York, 281 ; Bispham's Prins. of Equity, 466-67. 69. What is a bill " quia timet " ? A bill quia timet is one which is brought by a party who seeks the aid of a court of equity because he fears {quia timet) some future probable injury to his rights or interests, and not CHAP. VIII. 1 EQUITY. 199 because an injury has already occurred which requires any compensation or other relief. It differs from a Mil of peace in that the latter is usually brought after the right of the complainant has been estab- lished at law ; whereas a hill quia timet is brought to pre- sent anticipated mischiefs which have not absolutely occurred. Adams' Eq. 199 ; Story's Eq. Jurisprudence, § 826 ; 1 Wait's Acts. & Defs. 649, 654. 70. When is a Mil to perpetuate testimony MougM ? When the complainant is not actually threatened with any disturbance of his rights, but fears that he may be disturbed at some future time, when the evidence of his title may have been lost. Bills to perpetuate testimony are in the nature of Mils quia timet. Bispham's Prins. of Equity, 603 ; Story's Eq. Jurisprudence, §§ 1506-12. 71. What is a creditor's Mil ? Creditors'' Mils are bills filed by creditors for the purpose of collecting their debts out of the real or personal property of the debtor, under circumstances in which the process of execution at common law could not afford relief. Bispham's Prins. of Equity, 565 ;" 5 Johns. Ch. 280 ; 20 Johns. 554. 72. What is a Mil to take testimony de bene esse ? It is one which is brought to take the testimony of wit- nesses to a fact material to the prosecution of a suit at law which is actually commenced, where there is good cause to fear that the testimony may otherwise be lost before the time of trial. 1 Bouv. L. D. 207 ; Story's Eq. Jurisprudence, § 1513, 73. What is a cloud upon title, and what are appropriate equitable remedies f A cloud upon title is a title, or incumbrance, apparently valid, but in fact invalid. The appropriate remedy is a biU in equity- praying the court to declare the invalid title, or incumbrance, of no effect. 1 Wait's Acts. & Defs. 662; Bispham's Prins. of Equity, 604. 200 EQUITY. [CIIAP. Till. 74. State generally the powers, duties, and obligations of a receiver in equity. A receiver is an indifferent person between the parties ap- pointed by the court to collect and receive the rents, issues, and profits of land, or the produce of personal estate, or other things which it does not seem reasonable to the court that either party should do. His general duty may be said to be to take possession of the estate in the room and place of the owner thereof, and, under the supervision of the court, to manage the property so as to preserve the same, and (if possible) to make it profit- able for those who may ultimately be declared the owners thereof. The powers of a receiver are limited. All his actions are under the immediate control of the court ; and in order to a safe custody of the estate, he must constantly apply to the court for its advice and sanction. Bispham's Prins. of Equity, 606-10 ; Kerr on Receivers, ch. vii. 75. In what cases and for what 2>urposes may a court of equity appoint a receiver ? The cases in which a receiver may be appointed are nu- merous. Thus, the appointment may be made (1) either be- cause of the incapacity of the holder of the legal title ; or (2) because of the untrustworthiness of such holder ; or (3) be- cause of disputes between the legal owners ; or (4) because equitable rights might be endangered by leaving the property in the hands of the holder of the legal title ; or (5) because the rights of remainder- men or reversioners might be endangered. Bispham's Prins. of Equity, 607. 76. What is a writ of ne exeat ? A writ of ne exeat is one issued to restrain a person from leaving the jurisdiction of the court ; and was originally used for purposes of State only, but is now extended to private transactions. Bispham's Prins. of Equity, 52. 77. In what cases only is a writ of ne exeat issued ? As a general rule, the writ will be issued only in the case of equitable debts and claims. Bispham's Prins. of Equity, 611 ; Seymour v. Hazard, 1 Johns. Ch. 1. CHAP. XX.] EVIDENCE. 201 CHAPTER IX. EVIDENCE. SEC. 1. DEFIlSriTIONS. 1. What is meant by the word evidence in its legal accepta- tion ? Evidence is the means of establishing or disproving an allegation made in a court of justice. Johnson's Encyc. Ev. 2. Distinguish between evidence, proof, and demonstra- tion. The former is applied to the medium by which truth is established ; the latter to the effect of evidence. Demonstra- tion is that high degree of evidence found alone in mathe- matical truths. Moral evidence includes all evidence not acquired either from intuition or investigation. 1 Bouv. Law Die. 544. 3. Define competent, satisfactory, and cumulative evidence. Satisfactory evidence is such proof as satisfies an un- prejudiced mind beyond a reasonable doubt. Cumulative evidence is evidence of the same kind to the same point. Competent evidence is that kind of evidence which from the circumstances of the case is best adapted to the thing to be proved — e.g., " the production of a writing where its con- tents are the subject of inquiry." 1 Greenleaf, § 2. 4. WJiat is meant by the court taking judicial notice of a fact ? Where the court admits a document or fact in evidence without requiring any further proof as to its authenticity or truth. Stephens' Digest, art. 117, and 1 Bouv. Law Die. 545. 5. Of what things will a court talce judicial notice f As a general rule, whatever comes generally within the ordinary experience and knowledge of mankind, and especially 26 202 EVIDENCE. [chap. IX within the jurisdiction of the court. But inore speciflcally : Courts take judicial notice (a) of the existence of other sovereign powers, their flags, and seals of State ; (ft) the law of nations, mercantile customs, and usages ordinarily em- ployed ; public statutes of their own State and of the United States ; notarial seals and foreign admiralty and maritime courts and their seals (recognized everywhere), seal of the United States and their own State ; (c) things happening according to the ordinary course of nature — e.g., course of time, or action of tides ; {d) declarations of war by the United States ; (e) ex- tent of territory in their own State and the geographical sub- divisions ; (/) the existence of the legislature ; {g) the pro- cedure and rules of practice in the court itself ; (Ji) the authority and extent of the jurisdiction of other courts. Stephens' Dig. of Ev., art. 54 ; 14 Wall, 170 ; 83 K Y. 338 ; 106 U. S. 546 ; 3 Johns. 310-14. 6. Will the New York courts take judicial notice of tJie public laws of Mew Jersey ? The laws of New Jersey being considered as foreign laws, and as such laws are regarded as facts, the rule is that they should be alleged and proved like other facts of which the courts do not take judicial notice. N". Y. Laws of 1848, ch. 312 ; 5 jST. Y. 447 ; Stephens' Dig. of Ev., p. 118, note. 7. What is the general basis upon which all evidence is said to rest ? The custom and necessity of mankind to believe on the evidence of extrinsic testimony. A second ground of belief is " faith in human testimony as sanctioned by experience." Third, the relation which we know by experience exists be- tween certain facts conclusively proved and the fact in con- troversy. 1 Gr. Ev., §§ 7-12. 8. Distinguish between direct and indirect, or circumstan- tial, evidence. Direct evidence is proof of the existence of a fact without the intervention of any other fact. Indirect (or circumstan- tial evidence, as it is called in Greenleaf and other authors), is CHAP. IX. j EVIDENCE. 203 where the existence of a fact is inferred from other facts that are known. 1 Gr. Ev., § 13 ; 1 Bonv. Law Die. 644. SEC. 2. PRESUMPTIVE EVIDENCE. 9. State the various subdivisions of direct, circumstantial, and presumptive evidence. Direct evidence : (1) Primary ; (2) secondary. Circumstantial evidence : (1) Certain ; (2) uncertain. Presumptive evidence : (1) Presumptions of law ; (2) pre- sumptions of fact. 1 Gr. Ev., §§ 13 a, 14 ; 1 Bouv. Law Die. pp. 544, 545. 10. Define certain and uncertain circumstantial evidence. Certain, is " that from which the conclusion necessarily follows." Uncertain, " that from which it does not follow, but is only probable and obtained by a process of reasoning." 1 Gr. Ev., § 13 a. 11. Define and distinguish between presumptions of law and presumptions of fact. Presumptions of law are inferences which a court is com- pelled to draw. Presumptions of fact are inferences of a fact from other facts that are known. The main distinction is that the former are the subjects of fixed rules ; the latter are mere natural presumptions, such as appear from common experi- ence to arise from the particular circumstances of the case. 1 Stark, on Ev., § 27 ; 4 B. & Aid. 161 ; 1 Gr. Ev., § 44. 12. What is the difference between a conclusive and a dis- putable presumption, and give examples ? The former are such as cannot be contradicted. The latter are facts presumed to exist till the contrary is shown. 1 Gr. Ev , § 33 ; Stephens' Digest of Ev., art. 1. 13. What are conclusive presumptions of law founded upon ? Conclusive presumptions of law are founded upon grounds of public policy, being composed chiefly of cases between which 204 EVIDENCE. [chap. IX. the experienced conneotion is so general, that for the weal of the community they are not allowed to be contradicted by evidence to the contrary. 1 Grr. Ev., § 15 ; 1 Bouv. Law Die. 545. 14. Btate the different classes of disputable presumptions. 1. Presumption of innocence. In criminal cases the ac cused is presumed innocent untU the contrary is proved be- yond reasonable doubt. In civil cases, however, a preponder- ance of evidence decides. 3. Presumptions as to the course of trade — i.e., those founded upon the experience of human conduct in the coarse of trade. 3. The continuance of a partnership once shown to have existed. 4. Continuity : presumption as to the continuation of certain events in human affairs — e.g., presumption of death after seven years' absence without intelligence concerning the person. 5. Presumption in favor of the due execution of a solemn instrument. 6. Lajjse of time : presumption of payment after a lapse of twenty years. 7. Comity : presumption as to the existence of a friendly spirit among nations until the contrarj^ is proved. 8. Presumption of a grant from long-continued possession. 9. "Course of business:" presumption from the course of trade— e g., that things done in the regular course of busi- ness in a public office are correct, or that a letter was posted at the time specified in the post-mark. 2 Wh. Ev., §§ 1244, 1245 ; 9 Wend. 323 ; 53 Pa. St. 427 ; 2 Stark, on Ev. 590, ,688 ; Stephens' Dig. of Ev., art. 99 ; 1 Roberts' Eccl. R. 10; 7 Johns. 556 ; 15 Conn. 206 ; 130 Mass. 187. 15. What is the difference, if any, between the terms '^cir- cumstantial evidence" and '' presumptive evidence'''' ? Give examples. The former is sometimes used as synonymous with the latter term, but not with entire accuracy. The distinction CHAP. IX. J EVIDENCE. 205 taken by Bouvier is that circumstantial evidence is such as would most likely prove a doubtful fact by proof of other facts — e.g.^ the tendency of the laws of nature. While presump- tive evidence may be such as is, to a certain extent, gov- erned by an arbitrary rule — e.g.^ death presumed after a cer- tain period of continued absence. 1 Bouv. Law Die. p. 545. 16, Is there any presumption that an instrument has any consideration simply because it is under seal ? According to the English common law, a seal attached to a written instrument was conclusive proof of consideration. In. equity the recital can be overhauled on j)roof of fraud or mistake. On an executory instrument a seal is only pre- sumptive evidence of consideration which may be rebutted as if' the instrument were not sealed.' But a seal on an executed instrument is conclusive evidence of consideration, and is not rebuttable. Lowe v. Peers, 4 Burr, 225 ; My v. Alcott, 4 Allen, 506 ; Rountree v. Jacobs, 2 Taunt. 121 ; N. Y. Code Civil Procedure, § 840. SEC. 3. RULES GOVERNING THE PRODUCTION OF TESTIMONY. 17. Define the term, " burden of proof .'''' The duty of proving or disproving the existence or non-ex- istence of a fact in dispute between the parties. 1 Wh. Ev., §1363-357; 1 Gr. Ev., §74. 18. On whom does the burden of proof rest ? The rule is that the burden of proof rests upon the person holding the affirmative of the issue ; but by this it is not meant that the burden is not upon the party advancing the negative. The better way of stating the rule is that the burden is on the one undertaking to prove a point. 1 Wh. Ev., § 354 ; 74 Penn. St. 258. 19. Distinguish between primary and secondary evidence, and give examples. Primary evidence is the best evidence the case in its nature is susceptible of— e.g., in the case of documentary evidence 206 EVIDESrCE. [chap. IX'. the document itself should be produced. Secondary evidence is all evidence which is not primary — e.g.^ where oral testi-' mony is given of a written contract. Sebree v. Dorr, 9 Wheat. 558, 563 ; United States v. Gilbert, 2 Sumn. 19, 80, 81. 20. What is the difference between prima facie evidence and conclusive evidence f " Conclusive evidence is that which establishes the fact " to be proved. Prima facie evidence is " that which appears to be sufficient proof respecting the matter in question until something appears to controvert it, but which may be contra- dicted or controlled." 1 Bouv. Law Die. 613. 21. What allegations must be proved strictly as stated ? Allegations of matter of essential description must be proved strictly and literally. Descriptive allegations are es- sential, and therefore must be strictly proved when by their rejection a variance would be created. 1 Gr. Ev., §§ 56-73 ; Stark, on Ev. 373 ; Pur cell v. McNamera, 9 East, 160. 22. What is the meaning of the term ^'•variance "? ' ' A disagreement between the allegation and the proof in some matter which in point of law is essential to the charge or claim." Stephens on PL 107, 108 ; Ferguson v. Harwood, 7 Cranch, 408. 23. Explain the phrases '■'■res gestae'^ and '■'■res inter alios acta! ' as used in the law of evidence. By the phrase res gestce is meant any acts or declara- tions which by their connection with the facts in issue explaiu or qualify them. But these acts or declarations must so har- monize with the transaction or act to be proved as to obviously be one and the same transaction — e.g., where on a trial f op murder a witness testifies that he heard the deceased cry out, " I am stabbed," and on reaching his side, some seconds later, he heard him cry, " I am stabbed," " I am gone," "Dan Hacket stabbed me. " This evidence was considered relevant as part of the res gestai. By the phrase res inter alios acta alteri nocere non debet, or, as it is generally stated, res CHAP. IX. J EVIDENCE. 207 iTiter alios acta, is meant that merely because of a general resemblance existing between two or more facts, between which there is no actual connection, no inference should be drawn from the one to the other. Gomm. v. HacTcett, 2 Allen, 136 ; 1 Gr. Ev., §§ 108-22 ; 95 N. Y. 275 ; Stephens' Dig. of Ev., §§ 3-9 and notes ; 1 PhU. on Ev., 10th Edit. 508 ; People V. Gibbs, 93 N. Y. 470. 24. When is evidence of bad character admissible f I As a general rule, evidence of bad character is not admis- sible in criminal cases. Evidence of bad character is admitted in a criminal case when the fact that the accused person has such a character is itself a fact in issue, or that evidence has been given that he has a good character, in which case evi- dence that he has a bad character is also admissible. In civil cases such evidence is not admitted unless the nature of the action involves the general character of the party, or goes directly to affect it. In actions for malicious prosecution and false imprisonment, though evidence of bad character is not admitted to support the defence of probable cause, yet it is allowed in mitigation of damages. In actions for libel and slander def eudant may put plaintiff's general bad character in issue, because the general character of the plaintiff is in issue in such action, and defendant may show that plaintiff sus- tained no injury, because he had no character to lose. The character of an impeaching witness may be impeached by showing his general bad character. 65 IS". Y. 315 ; 50 Mich. 228 ; Bruce v. Priest, 5 Allen, 100 ; Drown v. Allen, 91 Pa. St. 393 ; 3 Gr. Ev., § 25 ; 5Q N. Y. 315 ; 2 Gr. Ev., § 424. 25. When is evidence of good character admissible f In criminal proceedings the fact that a person has a good character is deemed to be relevant. Where the character of a witness has been impeached, evidence of his general good character is admitted. Pratt v. And/rews, 4 N. Y. 493 ; 55 Vt. 142 ; People v. Fair, 43 Cal. 137 ; Slower v. People, 56 N. Y. 315 ; 67 N. H. 245. 208 EVIDENCE. [chap. IX. 26. What is the general rule as to '■'■ secondary evidence,'''' and in what cases is it competent ? The general rule as to such evidence is that it is not ad- missible so long as primary or better evidence is obtainable ; or as it is usually expressed, " The best evidence of which the case in its nature is susceptible of must be produced." In the following cases such evidence is admissible: (1) Where the original is shown or appears to be in the possession or power of the adverse party and he does not produce upon notice ; (2) when the original has been destroyed or lost ; (3) or is of such a nature as not to be easily moved ; (4) or is a public document ; (5) or the party has been deprived of the original by fraud ; (6) when the original is in the possession of a stranger who refuses to produce it upon being served with a subpoena duces tecum. Doe v. Ross, 7 M. & W. 102. 27. WJiat preliminary proof is necessary to entitle a mer- chanVs hook of accounts to be admitted in evidence ? The party wishing to produce such books in evidence must show that (1) they have been kept for the purpose indicated ; (2) that the entries were made contemporaneous with the de- livery of the goods ; (3) that they were kept by a person or persons whose duty it was for the time being to keep them ; (4) the party making it must have had competent knowledge of the fact, or it must have been part of his duty to have known it. 1 Gr. Ev., §§ 115-21 ; Stephens' Dig. of Ev., art. 27 ; Leland v. Cameron, 31 IST. Y. 115. 28. Wlien will a party not he required to prove a material negative averment in his pleading ? A party wUl not be required to prove a material negative averment when the subject-matter of such averment lies pem- liarly within the Jmowledge of the opposite par'ty— e.^., selling liquors without a license, also in cases of usury and fraud. 69 N. Y. 339 ; 49 How. Pr. 351. 29. What is the meaning of the rule of eoidence that the substance of the issue only need he proved ? The rule means that only such matters as are essential or CHA'P. IX. J EAaOENCE. 209 material to the proof of the fact in issue need be proved, col- lateral acts being generally excluded — e.g., in an action for malicious prosecution the plaintiff alleges that he was ac- quitted of the charge on a certain day. The substance of the issue here being the acquittal, the time is immaterial. 1 Wh. Ev., §29; IGr. Ev., §52. 30. What is the difference between allegations of matters of ' ' substance ' ' and allegations of matters of ' ' essential de- scription"? The former are proved substantially. The latter must be proved strictly. Turner v. Byles, 3 B. & P. 456 ; Ferguson V. Harwood, 1 Cranch, 408, 413. 31. State the rules governing the doctrine of the '■^res ges- tcB." (1) The declarations or acts must have been made or per- formed at the time of or so near to the principal fact under in- vestigation as to form part of or to be reasonably presumed to form part of such transaction ; (2) they must be so connected with the main transaction as to illustrate its character and exhibit the relations of the parties concerned therein ; (3) they must not have been narratives of past occurrences. 95 N. Y. 274 ; Hanover B. B. Co. v. Coyle, 55 Penn. St. 896. 32. What is the general rule as to the relevancy of evi- dence ? The evidence must correspond to the allegations and be confined to the point in issue. Best's Principles of Evidence, §§ 229-49. 33-. What is the rule as to there being degrees of secondary evidence ? In England and some few of the United States the doctrine is held that there are no degrees of secondary evidence, but if the original cannot be obtained, a party may produce any form of it, on the principle that the original being once accounted for any secondary evidence whatever may be resorted to by the party seeking to use the same— e,^., parole testimony in- 27 210 ETIDENCE, [chap. IX. stead of a copy. In most of the American States, however, the existence of degrees in secondary evidence being recog- nized, the rule is that a party mast produce the best form of secondary evidence that is or appears to be procurable by him — e.g., the production of a copy where the original cannot be produced. Doe v. Ross, 8 Dowl. 389 ; Doey. Jack, X Allen, 476 ; Hilts V. Colmn, 14 Johns. 182 ; 43 Pa. St. 191 ; 75 111. 315 ; Van Dyne v. TJiayre, 19 Wend. 166. 34. What are ancient documents, and what is the meaning of the rule that they prove themselves ? Ancient documents are such as are more than thirty years old. When such documents are produced from the proper custody the signature and every part of such document is presumed to be in the handwriting of the proper person. In case of a document having the appearance of being duly executed and attested, the presumption is that all the re- quisite formalities of such execution have been properly com- plied with. An ancient instrument under such circumstances is said to prove itself. Stephens' Dig. Ev., art. 88 ; 3 Johns. (N. Y.), 292 ; Whit&man v. Haneberry, 73 III. 109 ; 1 Gr. Ev., § 141. SEC. 4. HEAESAT. AND EVIDENCE EXCLUDED ON PUBLIC POLICY. 35. What is hearsay evidence f Hearsay is that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also in part on the veracity of some other person. 1 Phil. Ev. 185 ; 1 Wh. Ev., § 171 ; Sussex Peerage Case, n CI. & Fin. 85, 113. 36, Under what circumstances are the declarations of an agevi admissible in evidence against his principal? When the agent is acting under instructions as agent, and the statements made while acting in that capacity form part of the res gestce — i.e., statements made while acting in his CHAP. IX. J EVIDENCE. 211 capacity as agent, or so soon thereafter as not to admit of time for reflection. Xenia Bank v. Stewart, 14 U. S. 224 ; Ander- son V. Rome, etc. R. Go. 83 Pa. St. 517. 37. Wfiat are dying declarations ; when and on wJiat prin- ciples are tliey received in evidence ? Dying declarations are declarations made nnder a strong apprehension of approaching death, and as to the cause of such death, and are admissible only in cases of murder or manslaughter, and after the declarant has actually died. It is essential, moreover, that the declarant would not have been incapacitated, had he been alive, from testifying. The princi- pal reason for admitting such declarations is the great solem- nity of the declarant' s condition, which gives to such state- ments the character of an oath. The reason for their restriction is on the broad grounds of public policy. 2 Johns. 31, 36 ; 56 N. Y. 95 ; n Price Exch. 611 ; 3 C. & P. 698 ; 13 Ves. Ch. 514 ; 63 ]Sr. Y. 36. 38. What are the principal reasons why hearsay evidence is not admissible f 1. The sanction of an oath being here lacking, such testi- mony from its inception is irresponsible — e.g., A witness not produced on trial declares he saw a certain thing done by B. D, who is produced as a witness on the trial, testifies that he heard A state that he saw B do the act in question. Here A, the real witness, is not under oath when he makes his state- ment. 2. A second reason for the exclusion of such evidence is that no opportunity is offered to test the truth of the state- ment by cross-examination. 3. Where the witness merely repeats what he heard an- other say, he may not repeat such saying exactly as he heard it. 4. The one making the statement being under no appre- hension of being prosecuted for perjury might have spoken differently if under oath. 5. The rejection of such evidence is based upon grounds of public policy {a) of avoiding the increased expense and 212 EVIDENCE. [chap. IX Tinnecessary trouble imposed upon the opposite party from the necessity of his having to explain or refute such evidence ; (S) the waste of public time, and the danger that the jury may, from the admission of such proof, be led astray from the main issue and fail to appreciate the justice of the cause. ^ 1 Wh. Ev., § 172 ; 4 Cam. 414 ; Lund v. TyngsdorougJi, 9 Cash. 36, 40 ; Queen v. Hepburn, 7 Cranch, 296. 39. NaTne some of the exceptions to the rule, with reasons for them. Mr. Greenleaf classifies the exceptions to hearsay under two great divisions : I. The Apparent Exceptions ; II. The Real Exceptions. I. By apparent exceptions are meant such as at first blush appear to be exceptions, but in reality are not hearsay but original evidence. Under these apparent exceptions there are four cases : (1) Where the question is whether a particular statement was made, without reference to its being true or false — e.g., " The fact that a debtor is generally reputed insolvent at the time of an alleged fraudulent reference of a creditor is com- petent evidence tending to show that his preferred creditor had reasonable cause to believe him insolvent." (2) " Expressions of bodUy or mental feelings where the existence or nature of such feelings is the subject of inquiry" — e.g.., an action for damages by a husband against a railroad company resulting from injuries received by his wife while riding in cars of said company. Expressions of pain and suffering made by wife to physician upon an examination, for purpose of learning lier physical condition, are admissible as evidence. (3) Cases involving ^ef^/p'ree, including also the statements of those nearly related to the party whose pedigree is ques- tioned. The interest of the declarants in the person from whom the descent is traced, and the interest therefore in knowing the connections of the family, is the main ground upon which the law bases its reason for admitting hearsay evidence in cases of pedigree. OHAP. IX. J EVIDENCE. 213 (4) All such acts or transactions as form part of the res gestcE. The reason for receiving in evidence any declaration or act forming part of the same transaction is for the purpose of explaining or qualifying the transaction in issue to which it is relevant, and because in reality it is original and not hearsay evidence. 95 N". Y. 274 (where the doctrine of res gestce is fully discussed and the leading cases on the subject compared) ; 13 Ves. 140, 147 ; 18 Johns. 37 ; 35 N. Y. 487 ; Jacobs V. WMtcomb, 10 Cush. 255 ; Lee v. Killbourn^ 3 Gray, 594 ; Pelletreau v. Jackson, 11 Wend. 110, 123, 124. II. JReal exceptions.— ThQ various classes mentioned under this head are — (a) Matters of public and general interest — e.g., a claim to the use of a highway, a ferry, etc. The declaration must have been made by one supposed to be dead, and before a controversy arose. The declarant should be one having competent knowledge of the facts. (N. B. — Such declarations are only admitted in the case of ancient rights.) The reasons for admitting such declarations in evidence are : (1 ) The great difficulty in such cases of procuring direct evidence ; (2) the interest of the community in their truth ; (3) the probability of their trath. ib) Ancient possessions established by the admission of ancient documents in support of them. The difficulty attend- ant upon securing better evidence of such possessions, and the probability of their authenticity, are the main grounds for their being admitted in evidence. (c) Dying declarations. {d ) Declarations against interest. The one making such declarations should have had peculiar means of knowing the matter stated ; he should have no interest to misrepresent it ; it should be opposed to his pecuniary or proprietary interest ; the declarant must be deceased ; and, finally, the entry is only admitted in evidence when it charges the person making it either with having received money for a third person, or with having acknowledged the payment of money due himself. The reason for accepting such declarations is the great care that men generally take of their own interests, and therefore that the possibility of their being false is extremely improbable. 214 EVIDENCE. [chap. IX. (e) Emdence by a witness now absent, dead, or disqvAxli- fled, which was given on a former trial, provided (1) that the person against whom the evidence is to be given had the right and opportunity to cross-examine the declarant vrhen he was examined as a witness ; (2) that the questions in issue were substantially the same in the first as in the second issue ; (3) that the proceeding (if civil) was between the same parties or their representatives in interest. In all the States the death of a witness is a good ground for the admission of his former testimony ; and in New York (in civil cases) it is the only sufficient ground.. The reason for admitting this kind of evidence is that the statements have been already given under oath and subjected to the test of cross-exam- ination. (/ and g) The last two exceptions to the rule rejecting hearsay are admissions and confessions. Admissions are applied to civil transaction, and confessions to acknowledg- ments of guilt. The grounds of their admission are public policy and convenience — e.g., acquiescence or conduct. If the admission is made by a third person, they are received partly because it forms a part of the res gestce, partly because it is made against interest, and partly because of a privity with the one against whom they are offered. 1 Wh. Ev., §§ 182-201 ; 1 Gr. Ev., §§ 141-61 ; 83 N. Y. 178, 192 ; Olendow v. AtUn, 1 C. & M. 423 ; 6 Cow. 167 ; 96 Pa. St. 4 ; Chasey. Springvales Mills Co., 75 Me. 156. 40. What is admitted by payment of money into court ? By payment of money into court the defendant admits (1) that he owes the amount tendered in payment ; (2) that the plaintiff sues in the proper character ; (3) that the court has jurisdiction over the matter ; (4) that the contract has been properly set forth as described and duly executed ; (5) and that the contract has been broken as set forth in the com- plaint ; in short, the defendant by so doing admits all that it would be necessary for the plaintiff to prove for the purpose of recovering the debt. 2 Camb. 341 ; Bacon v. GharUon, 7 Gushing, 581, 583. CHAP. IX.] EVIDENCE. 215 41. When are declarations as to pedigree admissible in evidence ? Such declarations are admitted only when made by a de- ceased person connected by blood or marriage, with the per- son whose pedigree is in question, and therefore having an interest in the succession. Jackson v. Browner, 18 Johns. 37. 42. When are admissions receivable in evidence against a party though made by others than himself? Admissions against a party made by another than him- self are received in evidence when made by one identified in interest with such party. When the interest between parties is a joint interest, which joint interest is real and not apparent — e.g., the admissions of an agent against his principal, made in connection with some act done in the coarse of his agency, so as to form part of the res gestce, or with those performed under the express authority of his principle. So also the ad- missions of an attorney of record binds his client in all mat- ters relating to the trial and progress of the cause. A mere community of interest is not sufficient — e.g., the admission of an executor, etc., agaiinst his coexecutor. 83 N. Y. 480 ; 48 Vt. 314 ; 124 Mass. 185 ; 5 Pa. St. 473 ; Glarlc's Ex'rs v. Yan Raussdylc, 9 Cranch, 153 ; Spargo v. Brown, 9 B. & C. 935. 43. What is the general rule as to admissions being con- clusive evidence ? Admissions are conclusive wljen they amount to an estop- pel — e.g., where an admission has been acted upon by another party, such admission is conclusive against the one making it, on the ground of estoppel. So also an admission made in pleading and not corrected by an amendment is conclusive in the same case. 44 N. Y. 156 ; 1 Gr. Ev., §§ 204-8. 44. May a person testify as to his own age? A person may give testimony as to his own age, stating what he learned thereon from deceased parents. 68 Ala. 29 ; Hill V. Mdredge, 26 Mass. 234. 216 EVIDENCE. [chap. IX. 45. Distinguish between privileged communications in the law of evidence and in the law of libel and slander. Privileged communications in the law of libel and slander are defamatory communications, held excusable because made in the performance of some legal, moral, or social duty, or in the legitimate protection of one's business interests, or for other like causes. These communications are of two classes : (1) absolutely privileged, and (2) conditionally privileged. In the first the privilege exists even though the statement be made with express malice — e.g., statements, whether oral or written, made in legislative or judicial bodies. In the second class if actual malice can be proved it does away with the privilege. (These communications are held excusable on the ground of public policy.) In the law of evidence privileged communications are such as, owing to the peculiar character of the circumstances under which they are made, the law, on grounds of policy, does not allow to be offered in evidence — e.g., communications be- tween husband and wife, clergyman and parishioner, physi- cian and patient, etc. The great distinction, therefore, is that in the former case the communications are of a defamatory nature, while in the latter they are not. Addison on Torts, 951, 952 ; 1 G-r. Ev., §§ 239-59. SEC. 5. ADMISSIBILITY OP PAROLE EVIDEKTCE. 46. Suppose you wished to prove in evidence a written con- tract which had been lost, how would you do it ? First show that such paper had once existed and was a genuine instrument ; second, it must be shown that a faithful search has been made for said instrument, in which all the means offered from the nature of the case for discovering it must have been exhausted. If the proofs of the loss of the instrument are satisfactory, then secondary evidence of its contents will be admitted. But every source from which CHAP. IX.] EVIDENCE. 217 primary evidence could be adduced must iirst be exhausted before the admission of secondary e^^idence. 92 N. Y. 617 ; 42 jSr. J. L. 451 ; 9 Gray, 271 ; 11 Conn. R. 311 ; 4 Flor. R. 102. 47. Define terms patent and latent arnbiguity, and give an illustration of each. A patent ambiguity is one found on the face of an instru- ment — e.g.., where one leaves an estate to J. D. and J. S. and heirs. Here the ambiguity lies in the fact that the intention of the testator as to which he intended to limit the inheritance cannot be learned either from the words used alone or in con- nection with such extrinsic evidence as would be competent to determine with reasonable certainty the person. A latent ambiguity is one where the terms of the instru- ment are clear and explicit, but an ambiguity arises from some fact or circumstance collateral to the instrument— e.p'., where a testator leaves two bequests to " The Society for the Relief of Indigent Aged Females," and there were two soci- eties in the same city, neither of which could claim under the precise name used ; but oral evidence was. admitted to show that from the acts of the testator during his lifetime, in- dicative of a great partiality toward one of the claimants, that claimant was the probable beneficiary intended by the testator. 2 Wh. Ev., §§ 937^.^6 ; .'^2 N. Y. 12 ; 3 Gray, 72, 77 ; 8 Ring. 244 ; 28 Vt. R. 824 ; 21 Wend. 651 ; 52 N. Y. 191, 198 ; 36 la. 674. 48. State the rules of evidence in case of latent and 'patent ambiguity, and state reason for rule. The rule of evidence in respect to a patent ambiguity is that it cannot be explained by parole evidence, but the instru- ment is inoperative to the extent of such ambiguity. In re- spect to a latent ambiguity the rule is that oral evidence is admissible, to explain an instrument affected by such am- biguity. The reason of the rale in each is that in the latter case of ambiguity, evidence is admitted to dispel the ambiguity, because the intention of the testator being plain, the object is only to give effect to such intention. In the case ' 28 218 EVIDENCE. [chap. IX. of patent ambiguity, however, the intention not being ex- pressed, the law refuses to admit evidence to show what that intention was. 1 Gr. Ev., § 2971. 49. Is parole evidence adTnissible to show that a written contract has deen discharged ? Parole extrinsic evidence is admissible to show that an agreement in writing has been entirely discharged. If the writ- ing be under seal, as a general rule, the discharge should not be of an inferior nature ; but if it has been acted upon, extrinsic evidence of an inferior nature is admitted. Milword v. In- gram, 1 Mod. 206 ; 1 Gr. Ev., § 302. 50. State the general rules governing the admissibility of parole evidence to contradict, vary, explain, or interpret the terms of a written instrument. Parole contemporaneous evidence is inadmissible to con- tradict, add to, or vary the terms of a valid written instru- ment. Such evidence, howe^r, is admitted to explain an instrument whose meaning is ambiguous— e.^., where it is doubtful which of two persons or things mentioned in an in- strument are intended, but not to explain one whose meaning is clear. In the interpretation of a written instrument the court may resort to extrinsic evidence to find out the meaning of words used in an instrument— e.p'., where technical terms or foreign words are used. 1 Gr. Ev., §§ 275-77. 51. Does the rule that parole evidence is not admissible to vary a writing apply where the action in which the evidence is offered is not between the parties to the contract ? The rule as to the admissibility of parole evidence to con- tradict or vary a written contract applies only to parties and privies. In a contention between a party to an instrument and a stranger, parole testimony differing from the contents of the instrument may be introduced by either. 55 N. Y. Gr. Ev. 279. CHAP. IX.] EVIDENCE. 219 SEC. 6. WEITTEIS" EVIDENCE. 52. How would you prove the handwriting of a person ? When there is a question as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the supposed writer, that it was or was not written by him, is deemed to be a relevant fact. This acquaintance may be obtained (1) by having seen the person write (seeing him write once is sufficient) ; (2) by having received letters or other dociiments purporting to be written by that person in answer to documents written by himself or under his authority, and addressed to that person, or when in the ordinary course of business, documents pur- porting to be written by that person in answer to documents written by himself or under his authority, and addressed to that person, have been habitually submitted to \\vca—e.g.^ a public officer who is in the habit of seeing a large number of papers filed in his office bearing the signature of a certain judge, may give testimony as to the genuineness of a signature claimed to be that of the judge. (3) A third method is by com- paring a writing in dispute with one satisfactorily proved to the court to be genuine. The admission in evidence of writ- ings other than those of persons whose signatures are in ques- tion is not allowed. Stephens' Dig., art. 51 ; 54 IST. Y. 398 ; 95 ]Sr. Y. 373. 53. WJien an instrument is attested by a subscribing wit- ness, how can you prove its execution by the party to the in- strument f In such a case the subscribing witness should be called and testify to the genuineness of the execution, even though the law does not require the attestation of said instrument. This is the Common Law Rule, which is still prevalent in most of the States. (In New York, Rhode Island, and Illinois this has been changed by statute, and in these States an attested document not required by law to be attested may in all cases 220 EVIDENCE. [chap. IX. whatever be proved as if it was unattested. Laws of K". Y. 1883, c. 195 ; Pub. Stat. E. I., c. 214.) If it be shown that no such attesting witness is alive or cannot be found, it must be proved that the attestation of one witness at least is in his handwriting ^ it is not necessary, however, to prove the signa- tures of both the witnesses and the party ; proof of the signa- ture of either is sufficient. There are, however, a number of exceptions to this rule requiring the production of the sub- scribing witness. (1) Where the instrument is thirty years old, and has come from the proper custody and is free from all • just grounds of suspicion ; (2) where the instrument is pro- duced by an adverse party upon notice and he claims an iuv terest under it ; (3) where it is impossible to produce the wit- ness — e.g.^ death of witness ; being without the jurisdiction of the court, etc. ; (4) a recorded deed is permitted to be proved by a duly authenticated copy ; (5) where the instrument is not directly in issue, but is collateral to the issue. 1 Wh. Ev., §§ 723-25 ; 4 Gray, 523 ; 5 N. Y. 33 ; 10 Ad. & El. 727 ; 28 Pa. St. 266 ; 100 Mass. 515 ; 7 T. R. 265, 266 ; 1 Wh. Ev., § 724 ; 28 Barb. 481 ; 21 Vt. 433. 54. How are instruments in writing proved ? In such cases the instrument is regarded as the best evi- dence of its existence and contents, and in accordance with the rule requiring the best evidence the case in its nature is sus- ceptible of, the writing itself must be produced. In the fol- lowing cases oral evidence is admitted in proof of the contents of a written instrument: (1) public books— e.«7., records, etc.; (2) written appointments to office ; (3) voluminous facts ; (4) inscriptions on walls, monuments, etc. ; (5) examination of a witness on the voir dire; (6) admissions. Secondary evidence is also allowed to prove a writing when the same has been lost, destroyed, or the party refuses to produce the in- strument upon due notice ; in short, when the original docu- ment cannot be obtained. Proof of a document may also be given by copies known as (1) examined copies ; (2) office copies ; (3) exemplified copies. Gardiner v. Eherhart, 82 111. 316 ; Taylor on Evidence, § 495 ; Stephens' Dig. of Ev., articles 63-5. CHAP. IX.J EVIDENCE. 221 55. When may the laws of a foreign State or country he proved ? The laws of a foreign State or country, whether public or private statute or unwritten, must always be prcJved, and are not judicially taken notice of in the same manner as the public laws of the State enacting the same. 22 N. Y. 472. 5G. What is the rule as to the effect of aforiner recovery or judgment when introduced in evidence in another action ? The rule as laid down by Lord De Gray in the Duchess of Kingston's case, 20 Howells, St. Tr. 538. First, the Judg- ment of a court of concurrent jurisdiction directly upon the point is as a plea, a bar, or as evidence conclusive between the same parties upon the same matter directly in question in another court ; second, the judgment of a court of exclusive jurisdiction is in like manner conclusive upon the same mat- ter between the same parties, coming incidentally in question in another court for another purpose ; third, but neither the judgment of a court of concurrent or of exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incident- ally cognizable, nor of any matter to be inferred by argument from the judgment. Jordan v. Van Bpps, 85 N. Y. 427 ; 1 Gr. Ev., § 528. 57. Under what circumstances is it conclusive f In order to be conclusive, the judgment must be final ; it must appear to have been a decision upon the merits ; it must relate to the same property or transaction in controversy in the action to which it is set up in bar. Hull v. Blake, 13 Mass. 155 ; Wood v. Jackson, 8 Wend. 9 ; 57 Cal. 257 ; . 16 How (U. S.), 354 ; 11 G. & J. 173. 58. What is meant by the terms alteration and spoliation when applied to the terms of a written contract ? Alteration is an act done upon an instrument by one of the parties thereof, by which the meaning or language is 222 EVIDENCE. [chap. IX. changed. Spoliation is the act of a stranger in erasing or otherwise altering a written instrument. The effect of altera- tion, if material, is to vitiate the instrument. By spoliation, however, the instrument is not avoided, but if the instrument is destroyed by such an act secondary .evidence is admitted. J Gr. Ev., §§ 566-68 ; Stephens' Dig. of Ev., art. 89, and notes. 59. What is an exemplified copy of a document ? Exemplified copies are such as are attested either under the seal of a court or under the great seal of State. Stephens' Dig. of Ev., art. 77. 60. What is an examined copy of a document f It is a copy proved by oral evidence to have been com- pared with the original, and to correspond therewith. The examination is made either by one person reading both the original and the copy, or by two persons, one reading the copy and the other the original, and it is not necessary that each should alternately read both. 5 Wend. 387 ; N. Y. Code of Civ. Pro., § 963 ; Krese v. Neason, 66 Pa. St. 253. 61. Wliat is a certified copy of a document ? A certified or, as it is sometimes called, an office copy is a transcript made under the sanction of a public «>fficer of any deed, record, or other, instrument in writing deposited in his custody — an authenticated or certified copy of a record from the proper office. In fine, they are copies made by an author- ized officer. N. Y. Code of Civ. Pro., §§ 921-24, 928-41, 943-47, 957-62 ; 75 Pa. St. 26. 62. If a physician recover judgment hy default in a jus- tice's court, for the value of his medical services, can he after- ward J)e sued for malpractice ? And state reason for answer. Here the judgment recovered is conclusive both as to those things which were and those things which might have been settled in the action. The defendant having failed to set up the defence of malpractice, which he could and ought to have set up in the first action, for the purpose of defeating a recov- ery therein, is barred from doing so in another action for the CHAP. IX. J EVIDENCE. 223 same cause. 19 Hun, 325 ; Blair v. Bartlet, 75 N. Y. 150 ; 52 Wis. 650 ; 1 Pick. 435 ; 85 N. Y. 427 ; 48 N. Y. C, 76. 63. What is the effect of " splitting a cause of action'' ' and recovering judgment for apart of the claim? If part of a single or entire and inseparable cause of action be divided and judgment recovered, another action for the remaining part is barred. Secor v. Sturges, 16 N. Y, 548 ; Baird v. U. S. 96 U. S. 430. 64. State whether a judgment of nonsuit iars another ac- tion for the same cause ; give reason for answer. A judgment of nonsuit is no bar to another action for the same cause. The reason being that, in order to conclude all parties and privies, a judgment must be final and must be a decision upon the merits. In the case of a judgment by " non- suit' ' there has been no opportunity for a trial upon the merits, therefore another action for the same cause is not barred. K Y. Code of Civ. Pro., § 1209 ; 1 Gr. Ev., §§ 529, 530 ; Wehi V. Buckalew, 82 N. Y. 555 ; Hughes v. U. 8., 4: U. S. 232. 65. Can the pleadings ofaparty in one case he used against the same party in another case, and if so, under what cir- cumstances f Oive example. Yes, when admitting facts pertinent to the issue, though the suit be by strangers — e.g., an answer under oath is to be regarded as admissible against the party making it in all inde- pendent suits in which it is relevant. " But one defendant cannot be affected by his codefendant's answer." Such ad- mission of a party can be used in evidence against him in another case only as proof, open to rebuttal and explanation, that he admitted certain facts. But such pleading must be either signed by him or it must appear that it was within the scope of the attorney's authority to admit such facts. CooTc V. Baer, 44 N. Y. 158 ; 8tewart v. Stone, 3 G. & J. 514 ; 2 Wh. Ev., § 838. 66. Why are official registers recognized in evidence ? {a) Because they are required by law to be kept. 224 EVIDENCE. [chap. IX. (&) Because tlie entries in them are of pujslic interest and notoriety. (c) Because they are made under the sanction of an oath of office, or at least under that of official duty, 2 Phil. Evid., §§ 183-86. 67. What is necessary before entries in pttblic registries, etc., can he received in evidence? (1) The .entries must be promptly made, or without such delay as to injure their credibility ; (2) they must be made by a person whose duty it was to make them, and (3) in the mode required by law, if any has been prescribed. Doe v. Bray, 8 B. & C. 813. SEC. 7. WITNESSES AND THEIR EXAMINATION. 68. Who are competent as witnesses ? All persons are competent as witnesses who are not in- capacitated by (1) insufficient intellect — e.g., insanity ; (2) who have no pecuniary interest directly involved ; (3) who are not insensible to the obligations of an oath, and (4) who are not parties. 20 Johns. 142 ; 3 Bl. Comm. 798, note. 69. When may a husband testify in a cause in which his wife is a party ? The general nale is that such testimony is excluded. Where, however, a husband brings an action against his wife for personal injuries (or conversely), then he may testify against her. The husband's dying declarations may be received against the wife when she is charged with his murder. In collateral cases, where, the interest of neither is directly in- volved, the husband may testify against his wife, even though it tend to criminate or contradict her. 1 East P. C. 455 ; People V. Green, 1 Denio K. 614 ; 11 Mass. 286 ; 49 N". Y. 510 ; L. S. ]Sr. Y. 1867, ch. 887 ; IST. Y. Code of Civ. Pro., §§398, 399. 70. Give the practice as to compelling the attendance of a witness upon a trial of an issue of fact. The practice in New York State is (1) to show the witness the original subpoena ; (2) to deliver to him a copy of the CHAP. IX. J EVIDENCE. 225 subpcena or a ticket containing its substance, and (3) to pay Mm the fees required by law for one day's attendance and his travelling expenses. In criminal cases and in the Federal courts no fee need be tendered witness in order to compel his attendance. N. Y. Code of Civ. Pro., § 852. 71. What is a subpoena, and in case of failure to obey such instrument, to what is witness liable ? A subpoena is a writ issued for the purpose of compelling the attendance of a witness at a judicial proceeding. In case a witness properly subpoenaed fail to attend as ordered in such subpoena he is liable to punishment for contempt of court, and also for the damages sustained by the party aggrieved, in con- sequence of the failure, and $50 in addition thereto. N. Y. Code of Civ. Pro., § 853 ; 2 Bouvier, 676. 72. Are the opinions of a witness ever admissible in evi- dence, and if so, give an instance ? As a general rule, a witness is allowed to testify only to such facts as he has knowledge of ; but the opinion of experts who are called as witnesses is admitted in evidence — e.g., in respect to matters of handwriting. !N"on-experts also are per- mitted to give their opinions when called as witnesses, in such cases as men ordinarily would be capable of testifying to without any special training — e.g., whether a certain man was under the influence of liquor. Ill U. S. 612, 618 ; 82 Pa. St. 225 ; 43 N. Y. 279 ; 17 N. Y. 340 ; 14 N. Y. 562. 73. How would you proceed on a trial to impeach the credit of a witness f In the trial of a case the credit of a vritness is generally impeached on the cross-examination. In addition to cross- examination there are several other means employed to ac- complish this end : (1) by contradicting the facts testified to by him by the testimony of other witnesses ; (2) his credit may be impeached by the testimony of witnesses going, to aft'ect his general character for truth and veracity, in the neighborhood where he resides, and the question may be asked whether from 29 226 EVIDEKCE. [chap. IX their knowledge of his general reputation for truth they would believe him under oath. The reason why questions as to general character only are allowed and questions as to partic- ular facts excluded, is that a person is or always should be ready to defend his general character ; but when he is called upon to defend his character in respect to some particular fact, hei^may be taken by surprise and be unprepared to make a proper defence. (3) A third way of impeaching a witness is to show that he has made prior statements inconsistent with or contradictory to those made at the trial. But this rule only ap- plies where the matters are relevant or deemed to be relevant to the issue ; and it is also necessary, before proceeding to im- j)each the witness, to give him a chance to explain any incon- sistencies in his statements by questioning " as to the time, place, and person involved in the supposed contradiction." In the case of a letter, the witness must be first shown the let- ter, and if he admits that it is his writing, he may be examined upon it on his cross-examination ; but he cannot be asked whether he wrote the letter after reading to him only certain parts of the letter. 46 Pa. St. 465 ; 84 N". Y. 669 ; 20 N. J. Eq. 150 ; 11 Gray, 200 ; 29 Md. 194 ; 21 111. 33 ; 46 Mich. 160 ; 31 Minn. 322 ; 58 la. 199 ; 113 Wis. 181 ; 28 Kan. 591 ; 15 Ark. 359 ; 16 How. (U. S.), 38 ; 7 C. & P. 789. 74. What is the rule as to calling a suhsarihing witness in this State ? In the case of a vidll at least two of the subscribing wit- nesses must be produced and examined before admitting the same to probate. One contesting the probate of a will may, by filing a notice with the surrogate at any time before the proofs are closed, require the examination of all the subscrib- ing vsdtnesses to a written will. Where witness is dead, ab- sent, or disqualified, proof by affidavit must be given of such facts, and that (in case of alleged absence) after due diligence he cannot be found within the State or elsewhere ; but where witness is in the State, but because of sickness or extreme age it is impossible for him to attend at the trial, such disability must be shown ; and if required, his testimony must be taken in the manner prescribed by law and produced before the sur- CHAP. IX.] EVIDEKCE, 227 rogate, as part of the proofs. Where it is proved satisfactorily • that for any of the above causes the subscribing witness can- not be produced, or if he has forgotten or denies the execution of the will, then the instrument may be established by proof of handwriting. Records, deeds, or other instruments may be proved by duly authenticated copies without calling any subscribing witness, or the deed, as acknowledged or proved and certified so as to be recorded, may be given in evidence. N. Y. Code of Civ. Pro., §§ 2618-20 ; 935-37 ; 95 N. Y. 329. 75. What is ex-pert testimony ? It is the testimony of persons specially learned or skilled in some particiilar science or art. 1 Gr. Ev., § 280. 76. WJien may such testimony he produced? Such testimony is always allowed to be given when the language of an instrument is not understood by the court, either by reason of its inability to decipher the writing, or be- cause of the technical character of the document, or of some material fact known only by an expert. 2 Stark on Ev. 565, 566 ; 4 Hill, 129. 77. In what cases is a witness primleged from testifying ? In the following cases a witness is privileged from testify- ing : (1) Where his testimony would tend to criminate him or expose him to a penal liability. A witness cannot refuse to answer a question merely because it would expose him to a civil suit for damages or that it is likely to disgrace him. It is the duty of the court, however, to inform the witness as to whether his testimony will criminate him or not ; (2) where the answer will subject the witness to a forfeiture of his estate ; (3) when the answer, though not exposing the witness to a criminal prosecution or penalty or forfeiture, yet directly tends to degrade his character, if the question is not relevant and material he is privileged from answering, but otherwise if it is relevant or material. In the following cases witness is not al- % 228 EVIDENCE. [chap. IX. lowed to testify : (1) Confidential communications— e.^-., State secrets, husband and wife, clergyman and parishioner ; (2) pro- fessional communications— e.p-., lawyer and client, physician and patient. 2 Phil, on Ev. 420 ; Story's Eq. PL, §§ 607, 846 ; 6 Cowen, 254 ; 4 Wend. 250-54. 78. What is a leading question ? A leading question is one that suggests to the mind of the witness the answer desired by the questioner. Tait on Evi- dence, 427 ; Snyder v. Snyder, 6 Binn. 483. 79. Who may ask such questions ? Such questions are not permitted, as a general rule, on the direct examination ; but they are where the witness proves adverse to the party calling him, or in the interest of the opposite party, or where it appears that the witness is en- deavoring to conceal the truth, or for the purpose of aiding the memory of the witness, or to lead the mind of the witness up to the subject of inquiry — e.g., to hastily go over the lead- ing facts already proved, with the object of hastening the examination. On the cross: examination counsel for adverse party is allowed to ask such questions. 4 Wend. 247 ; 1 Gr. Ev.,"§§ 434, 435, 447. 80. What is the proper mode of questioning an expert f On the direct examination the question asking for the opinion of the expert should be stated in a hypothetical form, counsel being allowed to compose the question in accordance with any state of facts fairly justified by the evidence ; but counsel is not so restricted on the cross-examination. Where the facts are undisputed or the evidence is clear and easily remembered, the expert may be questioned as to his opinion, without stating the facts in a hypothetical form ; so also where the opinion of an expert is based upon his knowledge of the facts there is no necessity of stating a hypothetical case. Stearns v. Field, 90 IST. Y. 640 ; 97 N. Y. 501 ; 104 Pa. St. 117 ; 8 Allen, 169 ; 11 0. St. 333 ; 49 K. Y. 42 ; 66 N. Y. 641 ; 64 N. Y. 589 ; 83 N". Y. 358. CHAP. IX.] EVIDENCE. 229 81. In what cases may a person be lawfully arrested by an officer without a warrant ? (1) Where a party has committed a felony, or there are rea- sonable grounds of suspicion that he committed a felony, any officer may arrest the offender without a warrant ; but he has no right, however, to arrest a person without a warrant on suspicion that he has committed a misdemeanor ; (2) an officer may arrest a person' committing a felony or assault in his presence, or (3) one who interferes with him while trying to prevent a breach of the peace, as well as the person committing the same. ' The arrest may be during the continuance of the breach or, immediately thereafter. 3 Wend. N". Y. 484 ; Ad- dison on Torts, pp. 697-704 ; 1 Bouvier Law Diet. 145. 82. Sow may the production of a document in the hands of a person not a party be compelled ? By serving upon such person a subpoena duces tecum. Amy V. Long, 9 East, 473. 83. State the general rules as to the competency of wit- nesses in an action under the New, TorJc Code. The restriction of the Common Law placed upon parties and persons interested in a suit is regulated as follows by the Code, which provides that no one shall be excluded or excused from being a witness merely because of his or her interest in the event of the action or special proceeding ; or because he or she is a party or the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, or defended. It is further provided that in a civil action or special proceeding a party or person interested in the event shall not be examined in his own behalf or interest against the executor, or administrator, or survivor of a deceased person, or the committee of a lunatic, concerning a personal transaction between the decedent or lunatic, except the executor, etc., is examined in his own behalf or the testimony of the decedent or lunatic concerning the same transaction, etc., is given in evidence. Where a person has died since the trial of an action or is incapacitated 230 EVIDENCE. [chap. IX. from testifying, the testimony of such person taken or read at a former trial may be given or read in evidence at a new trial, subject to any legal objection as to competency, etc. The preceding provision that a husband or wife of a party shall not be excused from testifying in a cause in which either is a party is qualified by the following provision : A husband or wife is not competent to testify against the other in a trial for adultery, except to prove the marriage ; nor can either be compelled to disclose confidential communications made during the continuance of the marital relation. In actions for criminal conversation the plaintiff's wife is not a competent witness for plaintiff, but is for defendant as to any matter in controversy, except she cannot, without plaintiff's consent, disclose any confidential communication had or made between herself and the plaintiff. The old Common Law Rule as to the incompetency of a person rendered infamous by conviction for a crime or misdemeanor is abolished, and such persons are now competent witnesses ; the fact of their conviction, when proved, merely affects the weight of their testimony. Accord- ing to the early Common Law, clergymen and physicians could be compelled to disclose communications made to them in their professional capacity, but under the present law they are in- competent. The Code extends the same privilege to attorneys and counsellors as the Common Law. Finally it is provided that no competent witness is excused from answering a rele- vant question merely because it will tend to establish the fact that he owes a debt or is otherwise subject to a civil suit. But he is not required to answer any question that will criminate or expose him to a penalty or forfeiture. N. Y. Code of Civ. Pro., §§ 828-34, 837. 84. W7ien is collateral testimony receivable ? Collateral testimony is admitted where " the knowledge or intent of the party was a material fact, upon which evi- dence seemingly collateral and foreign to the point in issue had a direct bearing." Gilson v. Hunter, 2 H. Bl. 288 ; Gr. Ev., § 418. In the examination of a witness all questions as to collateral facts are excluded except on the cross-examina- tion. 1 Gr. Ev., § 448 ; 3 Rob. (La.) 366. CHAP. X.] PLEADINGS AND PRACTICE. 231 CHAPTEK X. PLEADINGS AND PRACTICE AT COMMON" LAW. SEC. 1. PARTIES TO ACTIONS. 1. What is pleading ? Pleading is the statement in a logical and legal form of the facts which constitute the plaintifiE's cause of action or the defendant's ground of defence. 3 Shars. Blackst. Comm. 293 ; 2 Reeves, Hist. Eng. Law, 267. 2. In whose name should an action be trought ? As a general rule, the action must be brought in the name of the person who has sustained a legal injury, against those who caused the injury or their personal representatives. 3 Shars. Blackst. Comm. 25 ; Comyns, Dig. 36, 205, 308. 3. Explain the meaning of the term '■'plaintiff in error.'''' The plaintiff in error is h&who sues out a writ of error for the purposes of appeal. In most- courts at the present time the party to the action who appeals is termed the appellant, and the person against whom the appeal is taken the respond- ent. 1 and 2 Bouvier's Law Diet. 128, 333. SEO. 2. FORMS OF ACTIONS. 4. State the different forms of actions. Actions are, because of their subject-matter, divided into three classes — viz., real actions, personal actions, and mixed actions. Steph, Plead. 3 ; 4 Bouvier, Inst, n, 3650. 5. What are real actions ? Real actions are those which are brought for the specific recovery of lands, tenements, or hereditaments. Steph. Plead. 3 ; Stearn'a Real Actions, 84. 232 PLEADINGS AND PEACTICE. [CHAP. X. 6. What is a personal action ? A personal action is one which is brought by an individual whose rights of personal safety or private personal property have been affected. 1 Bouvier's Law Diet. 78 ; Coke, Litt. 289 a. 7. WJiat are mixed actions ? A mixed action is one which partakes of the nature of both a real and a personal action, by which real property is demanded, and also damages for the injury sustained. 4 Bouvier, Inst. n. 3650. 8. How are personal actions generally divided ? Personal actions are in form either ex contractu — that is, for breach of contract ; or, ex delicto, for wrongs arising inde- pendent of any contract. 3 Blackst. Comm. 117 ; 1 Chitty, Plead. 2, 9. Mention, the principal Mnds of actions arising ex con- tractu. The most important of the different forms of actions aris- ing ex contractu are, assumpsit, debt, covenant, and detinue. 7 Term. 351 ; 4 Coke, 91 ; 4 Johns. New York, 89 ; 3 Blackst. Comm. 151. 10. Name the principal Mnds of actions arising ex delicto. Actions of this nature are case, trover, replevin, and tres- pass vi et armis. Steph. Plead. 15 ; 1 Chitty, Plead. 123 ; 8 Shars. Blackst. Comm. 146. 11. What is assumpsit? It is that form of action which lies for the recovery of damages for the non-performance of a simple contract. 7 Term. Rep. 351 ; Hilliard's Elmts. of Law, 245-49. 12. What is the action of debt ? It is that form of action which lies to recover a certain sum of money. It differs from the action of assumpsit in that CHAP. X.] PLEADINGS AND PRACTICE. 233 the sum for whicli the action is brought must be definitely known or readily ascertainable, an element not requisite to the latter action. 2 Greenleaf Ev., § 279 ; 3 Sneed, Tenn. 145 ; 20 111. 120 ; 1 Dutch. N. J. 506 ; 2 A. K. Marsh, Ky. 264. 13. Describe the action of covenant. It is that form of action which lies to recover damages for breach of a contract under seal. It is frequently a concurrent remedy with debt, but never with assumpsit. It is the only proper action where the damages are not liquidated and the contract is one under seal. Chitty, Plead. 112, 113 ; 4 Dane, Abr. 115 ; 23 Pick. Mass. 455. 14. What is the action of detinue, and when will it lie ? It is the only proper remedy by suit at law for the recov- ery of personal property in specie. In order that this may lie, the taking of the chattel must have been lawful and the reten- tion illegal. 3 Blackst. Comm. 151 ; 1 Chitty, Plead. 112, 113. 1 5. What is an action on the case ? It is that form of action which lies to recover damages for certain torts for which no remedy was provided by the more ancient forms of action. Steph. Plead. 15 ; 17 Penn. St. 293 ; 6 Munf. Va. 27, 113. 16. What is an action of trover ? In substance it is a remedy to recover the value of -personal property wrongfully converted by another to his own use ; tlie form supposes that the defendant might have come law- fully by it, and if he did not, yet by bringing this action the plaintiff waives the trespass ; no damages are recoverable for the act of taking ; all must be for the act of converting. The action of trover or conversion was, in its origin, an action of trespass on the case for the recovery of damages against a person who 'haA found goods and refused to deliver them on demand to the owner, but converted them to his own use ; from which word, finding {trouver), the remedy is called an action of trover. 1 Chitty, Plead. 145, 146 ; 8 B. & Aid. 687 ; 1 Burr. 31 ; 1 Bla. Kep. 67, 68. 30 234 ' PLEADINGS AND PRACTICE. ' [CHAP. X. 17. DeflTie the action of replevin. An action of replevin is that whereby the owner of goods unjustly taken and detained from him may regain possession thereof through the medium of, and upon application to, the sheriff, upon giving him security to prosecute an action against the person who seized. It is principally used in cases of dis- tress, but it seems that it may be brought in any case where the owner has goods taken from him by another. 1 Chitty, Plead. 162 ; Bogers v. Arnold, 12 Wend. R. 39 ; 3 Blackst. Comm. 147, 148. 18. State the different divisions of replevin. , The action of replevin is of two sorts— namely, in the detlnet or detinuit ; the former, where goods are still retained by the person who took them, to recover the value thereof and damages ; and the latter, as the word imports, when the goods have been delivered to the party for the recovery of damages only. The former of these, it should be stated, how- ever, is now considered obsolete. 1 Chitty, Plead. 162 ; Com. Dig. Pleader, 3 K. 10. 19. When will an action of trespass lie ? Tlie action of trespass only lies for injuries committed with force, and, generally, only for such as are immediate. The intention of the wrong-doer is in general immaterial in this action. The term trespass, in its most extensive significa- tion, includes every description of vyrong, on which account an action on the case has been usually called " trespass on the case;" bnt technicallj'- it signifies an injury committed vi et armis. The difference between trespass and an action on the case is that in the former the plaintiff seeks redress because of an immediate injury, and in the latter because of a conse- quential injury. 1 Chitty, Plead. 166, 167 ; 7 East, 134, 135 ; 1 Eeeve's Hist. Eng. Law, 263, 266, 340, 347. 20. Describe the action of ejectment. This action lies for the recovery of the possession of real property in which the lessor of the plaintiff has the legal interest and a possessory right not barred by the statute of CHAP. X.J ' PLEADINGS AND PRACTICE. 235 limitations. It is not a o'eal action nor a mere personal action, but is what is termed a mixed action, partly for the recovery of the thing or property itself, and partly to recover damages. Although the damages in an action of this nature are, as a rule, merely nominal, yet in some cases between land- lord and tenant such damages are, in effect, the full amount of the mesne profits up to the time of trial. Ejectment is an action founded upon a legal fiction, being brought in the name of a nominal plaintiff, whose supposed right to the possession is founded on a supposed demise made to him by the party or parties really entitled to the possession of the property. The action cannot be commenced until the real plaintiff's right of entry has accrued. The action is only sustainable for what in fact or in point of law amounted to an ouster or dispossession of the lessor of the plaintiff. But such ouster may and usa9,lly is effected by merely Jiolding over ; and an intermediate tenant may be sued for the holding over by his under-tenant, though against his will. 1 Chitty, Plead. 187-92 ; 3 Blackst. Comm. 199. 21. W7ien the plaintiff has brought his action in an im- proper form, may the defendant take advantage of such error, and if so, in what different ways f When the objection to the form of the action is substan- tial, and appears upon the face of the declaration, without regard to extrinsic facts, it may be taken advantage of by demurrer, or by motion in arrest of judgment, or by writ of error. 1 Chitty, Plead. 197 ; 4 Moore, 532 ; 1 B. & P. 476. 22. May actions ex contractu he joined with those ex delicto ? It is a rule of general application that actions in form ex contractu cannot be joined with those in form ex delicto. 1 Chitty, Plead. 201 ; 2 Saund. 117 c. ; 6 B. & C. 268 ; 6 East, 335. 23. If a plaintiff have a number of causes of action of a similar character, how should he proceed f Where the plainti'ff has several demands of a similar kind, recoverable in different forms of action, he frequently may, 236 PLEADINGS AND PEACTICE. ' [CHAP. X. and in such a case ought to, proceed for the whole in that form of action which will embrace his various claims. 3 East, 70 ; 1 Chitty, Plead. 209. 24. Is the action of debt ever a superior remedy to tfie ac- tion of assumpsit ? The action of debt is frequently preferable to assumpsit or covenant, because the judgment in debt by nil dicit, etc., is in general final, and execution may be issued immediately, without the expense and delay of a writ of inquiry. 1 Chitty, Plead. 211 ; Tidd, 9 Ed. 573. 25. A having a cause of action against B, and several different forms of action, by either of which he may recover, adopts one of them, can he afterward discard the method which he has adopted, and proceed against Bby a different form than that originally selected ? In most cases he may. The circumstance of a party hav- ing elected one of several remedies by action will not, in general, preclude him from abandoning such suit, and after having duly discontinued it, he may adopt any other remedy. 1 Chitty, Plead. 212 ; 1 Ld. Raymd. 719. SEC. 3. PLEADING IN GENERAL. 26. What is main principle governing the science of plead- ing ? The grand object contemplated by the system is the pro- duction of a certain and material issue between the parties upon some important part of the subject-matter of dispute between them. 1 Chitty, Plead. 213 ; Pinch's Law, 396. 27. What facts are necessary to be stated in the pleadings f In general, whatever circumstances are necessary to con- stitute the cause of complaint, or ground of defence, must be stated in the pleadings, and all beyond is surplusage ; facts only are to be stated, and not arguments, inferences, or mat- ters of law. 1 Chitty, Plead. 214 ; 1 Ld.Raymd. 171 ; Tucker V. Randall, 2 Mass. Rep. 283. CHAP. X.] PLEADINGS AND PRACTICE. 237 28. Is surplusage ever assignable as a cause of demurrer ? It is not ; but surplusage in tendering an issue or in ot/ier part of pleading tending to embarrass the opponent, may be assigned specially as cause of demurrer. 1 Chitty, Plead. 230 ; BisMori v. Evans, 2 Camp. M. & Ros. 1617. 29. What is tJie -proper method of stating facts in a plead- ing f The principal rule is that statements of fact should be set forth with certainty. Less certainty is requisite when the law presumes that the knowledge of the facts is more properly or peculiarly in the opposite party. 1 Chitty, Plead. 232-36 ; 13 East, 112. 30. State a leading rule of construction as applied in the law of pleading. A well-known maxim is " that everything shall be taken most strongly against the party pleading," or rather, that if the meaning of the words be equivocal, and two meanings present themselves, that construction shall be adopted which is most unfavorable to the party pleading ; because it is to be presumed that every person states his case as favorably to Aimself as possible. 1 Chitty, Plead. 237 ; Pearce v. Ghamp- neys, 3 Dowl. 276. 31. Under what principal heads are the pleadings usually classed f Pleadings are arrangeable under two heads : (1) the regu- lar parts of pleading, being those which occur in the ordinary course of a suit, and (2) the irregular or collateral, being those which are occasioned by mistakes in the pleadings on either side. 1 Chitty, Plead. 232 ; Vin. Abr. Pleas, etc. C. ; Bac. Abr. Pleas, etc. A. 32. Give the regular parts of pleading ? The regular parts of pleading are : First, the declaration, or count ; second, the plea ; third, the replication ; fourth, the rejoinder ; fifth, the sur-rejoinder ; sixth, the rebutter ; seventh, the sur-rebutter ; eighth, pleas puis darien continu- 238 PLEADINGS ANB PRACTICE. [CHAP. X. ance, where the matter of defence sxisQS, pending the suit. 1 Chitty, Plead. 232-40 ; Vin. Abr. Pleas, etc. C. 33. What are the irregular parts of pleading f The irregular or collateral parts of pleading are : First, demurrers to any part of the pleadings mentioned in the previous question ; second, demurrers to evidence given at trial ; third, Mils of exception ; fourth, pleas in scire facias ; fifth, pleas in error. 1 Chitty, Plead. 232-40; 7in. Abr. Pleas, etc. C. 34. What are the general requisites of a declaration ? The general requisites or qualities of a declaration are : First, that it correspond with the process, and in bailable actions with the affidavit to hold to bail ; second, that it contain a statement of all the facts necessary in point of law to sustain the action, and no more ; and third, that these cir- cumstances be set forth with certainty and truth. 1 Chitty, Plead. 244; Com. Dig. Pleader, C. 13; Co. Lit. 303 a ; Plowd. 84, 122. 35. State the several parts and particular requisite of a declaration. They are: First, the title of the declaration as to the court ; second, the title of the declaration as to the time when it is tiled or delivered ; third, the venue in the margin ; fourth, I he commencement ; fifth, the hody ; according to the form of action — e.g., in assumpsit, six points are principally to be attended to — namely, the inducement, consideration, promise, averments, breach, and damages ; sixth, the conclu- sion ; seventh, the prqfert of deeds, probates, letters of ad- ministration, etc. ; eighth, the statement of pledges to be discontinued ; ninth, other miscellaneous points. 1 Chitty, Plead. 263. 36. What are the necessary elements of every cause of ac- tion ? They are said to consist of three different points : (1) the right, (2) the injury, (3) the consequent damage. 1 Chitty, Plead. 287 ; 2 Saund. 366. CHAP. X.] PLEADINGS AND PRACTICE. 239 37. What is meant 'by the ^'•inducement'''' in an action of assumpsit ? Tlie inducement in an action of assumpsit is in the nature of a preamble, stating the circumstances under which the con- tract was made, or to which the consideration has reference. 1 Chitty, Plead. 290 ; Tidd, 9th ed. 436. 38. In an action of assumpsit what consideration must appear on the face of the declaration, and how should it be stated ? In declaring upon a contract not under seal, it is in all cases necessary to state that it was a contract that imports and implies consideration, as a bill of exchange or promissory note, or expressly to state the particular consideration upon which it was founded ; and it is essential that the considera- tion stated should appear to be legally sufficient to support the promise for the breach of which the action is brought. 1 Chitty, Plead. 293 ; 4 Johns. Rep. 235. 39. What are the most noteworthy features of good plead- ing ? The perfection of pleading is said to consist in combining brevity with the requisite certainty and precision. 1 Chitty, Plead. 304 ; Steph. on Plead. 417. 40. What is an averment in the law of pleading ? An averment signifies a positive statement of facts in op- position to argument or inference. 1 Chitty, Plead. 320 ; Cowp. 683, 684 ; Bac. Abr. Pleas, B, 41. Wfiat is a variance? It is a disagreement or difiPerence between two points of the same legal proceeding which ought to agree. 1 Chitty, Plead. 385 ; 12 N. H. 396 ; 2 Bouvier's Law Diet. 632. 42. What are the common counts in assumpsit ? They are said to be four in number— viz.: (1) the in- debitatus count, (2) the quantum meruit, (3) the quantum 240 PLEADINGS AND PRACTICE. [CHAP. 2. valebant, and (4) the account staied. 1 CMtty, Plead. 341 ; 1 Wils. 33. 43. In an action of tort what should the declaration state? The declaration should state : First, the matter or thing affected ; second, the plaintiff's right thereto ; third, the m- jury ; 2in.di fourth, the damage sustained. 1 Chitty, Plead. 376 ; 5 T. R. 143. 44. How are damages classified ? Damages are either (1) general or (2) special. General damages are such as the law implies or presumes to have accrued from the wrong complained of. Special damages are such as really took place and are not implied by law. 1 Chitty, Plead. 395 ; 1 Adol. & EU. 43. 45. What is the claim of conusance? The claim of conusance, or cognizance, of a suit is defined to be an intervention by a thirdperson, demanding judicature in the cause against the plaintiff, who has chosen to commence his action out of the claimant's court. Gilb. C. P. 192 ; 3 Blackst. Comm. 298 ; 1 Chitty, Plead. 422. 46. How should a plea to the jurisdiction he pleaded ? A plea to the jurisdiction must be pleaded in person, but a claim of conusance may be made by attorney. 6 Vin. Abr. 599 ; 1 Chitty, Plead. 422. 47. Wliat is the technical meaning of the word " defence " as used in the law of pleading ? Defence is defined to be the denial of the truth or validity of the complaint, and does not merely signify a justificaiion. 3 Blackst. Comm. 296 ; 1 Chitty, Plead. 428. 48. What is meant hy oyer f Oyer is a prayer or petition recited or entered in pleading, that the party may hear read to him the deed, etc., stated in the pleadings of the opposite party, and which deed is by in- CHAP. X.] PLEADIJSTGS AKD PKACTICE. 241 tendment of law in court when it is pleaded witl a profert. 3 Blackst. Comm. 299 ; 1 CMtty, Plead. 430. 49. Define im/parlance. Imparlance, in its most general signification, means time given by the court to either party to answer the pleading of his opponent, as either to plead, reply, rejoin, etc., and it is said to be nothing else but the continuance of the cause till a further day. 1 Sel. Pr. ch. vii., § 3 ; 1 Chitty, Plead. 436. 50. How may the defendant reply to the first pleading of the plaintiff? The defendant may answer the declaration either by a demurrer or a plea. Hilliard's Elmts. of Law, 284 ; Steph. Plead. 38, 39. 51. What is a plea ? It is the defendant's answer (A fact to the plaintiff's decla- ration. Hilliard' s Elmts. of Law, 284 ; Lawes, Plead. 36. 52. Give the two principal classes to one or the other of which all pleas belong. Pleas are either (1) dilatory, or (2) peremptory. Steph. Plead. 63 ; Lawes, Plead. 36. 53. What are dilatory pleas ? Dilatory pleas are those which tend to defeat the particu- lar action to which they apply on account of its being brought either (1) before the wrong court, or (2) by or against the wrong person, or (3) in an improper form. Steph. Plead. 63 ; Lawes, Plead. 36. 54. What are peremptory pleas ? They are those which lead to an issue which settles the dispute, and are termed pleas in bar of the action. 1 Chitty, Plead. 441 ; Steph. Plead. 2d ed. 67. 31 242 PLEADINGS AND PEACTICE. [CHAP, X. 55. What are the distinguisMng characterisUis of pleas in bar ? Pleas in bar go to the merits of the case, and deny that the plaintiff has any cause of action. They either conclude the plaintiff by matter of estoppel (which, however, rarely occurs in a plea), or they show that the plaintiff never had any cause of action ; or admitting that he once had, insist that it has been determined by some subsequent matter. 1 Chitty, Plead. 469 ; Steph. Plead. 2d. ed. 75. 56. What is '■'■pleading the general issue''"' f Pleading the general issue consists of a general denial of the whole declaration without offering special matter. 1 Chitty, Plead. 604-5 ; 1 Saund. 103, n. 57. Wliat are the " general qualities " of a plea in bar ? The " general qualities " of a plea in bar are : First, that it be adapted to the nature and form of the action and also be conformable to the count ; second, that it answer all which it assumes to answer, and no more ; third, that it deny or admit and avoid the facts ; fourth, that it be single ; fifth, that it be certain ; sixth, that it be direct and positive, and not argumentative ; seventh, that it be capable of trial ; eighth, that it be true. 1 Chitty, Plead. 521 ; 1 Rol. Rep. 216 ; 4 Taunt. 164. 58. How should '■'■confession and avoidance'^ be pleaded? The principles of pleading and express rules require, in general, that matter in confession and avoidance should be specially pleaded, and not given in evidence under the general issue or traverse. Confession and avoidance is in substance an admission of the truth of the facts stated in a pleading, but a denial, be- cause of extrinsic matter, of their legal force. 1 Chitty, Plead. 515, 526 ; Barnett v. Olossop, 1 Bing. N. C. 633. * 59. What is meant by ^^ giving color " to a pleading f To " give color" is to give credit for an apparent or prima facie right of action. The plea of avoidance must give color CHAP. X.j PLEADINGS AND PRACTICE. 243 to the declaration of the plaintiff. 1 Chitty, Plead. 527 ; Qol- lett V. FUnn, 5 Cowen, 466. 60. What is " sham " pleading f Sham pleading is the pleading of a matter known by the party to be false. It is resorted to for the purpose of delay or other unworthy object, and, being considered a very culpa- ble abuse of iustice, has often been censured and set aside with costs. 2 B. & A. 198 ; 1 Chitty, Plead. 541. 61. What is the rule with reference to the validity of a plea which is bad in part ? A plea which is bad in part is bad in toto. 1 Chitty, Plead. 545 ; Ten Eyck v. Waterhury, 7 CoTven, 51 ; Perkins V. Burianic, 2 Mass. 81. 62. Against whom is a plea in har to ie construed most strongly f The general rule is that it is to be construed most strongly against the defendant. 1 Chitty, Plead. 545 ; 1 Saund. 276 a. 63. Will surplusage cause the disallowance of a plea ? Surplusage will not in general vitiate a plea. 1 Chitty, Plead. 545 ; 2 Saund. 305, 306, note 14, 64. WJiat is the replication f The plaintifE's answer to the defendant's plea or answer. Before the plaintiff replies or demurs to the plea, he should consider whether or not he may treat it as a nullity, and sign judgment with or without leave of the court, as on aocount of the plea being such a description of sham plea that the court will not permit it to be pleaded, as being totally inappropriate to the form of action. 1 Chitty, Plead. 577 ; 1 Eol. Eep. 216. 65. What are the parts of a replication to a plea contain- ing new matter ? They are: First, the commencement; secondly, tla.ehody, and thirdly, its conclusion. 244 PLEADINGS AND, PEACTICE. [CIIAP. X. The commencement in such a case professes wholly to deny the effect of the defendant' s plea. The body shows the^ ground on which that denial is founded. The conclusion is either to the country or to the record, if it merely deny the plea ; but if the repKcation contain new matter it should conclude with a verification and a prayer that judgment may be awarded in the plaintiff's favor. 1 Chitty, Plead. 601 ; 2 New Rep. 363. 66. What is new assignment ? It is a more minute and circumstantial manner of restat- ing the cause of action, or some part thereof, alleged in the declaration, in consequence of the defendant having, through mistake or design, omitted to answer it in his plea. It is therefore in the nature of a new declaration, or rather it is a more precise and particular repetition of the declaration in those casfes where the law permitted a general form of declar- ing, equally applicable to two or more states of facts, but leaving it doubtful in the description which was intended. 1 Chitty, Plead. 624 ; 3 Blackst. Comm. 311. 67. What are the qualities of a replication? The qualities of a replication in a great measure resemble those of a plea, and are : First, that it must answer so much of the plea as it professes to answer, and that if bad in part it is bad for the whole ; secondly, that it must be conformable to and not depart from the count ; thirdly, that it must present matter of estoppel, or must traverse or confess and avoid the ijlea ; fourthly, that, like a plea, it should be cer- tain, direct, and positive, and not argumentative, and also that it be triabl e ; and ffthly, that it must be single. 1 Chitty, Plead. 643 ; Martain v. Williams, 13 Johns. Rep. 268. 68. What is a rejoinder ? A rejoinder is the defendant's answer to a replication, and is in general governed by the same rules as those which affect pleas, with this additional quality, that it must support and CHAP. X.J PLEADINGS AND PRACTICE, 245 not depart from the plea. 1 CMtty, Plead. 651 ; Com. Dig. Pleader, H. ; 2 Saund. 189, 190. 69. With what degree of frequency are the 'pleadings sub- sequent to the rejoinder used ? Sur-rejoinders, rebutters, and sur-rebutters seldom occur in pleading, and are governed by the same rules as those to which the previous pleading of the party adopting them is subject. 1 Chitty, Plead. 652. 70. What is an issue ? An issue is a single, certain, and material point, created by the allegations contained in the pleadings of the parties, which is affirmed on the one side and denied on the other. 1 Chitty, Plead. 653 ; 1 Bouvier's Law Diet. 749. 71. What are the different Mnds of issues ? An issue is either in law upon a demurrer or in fact, when the matter is triable by the court upon nul tiel record, or by a jury upon pleadings concluding to the country. 1 Chitty, Plead. 653. 72. What is a demurrer? A demurrer is the pleading which while it admits the al- legations contained in the adverse party's pleading denies their legal sufficiency. When the declaration, plea, or replication, etc., appears on the /'ace of it, and without reference to ex- trinsic matter, to be defective, either in substance or form, the opposite party may in general demur. 1 Chitty, Plead. 661 ; 11 East, 65. 73. What are the pleadings in equity ? The pleadings in equity are : 1. The bill of information. 2. The answer, plea, demurrer, or disclaimer. 3. Eeplication. Story, Eq. Plead., §546. 246 PLEADING AND PRACTICE, [CHAP. XI. 74. WTiat are the pleadings in a criminal action ? The pleadings in a criminal action are as follows : 1. The indictment or information. 2. The plea or demurrer. 3. The similiter or joinder. Chase's Blackstone, 1004-2] . CHAPTER XL PLEADING AND PEACTICE UNDER CODES OF CIVIL PROCEDURE. Note. — The Code adopted as an authority in answering the questions con- tained in this chapter is the one now in force [1887] in New York State. SEC. 1. COURTS AND OFFICERS THEREOF. SECS. 1-99. 1. Mention the courts of record in New York and the courts not of record, and, in general, state what constitutes a court of record Each of the following courts of the State is a court of record : 1. The court for the trial of impeachments. 2. The Court of Appeals. 3. The Supreme Court. 4. A circuit court in each county. 5. A court of oyer and terminer in each county. 6. The Court of Common Pleas for the City and County of New York. 7. The Superior Court of the City of New York. 8. The Court of General Sessions of the Peace in and for the City and County of New York. 9. The Superior Court of Buffalo. 10. The City Court of Brooklyn. 11. The City Court of Long Island City. 12. The City Court of Yonkers. 13. A county court in each county except New York. 14. The City Court of the City of New York. CHAP. XI.] PLEADING AND PRACTICE. 247 15. A court of sessions in each county except New York. 16. The Mayor's Court of the City of Hudson. 17. The Recorder's Court of the City of Utica. 18. The Recorder's Court of the City of Oswego. 19. The Justice's Court of the City of Albany. 30. A surrogate's court in each county. Each of the following courts of the State is a court not of record : 1. Courts of justices of the peace in each town, and in cer- tain cities and villages. 2. Courts of special sessions of the peace in each town and in certain cities and villages. 3. The district courts in the City of New York. 4. The police courts in certain cities and villages. 5. The Justice's Court of the City of Troy. 6. The Municipal Court of the City of Rochester. A court of record has power : To issue a subpoena. To administer an oath to a witness. To devise and make new process and forms of proceedings necessary to carry into effect the powers and jurisdiction pos- sessed by it. Code of Civ. Pro., §§ 2, 3, 7. 2. Give the rule of court governing the suhstitution of an attorney in an action. An attorney may be changed by consent or upon appli- cation of the client, upon cause shown and upon such terms as shall be just, by order of the court or a judge thereof, and not otherwise. Rule 10 of N. Y. Gen. Rules of Pr. 3, What are the provisions of the Code of Oivil Procedure as to an attorney or counsel buying or becoming interested in rights of action, with the intent and purpose of bringing action thereon ? An attorney or counsellor shall not. directly or indirectly, buy, or be in any manner interested in buying, a bond, prom- issory note, biU of exchange, book, debt, or other thing in action, with intent and for the purpose of bringing an action thereon. 248 PLEADING AND PEACTICE. [CHAP. XL. An attorney or counsellor shall jiot, by himself, or by or in the name of another person, either before or after action brought, promise or give, or procure to be promised or given, a valuable consideration to another person, as an inducement to placing, or in consideration of having placed, in his hands, or in the hands of another person, a demand of any kind for the purpose of bringing an action thereon. But this section does not apply to an agreement between attorneys and coun- sellors, or either to divide between themselves the compensa- tion to be received. An attorney or counsellor who violates the foregoing Is deemed guilty of a misdemeanor, and upon conviction must be disbarred. Code of Civ. Pro., §§ 73, 74, 75. SEC. 2. -TUEISDICTION AND ORGANIZATION. SECS. 190-361. 4. Whai is the highest court of original civil jurisdiction in New York, and what jurisdiction has it ? The Supreme Court. The general Jurisdiction in law and eqiiity which the Supreme Court of the State possesses, under the provisions of the constitution, includes all the jurisdiction which was pos- sessed and exercised by the Supreme Court of the Colony of New York at any time, and by the Court of Chancery in England on the fourth day of July, 1776, with the exceptions, additions, and limitations created and imposed by the con- stitution and laws of the State. Subject to those exceptions and limitations, the Supreme Court of the State has all the powers and authority of each of those courts, and exercises the same in like manner. Code of Civ. Pro., § 217. 5. Wherein does the jurisdiction of the Supieme Court differ from that of the Superior City Courts ? The geographical limits of the Superior City Courts are comparatively restricted, while those of the Supren*e Court are coextensive with the boundaries of the State, but in other respects the jurisdiction of both is essentially the same Code of Civ. Pro., §§ 217-313. CHAP. XI. j PLEADING AND PEACTICE. 249 SEC. 3. LIMITATION OF ACTIONS. SECS. 362-415. 6. What are statutes of limitation ? Statutes of limitation are statutes passed from time to time by the State, providing the periods within which certain claims must be sued upon. 2 Bouv. Law Die. 55. 7. Do statutes of limitation act on tJie right or the rem- edy? Such statutes act upon the remedy by depriving the per- son to whom the obligation is due of the right of suing after a certain time. 2 Bouv. Law Die. 55. 8. Mast this defence he pleaded to he available ? Yes, such a statute must be specially pleaded. Code of Civ. Pro., § 413. 9. Give the time limited for bringing different actions in New York State. I. ACTIONS EOR THE RECOVERY OF REAL PROPERTY. A. By the people. Wiihva. forty years after the cause of action accrued, except in the case of an action to recover real property after the judicial annulment of letters patent, the period is then twenty years. B. By individuals. Within twenty years after the cause of action accrued. II. ACTIONS OTHER THAN FOE THE RECOVERY OF REAL PROPERTY. A. Judgments of a court of record must be proceeded upon within twenty years, and such a judgment may be made a lien upon land of the judgment debtor for ten years if it is docTceted in the county where the land is situated. 32 250 PLEADING AND PEACTICE. [CHAP. XI. B. An action to redeem from a mortgage may be main- tained by the mortgageor any time within twenty years after the breach of a condition or non-fulfilment of a covenant con- tained in the mortgage. C. An action upon a sealed instrument mnst be brought within twenty years. D. Actions which must be brought within six years. 1. An action upon a contract, obligation, or other liabil- ity,, except a judgraent or sealed instrument. 2. A.n action to recover upon a liability created by statute, . except a penalty or forfeiture. 3. An action to recover damages for an injury to property or a personal injury, except in a case where a different period is provided by the Code. 4. An action to recover a chattel. 5. An action to procure a judgment other than for a sum ofnnoney, on the ground of fraud, in a case where the Court of Chancery formerly had jurisdiction. The cause of action in such a case is not deemed to have accrued until the discov- ery by the plaintiff or the person under wh.om he claims of the facts constituting the fraud. 6. An action to establish a will. Where the will has been lost, concealed, or destroyed, the cause of action is not deemed to have accrued until the discovery by the plaintiff or the person under whom he claims of the facts upon which its validity depends. 7. An action upon a judgment or decree rendered in a court not of record, except a decree rendered in a surrogate's court before it was declared to be a court of record. The cause of action is deemed to have accrued when final judgment was rendered. E. Actions which must be brought within three years. 1. An action against a sheriff, coroner, constable, or other officer for non-payment of money collected upon exe- cation. 2. An action against a constable, upon any other liability incurred by hini, by doing an act in his official capacity or by the omission of an official duty (except an escape). 3. An action upon a statute for a penalty or forfeiture, CHAP. XI. J PLEADING AND PRACTICE. 251 where the action is given to the person aggrieved or to that person and the people of the State, except where the statute imposing it provides a different limitation. 4. An action against an executor, administrator, or re- ceiver, or against the trustee of an insolvent debtor, appointed as prescribed by law in a special proceeding instituted in a court or before a judge, brought to recover a chattel or damages for taking, detaining, or injuring personal property by the defendant or the person whom he represents. 5. An action to recover damages for a personal injnry re- sulting from negligence. F. Actions to be commenced within two years. 1. An action to recover damages for libel, slander, assault, battery, or false imprisonment. 2. An action upon a statute for a forfeiture or penalty to the State. G. Actions to he commenced within one year. 1. An action against a sheriff or coroner upon a liability incarred by him by doing an act in his official capacity or by the omission of an official duty, {except) the non-payment of money collected upon an execution. 2. An action against any other officer for the escape of a prisoner, arrested or imprisoned by virtue of a civil mandate. A cause of action is deemed to have accrued on a current account from the time of the last item, proved in the account on either side. An action for the recovery of a penalty or forfeiture where the State gis^es the amount to any person who will sue upon the same, must be prosecuted within one year after the com- mission of the offence ; but if the action is not commenced within the year by a private person, the attorney-general or the district attorney of the county where the offence was com- mitted may prosecute the claim any time within " two years''' thereafter in the name of the people. Such an action as the foregoing is called a qui tam action. All actions not other- wise provided for must be commenced within ten years after the cause of action accrues. Code of Civ. Pro., §§ 362-415. 252 PLEADING AND PKACTICE. [OHAP. XI. SEC. 4. PARTIES AND PLEADINGS. SECS. 416-546. SUMMONS. 10. How is. a civil action in a court of record commenced? A civil action is commenced by service of a summons. But from the time of the granting of a provisional remedy the court acquires Jurisdiction and has control of all the subse- quent proceedings. This latter mode of acquiring jurisdic- tion is, however, conditional and liable to be divested in a case where the jurisdiction is made dependent upon some act to be done after the granting of the provisional remedy. The sum- mons is deemed the mandate of the court. Code of Civ. Pro. , §416. 11. What are the requisites of a summons in a civil action ? The summons must contain the title of the action, specify- ing the court in which the action is brought, the names of the parties to the action, and if it is brought in the Supreme Court, the name of the county in which the plaintiff desires trial, and it must be subscribed by the plaintiff's attorney, who must add to his signature his office address, specifying a place within the State where there is a post-ofBce. If in a city, he must add the street and street number or other suitable designation of the particular locality. Form of Summons. Court of Common Pleas for the Citv and County of I^ew York. John Stiles, Plaintiff, against Richard Niles, Defendant. To the above-named defendant : You are hereby sum- moned to answer the complaint in this action and to serve a CHAP. XI. J PLEADING AND PRACTICE. 253 copy of your answer on the plaintiff's attorney witMn twenty days after the service of this summons, exclusive of the day of service ; and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated the day of 18 . John Doe, Plaintiff's Attorney, Office Address, 111 Broadway, New York City. Code of Civ. Pro., §§ 417, 418. 12. By whom may a summons be served ? In most cases the summons may be served by any person other than a party to the action. The plaintiff' s attorney may by an indorsement on the summons fix a time within which the service must be made ; in that case service cannot be made afterward. Where the summons is delivered for service to the sheriff of the county wherein the defendant is found, the sheriff must serve it and return it with proof of service to the plaintiff's attorney with reasonable diligence. Code of Civ. Pro., § 425. 13. How must personal service of a summons upon a de- fendant being a domestic corporation be served ? By delivering a copy to one of the following persons : 1. If the action is against the mayor, alderman, and commonalty of the city of ISew York, to the mayor, comp- troller, or counsel to the corporation. If the action is against any other city, to the mayor, treasurer, counsel, attorney, or cleric; or if the city lacks either of those officers, to the officer performing correspond- ing functions. In any other case to the president or head of the corpora- tion, secretary or clerk, cashier, treasurer or a director or managing agent. Code of Civ. Pro. , § 426. 14. What must the affidavit of service of summons in an action for divorce .state ? The affiant must state, in addition to the facts contained 254 PLEADING AND PRACTICE. [CHAP. XI. in the ordinary affidavit of personal service of tlie summons (to the effect that the person making the service is more than eighteen years of age or over twenty-one years ; that he served the party at a certain time and place and in a certain manner, and that he knew the person served to be the i)erson men- tioned and described in the summons as defendant therein; and also that he left with the defendant a copy of the sum- mons, as well as delivered it to him), what knowledge he had of the person served being the defendant and proper person to be served, and how he acquired such knowledge. The court may require the affiant to appear in court or before a referee and be examined in respect thereto, and when such service has been made by the sheriff may require the officer who made the same to be summoned and examined in like manner. Kule 18, IST. Y. Gen. Rules of Pr. 15. Within what time after service of summons and lioic Tnay a defendant appear in a civil action ? Within twenty days, exclusive of the day of service, and in three ways — viz. : (1) by answer, (2) by demurrer, (3) by notice of appearance. Code of Civ. Pro., § 421. COMPLAIJSTT. 16. What is the first pleading on the part of the plaintiff ? It must contain : 1. The title of the action, specifying the name of the court in which it is brought ; if it is brought in the Supreme Court, the name of the county which the plaintiff designates as the place of trial, and the names of all the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts constituting each cause of action, without unnecessary repetition. 3. A demand of the judgment to which the plaintiff sup- poses himself entitled. Code of Civ. Pro., §§ 478, 481. 17. What causes of action may he joined in the same com- plaint ? The plaintiff may unite two or more of the following CHAP. XI.] PLEADINa AND PRACTICE. 255 causes of action in the same complaint (whetiier they are legal or equitable) where they are brought : 1. Upon contract, express or implied. . 2. Upon personal injuries, except libel, slander, criminal conversation, or seduction. 3. For libel or slander. 4. For injuries to real property. 5. Real property in ejectment with or without damages for the withholding thereof. 6. For injuries to personal property. 7. Chattels with or without damages for the taking or detention thereof. 8. Upon cla'ims against a trustee, by virtue of a contract or by operation of law. 9. Upon claims arising out of the same transaction or transactions connected with the same subject of action, and not included in the above subdivision. But it must appear on the face of the complaint (1) that all the causes of action so united belong to one of the fore- going subdivisions ; (2) that they are consistent with each other ; (3) that they do not require different places of trial ; (4) and that, except as otherwise prescribed by law, they afifect all the parties to the action. Code of Civ. Pro. , § 484. 18. Is it necessary for a com/plaint to ie verified ? It is not necessary, but should be done if possible, for it necessitates the verification of all subsequent pleadings, and moreover allows the plaintiff, in certain cases, if the defendant has not appeared, to take judgment by default without appli- cation to the court. But the verification may be omitted in a case where it is not otherwise specially prescribed by law, where the party pleading would be specially privileged from testifying as a witness concerning an allegation or denial contained in the pleading. A pleading cannot be used in a criminal prosecu- tion against the party as proof of a fact admitted or alleged therein. " A demurrer, or the general answer of an infant hy 256 PLEADING AND PKACTICE. [CHAP. XI. Ms guardian ad litem, need not ie verified.'' '' Code of Civ. Pro., §§ 523, 52.4. 19. State the necessary allegations in a com/plaint upon a promissory note between the holder and maker and indorser. The complaint should state : 1. That on a certain date A. B. made a certain promissory- note, in which he promised to pay to C. D. on a certain day, absolutely and at all events, a sum of money. 2. That CD., for value received, indorsed the said note, and that the same was transferred to the plaintiff for value. 3. That payment of the said note was duly demanded at maturity, and refused. 4. That it was duly protested for non-payment, and notice of demand and refusal was duly given to said indorser. 5. That the note has not been paid. 6. Demand for judgment with costs. 5 How. Pr. 5 ; 17 Abb. 110; 6 Due'r, 644; 24 IST. Y. 547; 21 K Y. 531 ; 1 Abb. Ct. App. Dec. 423. 20. What allegations should a complaint contain in an action to foreclose a mortgage ? The complaint should state : 1. That a bond and mortgage were given by A. B. to C. D. upon a certain day, which were conditioned to be void upon the payment of a certain sum of money. (Here the mortgaged property should be described.) 2. That the said mortgage was duly recorded in the county clerk's office. 3. That no action has been brought to recover upon the mortgage debt ; or if ^ch an action has been brought, state the proceedings thereih. 4. That the conditions contained in the bond and mortgage have been broken, and that the mortgage debt is now due. 5. That the plaintiff believes that certain other persons named as defendants have an interest in or lien upon the mortgaged property, acquired subsequent to his own mortgage, and the plaintiff therefore demands that such liens or interests be barred of any right of redemption in the mortgaged property. CHAP. XI.] PLEADING AND PEACTICE. 257 6. A demand for judgment that the property be sold and the debt satisfied out of the proceeds. If the proceeds be not sufiicient, that the plaintiff have judgment for the deficiency. A prayer for general relief usually follows. Code of Civ. Pro., § 1629 ; 1 Crary*s Pr. 288, 289. 21. State tJie essential allegations in a complaint in an action to recover damages for a false representation iy flie defendant to the plaintiff concerning the solvency of third parties. The complaint should state that upon a certain date A. B. came to the plaintiff and requested goods, credit, or the like, and that the plaintiff not knowing A. B., requested him to furnish the name of some person who could inform plaintiff of the financial statas of said A. B. That thereupon A. B. referred the plaintiflE to C. D. , who told the plaintiff that A. B. was solvent, that his credit was good, etc. ; that in point of fact A. B. was insolvent at the time, and this fact was well known to C. D., who made the statement in regard to A.B.'s solvency fraudulently and maliciously. That the plaintiff, acting in good faith and relying upon the fraudulent representation of C. D., did sell goods, etc., to the said A. B.; that A. B. has never paid for the said goods, and is unable to do so, by reason of his insolvency ; that the plaintiff has suffered damage to the extent of the value of the goods in question. A demand for judgment against C. D. for the value of the property sold to A. B. on the faith of C. D.'s representations. Wells v. Jewett, 11 How. 242 ; Thurman v. Mosher, 1 Hun, 344 ; 66 JST. Y. 558, 564 ; 53 Barb. 425. 22. State the essential allegations of a complaint in an action upon a foreign judgment. The complaint should allege either the fact" of the exist- ence of a general jurisdiction in the court where the judgment was rendered, or of a limited jurisdiction which extended to the cause of action for which the judgment was recovered, and also that the court had or obtained jurisdiction of the person of the defendiant. It must also demand that judgment be rendered in accordance with the foreign judgment, and such 33 258 PLEADING AND PRACTICE. [CHAP. XI. judgment or the gist thereof should be set forth. Boone on Code Pleading, 30. DEMURRER. 23. Upon what grounds and when may a defendant demur . to a complaint ? The defendant may demur to the complaint Avhere one or more of the following objections thereto appears upon the face thereof : 1. That the court has not jurisdiction of the person of the defendant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending between the same parties for the same cause. 5. That there is a misjoinder of parties plaintiff. 6. That there is a defect of parties plaintiff or defendant. 7. That the causes of action have been improperly united. 8. That the complaint does not state facts sufficient to constitute a cause of action. Code of Civ. Pro., § 488. 24, Upon what grounds may the plaintiff demur to a counter-claim, upon which the defendant demands an affir- mative judgment ? Upon the following gi'ounds : 1. That the court has not jurisdiction of the subject thereof. 2. That the defendant has not legal capacity to recover on the same. 3. That there is another action pending between the same parties for the same cause. 4. That the counter-claim is not of the character specified in § 501, Code of Civil Procedure. 5. That the counter-claim does not state facts sufficient to constitute a cause of action. Code of Civ. Pro., § 495. CHAP. XI. j PLEADING AND PRACTICE. 259 ANSWER. 25. What must an answer contain ? 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defence or counter-claim, in ordinary and concise language, without repetition. Code of Civ. Pro., § 500. 26. Define a counter-claim, and state when it may ie set up. ' A counter-claim must tend in some way to diminish or de- feat the plaintiff' s recovery, and it must be one of the follow- ing causes of action against the plaintiff, or in a proper cause against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff" a separate judgment may be had in the same action. 1. A cause of action arising out of the contract or transac- tion set forth in the complaint, as the foundation of the plain- tiff's claim or connected with the subject of the action : This brancn of counter-claim is called recoupment. 2. In an action upon contract any other cause of action on contract existing at the commencement of the action. This is known as set-off. Such counter-claims, however, are subject to the following rules : 1. If the action is founded upon a contract which has been assigned by the party thereto, other than a negotiable promis- sory note or bill of exchange, a demand existing against the party thereto or an assignee of the contract at the time of the assignment thereof, and belonging to the defendant in good faith before notice of the assignment, must be allowed as a counter-claim to the amount of the plaintiff's demand, if it might have been so allowed against the party or the assignee while the contract belonged to him. 2. If the action is upon a negotiable promissory note or bin of exchange which has been assigned to the plaintiff after 260 PLEADING ANB PRACTICE. [CHAP. XI. it became due, a demand existing against a person who as- signed or transferred it after it became due must be allowed as a counter-claim to the amount of the plaintiff's demand, if it might have been so allowed against the assignor while the note or bill belonged to him. 3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counter-claim ; but so much of a demand existing against the person whom he represents, or for whose benefit the action is brought, as will satisfy the plaintiff's demand must be allowed as a counter-claim, if it might have been so allowed in an action brought by the per- son beneficially interested. Code of Civ. Pro., §§ 501, 502. REPLY. 27. When is a reply necessary ? When the answer contains a counter-claim the plaintiff, if he does not demur, may reply to the counter-claim. The reply must contain a general or specific denial of each material al- legation of the counter-claim controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief, and it may set forth in ordinary and concise language, without repetition, new matter, not inconsistent with the com- plaint, constituting a defence to the counter-claim. Code of Civ. Pro., §514. 28. In what cases and on whose application may the court require a reply to he made ? Where an answer contains new matter, constituting a de- fence by way of avoidance, the court may in its discretion on the defendant's application direct the plaintiff to reply to the new matter. In that case the reply and the proceedings, upon failure to reply, are subject to the same rules as in the case of a counter-claim. Code of Civ. Pro., §-516. CHAP. XI. J PLEADING AND PRACTICl!. 261 29. Oive the form of verification to a pleading. City and County of New York, ss. : A. B. being duly sworn, deposes and says that lie has read the foregoing complaint, and that the same is true of his knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true. A. B. Sworn to before me, this day of 18 . C. D., Notary Public, N. Y. Co. Code of Civ. Pro., § 526. 30. What kind of matter may he stricken out of a plead- ing, and upon whose motion ? Irrelevant, redundant, or scandalous matter contained in a pleading may be stricken out upon the motion of a person aggrieved thereby. Where scandalous matter is thus stricken out, the attorney whose name is subscribed to the pleading may be directed to pay costs of the motion, and his failure to pay them may be punished as a contempt of court. Code of Civ. Pro., § 545. 31. What is a traverse ? A traverse to a return or a pleading is a denial of some matter of fact alleged in the return or pleading. In criminal practice it is to put off or delay the trial of an indictment till a succeeding term ; more properly, to deny or take issue upon an indictment. 2 Bouv. Law Die. 606. 32. Why are the pleadings so called ? Because they are the formal modes of alleging that on the records which constitutes the support or the defence of the party to the action. 3 Shars. Blackst. Comm. 293 ; 2 Bouv. Law Die. 339 ; Boone on Code Pleading, 2. 33. Define a sham defence, also a frivolous demurrer, and state how each may be disposed of. A sham answer or defence is one which is fdlse in fact ; it may be stricken out by the court upon motion and upon such terms as the court deems just. 262 PLEADING AND PRACTICE. [CHAP. XI. A frivolous demurrer is one which is palpably insuffi- cient in law upon its face. The party prejudiced thereby may, upon giving five days' notice to the opposite party, apply to the court or to a judge thereof for judgment thereon. 6 How. 355 ; 1 Abb. 41. 34. How should a pleading he headed ? A pleading should be headed as follows : Court, County of John Doe, Plaintiff, against RicHAED Roe, Defendant. (N. B. — If the pleading is the complaint, it is customary to add, if the action is brought in the Supreme Court :) Plaintiff designates the County of as the place of trial. Code of Civ. Pro., § 481.' 35. Define '■'■ cause of actiooi.^'' A cause of action is that right to a remedy which the law gives to a party injured by the wrongful act of another. Boone on Code Pleading, § 36 ; 30 Barb. 159. 36. What papers must he presented to the court upon an application made for an order granting to a defendant ex- tension of time to demur ? 1. An affidavit, which must state that an affidavit of merits has been filed, or if such an affidavit has not been filed, that the attorney, from the statement of the case in the action, made to him by the defendant, verily believes that the defend- ant has a good and substantial defence upon the merits to the cause of action set forth in the complaint, or to some part thereof. And the affidavit shall state whether any and what extensions of time to answer or demur have been granted by CHAP. XI. J PLEADING AND PEACTICE. 263 stipulation or order. And where any extension has been had, the date of issue shall be twenty days after the service of the complaint. 2. 4n order extending the time— see Rule 24, N. Y. Gen. Rules of Pr. 37. Write the form of an affidavit of merits hy the defend- ant in an action. Title of cause. County, ss. : A. B., the defendant (or the attorney for the defendant) in the above entitled action, being duly sworn, says that he has fully and fairly stated the case to C. J). , his counsel in this action, who resides at , in the County of ; and that he has a good and substantial defence on the merits m said action, as he is advised by said counsel (after said state- ment), and verily believes (or that from the statement of the case in the action made to him by the defendant, he verily be- lieves that the defendant has a good and substantial defence upon the merits to the cause of action set forth in the com- plaint or some part thereof). (That the reason why this affi- davit is not made by the defendant is that [state reason].) [Jurat.] A. B. Code of Civ. Pro., §980. 38, May a verified answer containing a general denial he stricTcen out as sham ? Oive reason for answer. ' ' No, it may not. " Reason : Because at common law what is now known as a general denial was termed pleading the general issue, and such a plea, if verified, could not be stricken out as sham. Whenever such a plea was verified and interposed as a defence, it raised an issue and gave the party so defending the right of trial by jury ; and this right is secured to him by § 2, Art. 1 of the Constitution. Such a right could not be taken from him by merely changing the name of the plea, and as this was all the adoption of the Code effected, the common law rule stUl prevails. 45 N. Y. 381 ; 18 Wend. 566. 264 PLEADING AND PEACTICE. [CHAP. XI. 39. What is necessary to he alleged upon an account stated ? 1. Tlie complaint should state that upon a certain date the plaintiff and defendant came to an accounting together, or that an account was stated between them. 2. That upon such an accounting defendant was found to be indebted to the plaintiff in the sum of so many dollars, which sum defendant agreed to pay. 3. That the defendant has not paid the amount or any part thereof. 4. Demand for judgment that the plaintiff be paid such sum, with costs. Fuller v. Surdam, 31 Hun, 500 ; 63 N. Y. 370 ; re^'g. in part is 5 Daly, 327 ; Code of Civ. Pro., § 531. SEC. 5. PROVISIONAL REMEDIES. SECS. 548-720. 40. Name the general provisional remedies in an action, with a brief statement of the nature of each. The Code declares the general provisional remedies to be five in number — viz. : Arrest, injunction, attachment, appoint- ment of a receiver, and deposit, delivery or conveyance of property. I. ARREST. There are two great classes in which this order will be granted. 1. Where the right to arrest depends upon the nature of the action. 2. Where it depends partly upon extrinsic facts. Thefrst class embraces the following cases : 1. To recover a fine or penalty. 2. To recover damages for a personal' injury ; an injury to property, including the Avrongful taking, detention, or con- version of personal property ; breach of a promise to marry ; misconduct or neglect in oflice, or in a professional employ- ment ; fraud or deceit ; or to recover a chattel where it is al- leged in ^he complaint that the chattel or a part thereof has CHAP. XI.] PLEADING AND PEACTIOE. 265 been concealed, removed, or disposed of so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintifiE of the benefit thereof ; or to recover for money received or to recover property or damages for the conversion or misapplication of property where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or counsellor, or by an officer or agent of a corporation or bank- ing association in the course of his employment, or by a fac- tor, agent, broker, or other person in a fiduciary capacity. "Where such allegation is made the plaintiff cannot recover unless he proves the same on the trial of the action : and a judgment for the defendant is not a bar to the new action to recover the money or chattel. 3. To recover moneys, funds, or property held or owned by the State, or held or owned oflicially or otherwise for or in behalf of a public or governmental interest by a municipal or other public corporation, board, ofiicer, custodian, agency, or agent of the State or of a city, county, town, village, or other division, subdivision, department or portion of the State which the defendant has without right obtained, received, con- verted, or disposed of, or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same. 4. In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that he has since the making of the contract, or in contemplation of making of the same, removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with like intent ; but where such allegation is made the plaintiff cannot recover unless he jjroves the fraud on the trial of the action ; and a judgment for the defendant is not a bar to a new action to re- cover upon the contract only. The second class includes all actions wherein the judgment demanded requires the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt where the defendant is not a resident of the State, 34 266 PLEADING AND PRACTICE. [CHAP. XI. or being a resident, is about to depart therefrom, by reason of which non-residence or departure there is danger that a judg- ment or an order requiring the performance of the act will be rendered ineffectual. This division is intended as a substitute for the writ of ne exeat, which is abolished by § .'548 of the Code. The object in granting an order of arrest is to prevent the judgment which the plaintiff may subsequently recover from being rejidered ineffectual, by the court not having jurisdiction over the person of the defendant. It may be generally stated that in a case where arrest may be obtained before judgment execution against the person may be obtained after judgment. In most cases the order of arrest must be obtained from a judge of the court in which the action is brought, or from any county judge. The papers necessary to present to obtain an order of arrest are : (1) Summons, (2) Complaint, (3) Order of Arrest, (4) Affidavit, (5) UndertaMng. Where the affidavit is made upon information and belief, the reason must be shown why it was not made on knowl- edge. The affiant should also state the sources of his informa- tion and the grounds of his belief. When the affidavit of a third x^erson is needed to use upon the motion, and he will not give it voluntarily, his deposition may be obtained under § SSii. But when there is not time to wait for this, an affidavit on information and belief may be used. Upon an appeal from an order denying a motion to vacate the order of arrest, a question of law is presented for the Court of Appeals when the evidence presented below did not legitimately tend- to establish the existence of one of the grounds for arrest, and the natural inferences from the facts stated did not lead to such a conclusion. But in other cases the order is discretionary and not appealable to this court. Clarlc v. Lowrie, 82 N. Y. 580; Pierson v. Freeman, 77 N. Y, 589 ; Morris v, Tdlcott, 96 N, Y, 100 ; 27 Hun, 352. CHAP. XL.] PLEADING AND PRACTICE. 267 II. INJUNCTION. Here, as in the case of arrest, there are two great divisions under which all injunctions may be classed. 1. Where the right depends upon the nature of the action. 2. Where it depends upon extrinsic facts. Under the first dimsion are grouped all cases " loJiere it appears from the complaint that the plaintiff demands and is entitled to a judgment against the defendant, restrain- ing the commission or continuance of an act, the commission or continuance of which during the pendency of the action would produce injury to the plaintiff." Under the second class there are two great subdivisions : 1. Where it appears hy affidavit that the defendant will do or permit to be done an act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render judgment ineffectual. 2. Where it appears by affidavit that the defendant may during the pendency of the action remove or dispose of his property with intent to defraud the plaintiff. The order may generally be granted by the court, by a judge of the court, or by any county judge before whom the action is triable. The papers necessary to obtain such an order are the (1) Summons, (2) Complaint, (3) Affidavit, (4) Order, {^) Un- dertaking. The object of granting such an order is sufficiently set forth in the above outline. The party asking for the order is liable for all damage sustained by its being granted ; hence the reason for an under- taking. The writ of injunction has been abolished, and the present remedy is obtained by an order. Such writ originally issued from the court of equit3^ If the person against whom the order is issued fails to obey its mandate, he is guilty of con- tempt. The temporary injunction is unauthorized when it does not appear from the complaint that the plaintiff is entitled 368 PLEADING AND PEACTICE. [CHAP. XI. to final relief for which the action is brought— that is, to the final injunction which the complaint demands. Granting the injunction in such a case is an error of law, reviewable in the Court of Appeals. But the rule of this case does not apply where a doubtful question of law arises on the complaint. The case must be very clear to justify the Court of Appeals in deciding the merits of the controversy on a mere motion. It would let doubtful cases be tried on the merits, and hear review upon final judgment. It should be remembered that the injunction here spoken of is temporary, not final. McHenry v. Jewett, 90 N". Y. 58 ; 93 N. Y. 59. III. ATTACHMENT. A warrant of attachment may be granted against the property of the defendant in an action " to recover a sum of money anly" for one of the following causes : 1. Breach of contract, express or implied, other than a promise to maixy. 2. Wrongful conversion of personal property. 3. Any other injury to personal property in consequence of negligence, fraud, or other wrongful act. 4. Where a public ofiicer is prosecuted for peculation. To entitle the plaintiff to such a warrant the affidavit of the plaintiff must show to the satisfaction of the judge grant- ing the warrant : 1. That one of the causes of action specified above exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein " over and above all counter-claims known to Mmy * 2. That the defendant is either a foreign corporation or not a resident of the State ; or if he is a natural person and a resident of the State, that he has departed therefrom, with in- tent to defraTid his creditors, or to avoid the service of a sum- mons, or keep himself concealed therein with a like intent ; or if the defendant is a natural person, or a domestic corpora- » 87 N. Y. 141 ; 30 Hun, 37. CHAl'. XI. J PLEADING AND PRACTICE. 269 tion, that he or it has removed property from the State, with intent to defraud his or its creditors, or has assigned, dis- posed, or secreted property, or is about to do so with a like intent. A person other than the defendant who has acquired a lien upon or interest in the defendant's property after attachment may at any time before the actual application of the attached property, or the proceeds thereof, to the payment of a judg- ment recovered in the action, apply to vacate or modify the warrant, or to increase the security given by the plaintiff, or for one or more of these forms of relief, together or in the alternative. To attach a debt due the defendant by a third party, the sheriff must leave with the person owing such a debt a certi- fied copy of the warrant of attachment and a notice showing the debt attached. The papers necessary to present to the judge to procure a warrant of attachment would be (1) Summons, (2) Complaint, (3) Warrant, (4) Affldamt, (5) UndertaTcing. The warrant may be granted by a judge of the court or by any county judge. ■Notes on Attachment. § 638. Publication of summons made in one paper on the 30th day and in the other on the Blst, after the granting of the warrant, was held not sufficient. The warrant in such a case would be vacated, and Jurisdiction fails. Voluntary appearance within thirty days is equivalent to service of the summons. Where the 30th day is Sunday, service on the next day is sufficient. § 647. This section applies to shares of stock of a domestic corporation. Shares owned by a non resident defendant in the stock of a foreign corporation cannot be attached, although officers of the corporation are in the State, carrying on busi- ness here. In order to make a valid attachment the thing must be within the State, and a corporation has its domi- cile only within the State of its creation. 76 N. Y. ^9d; 84 N. Y. 614 ; 91 N. Y. 668 ; 93 JN". Y. 93 ; 93 N. Y. m2. 270 PLEADING AND PItACTICE. [OHAP. XI. § 649. Attaching the debt owing by a third person to the debtor is called Oarnishment, Trustee Process (as in the JsTew England States), Foreign AttacJivient (grew np in London, but in this country is applied to non-residents of a State). Sometimes the word Factorizing is used where the factor or agent receives the money. Garnishment comes from the French garnir, to warn, and is much the broadest term, and the one used in this State. § 649, f 3. Judgment debts and moneys collected on execution while in the hands of the sheriff are liable to attach- ment in a,n action against the judgment creditor. § 682. Vacating an attachment is setting the warrant al- together aside. A discharge is simply a discharge of the property from the attachment by putting other security in place of it which shall be of equal value or of the value of the judgment sued for. Annulling a warrant of attachment. A warrant of attachment against property is said to be annulled : (1) When the action in which it w^as granted abates or discontinues ; (2) or a final judgment, rendered therein in favor of the plaintiff, is fully paid ; (3) or a final judgment is rendered therein in favor of the defendant. But in case last specified a stay of proceedings suspends the effect of the an- nulment, and the reversal or vacating of the judgment revives the warrant. Wehle v, Conner, 83 N, Y. 231 ; Code of Civ. Pro. 3343, 1 12. IV. REOEIVEES. In addition to the cases where the appointment is specially provided for by law, a receiver of property which is the sub- ject of an action in the Supreme Court, a superior city court, or a county court, may be appointed by the court in either of the following cases : 1. Before final judgment, on the application of a party who establishes an apparent right or interest in property in the possession of the adverse party, and there is danger that it will be removed beyond the jurisdiction of the court or lost, materially injured, or destroyed. CHAP. XI.J PLEADING AND PRACTICE. 271 2. By or after final judgment to carry the judgment into effect, or to dispose of the property according to its directions. 3. After final judgment to preserve the property during pendency of appeal. The word property includes rents, profits, or other income, or increase of property, real or personal. , Notice of an application for appointment of a receiver he- fore judgment must be given to the adverse party, unless he has failed to appear and the time limited for his appearance has expired. But in cases where service of summons by pub- lication is allowed, the court may in its discretion appoint a temporary receiver. The papers necessary to present to the court to procure the appointment of a receiver are (1) Petition, (2) Affidavit, (3) Order. JSfotes on Receivers. % 713. The Court of Chancery had power to appoint a receiver of the rents and profits of mortgaged premises accru- ing during foreclosure. This power still exists under § 4 of the Code. A court having power, and which appoints a receiver of the assets of an insolvent corporation, may, in aid of that appointment, forbid any after interference by way of at- tachment or execution with the property in his possession. 94 N. Y. 342 ; 99 N. Y. 398. V. DEPOSIT, DELIVERY, OB CONVEYANCE OP PROPERTY. Where it is admitted by the pleading or examination of a party that he has in his possession or under his control money or personal property capable of delivery, which, being the subject of the action or special proceeding, is held by him as trustee for another party, or which belongs or is due to an- other party, the court may in its discretion grant an order, upon notice, that it be paid into or deposited in court or delivered to that party, with or without security, subject to the further discretion of the court. If a party refuses to obey such a mandate as is described 372 PLEADING AND PRACTICE. [CHAP. XI. above, or one of the same nature, saving that it relates to real property, he may be punished for contempt ; and the court may direct the sheriff to take the property into his possession and hold the same subject to its future mandate. Code of Civ. Pro., §§717, 718. 41. What are the qualifications ofbailf 1. Each of the bail must be a resident of and a house- holder or freeholder within the State. 2. Each of them must be worth the sum specified in the order of arrest, exclusive of property exempt from execution ; but the Judge on justification may allow more than two bail to justify, severally, in sums less than that specified in the order, if the whole justification is equivalent to that of two sufficient bail. Code of Civ. Pro., § 579. 42. Write an affidavit of justification of a surety in an undertaking. (Title of cause.) On this day of , 18 , before the under- signed, , a justice of this court (or county judge of the county of ), personally appeared C. D. and E. F., the bail of the defendant, Y. G-., in this action, to justify pur- suant to notice ; and the said C. D., being duly sworn, says (here state the testimony of C. D., as to his sufficiency, etc., inserting, if desired, the questions and answers in form). And the said E. F., being duly sworn, says (etc. as above). (Signature of bail.) Taken and sworn to before me the day first above written. (Signature and official title of judge.) Code of Civ. Pro., § 576 ; 1 Wait's Pr. 686, 43. What is the object of filing a notice of pendency of an action ? The object is to give constructive notice to all the world that a suit is pending in a certain court, in which the title to the property described in the lis pendens is involved ; and to warn all persons who purchase the property during the pen- dency of the action that they take title subject to the final CHAP. XI. J PLEADING AND PBACTICE. 273 decree of the court in reference thereto. 1 Johns. Ch. N. Y. 556 ; Code of Civ. Pro., §§ 649, 711. 44. What must such a notice contain ? The names of the parties to the action and the object thereof, together with a description of the property affected thereby. N. Y. Gen. Rules of Pr., Rule 60. 45. In what actions is it admsable to file such a notice ? In an action brought to recover a judgment affecting the title to or the possession, use, or enjoyment of real property, the plaintiff may, when he files his complaint, or at any time before final judgment, file a lis pendens, and in all such cases it is advisable so to do. Code of Civ. Pro., §§ 1670-74. 46. In what actions must such a notice be filed ? In actions for the foreclosure of mortgages. Code of Civ. Pro., § 1631 ; N. Y. Gen. Rules of Pr., Rule 60. SEC. 6. MISCELLANEOUS PROCEEDINGS. SECS. 721-827. 47. If the defendant in an action for the recovery of money desires to make a tender to the plaintiff, what must he do to make tJie tender effectual ? Such an offer may be made at any time before the trial, and consists in tendering to the plaintiff or his attorney such a sum as the defendant conceives to be suflJcient to make amends for the injury or to pay the plaintiff's demand, to- gether with the costs of the action to that time. Such a tender does not avail the defendant, however, unless the money is accepted or is paid into court, and notice thereof in writing is served upon the plaintiff's attorney before the trial and within ten days after the tender. If the plaintiff takes out the amount paid in, he accepts the tender. Code of Civ. Pro., §§ 731, 732. 48. How m,any days' notice of motion must be given ? Eight days is the time generally required. Code of Civ. Pro., § 780. 35 274 PLEADING AND PRACTICE. [CHAP. XI. 49. What must we always state in our affidavit, upon an application to obtain an ex parte order? Under Eule 25 of the N. Y. Gen. Rules of Pr., whenever application is made ex parte, on affidavit to a judge or court for an order, the affidavit shall state whether any previous application has been made for sach order, and if made, to what court or judge, and what order or decision was made therein, and what new facts, if any, are claimed to be shown. And for the omission to comply with this rule, any order made on such application may be revoked or set aside. 50. How is a discovery of books and papers obtained ? By order of the court or judge before whom they are to be offered in evidence. Code of Civ. Pro., § 805. 51. What is necessary to he stated in the application, and what must be specified in the order granting the discovery ? The moving papers upon the application for such discovery or inspection with copy shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit, stating that the books, papers, and documents whereof dis- covery or inspection with copy is sought are not in the pos- session or under the control of the party applying therefor. The party applying shall show to the satisfaction of the court or judge the materiality and necessity of the discovery sought, the particular information which he requires, and that there are entries in the book or paper referred to of the matter he seeks a discovery of, or inspection with copy. The order for granting the application shall specify the mode in which the discovery or inspection is to be made, which may be either by requiring the party to deliver sworn copies of the matters to be discovered, or to allow an inspection with copy, or by requiring him to produce and deposit the same with the clerk, unless otherwise directed in the order. The order shall also specify the tiijie within which the discovery or inspection is to be made ; and when papers are required to be deposited, the order shall specify the time the deposit shall continue. Such an order may direct the party against whom discovery or inspection is sought to allow it, or show cause before the CHAP. XI.] PLEADING AND PRACTICE. 275 court why the prayer of the petition should not be granted. See Code of Civ. Pro., §§ 804, 805, and N. Y. Gen. Eules of Pr., Eule 15 ; K. Y. Gen. Rules of Pr., Rule 16. 52. Should bonds and undertakings required by the Code of Civil Procedure, when executed by two or more persons, be joint, or joint and several ? Joint and several. Code of Civ. Pro., § 81'2. 53. What are the provisions of the Code on the subject of interpleader ? A defendant against whom an action to recover upon a contract, or an action of ejectment, or an action to recover a chattel is pending, may, at any time before ans^ver upon proof, by aflBdavit, that a person not a party to the action makes a demand against him for the same debt or property, without collusion with him, apply to the court, upon notice to that person and the ad^ erse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt or delivering the possession of the property, or its value, to such a person as the court directs. The court may, in its discre- tion, make such an order. Code of Civ. Pro., § 820. 54. How must the time for doing any act in an action or special proceeding brought in a court of record be computed ? Such time must be computed by excluding the first day and including the last day. If the last day is Sunday or a public holiday it must be excluded. Where the act is reqtiired to be done within two days, and an intervening day is Sunday, or a public holiday, it must be excluded. Code of Civ. Pro., § 788. SEC. 7. EVIDENCE. SECS. 828-962. 55. To what extent and with what qualifications are parties and persons interested in the event of an action competent to testify in the courts of this State {JV. T.) f As a general rule, all parties and persons interested may 276 PLEADING AND PBACTICE. [CHAP. 21. testify in their own behalf ; but upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or person interested in the event, or a person from, through, or under whom such a party or interested person derives his in- terest or title, by assignment or otherwise, shall not be exam- ined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the ex- ecutor, administrator, or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic, by as- signment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic, except where the executor, administrator, survivor, committee, or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication. A person shall not be deemed interested by reason of being a stockholder or officer of any banking cor- poration which is a party to the action or proceeding or in- terested in the event thereof. It may also be stated that a husband or a wife is not com- petent to testify against the other upon the trial of an action, or the hearing upon the merits of a special proceeding founded upon an allegation of adultery, except to prove the marriage. Code of Giv. Pro., §§ 828, 829, 831. 56. What is the mode of serving a subpoena issued out of a court ? 1. The original subpoena must be exhibited to the witness. 2. A copy of the subpoena or a ticket containing its sub- stance must be delivered to him. 3. The fees allowed by law for travelling to and returning from the place where he is required to attend and for one day's attendance must be paid or tendered to him. Code of Civ. Pro., §852. 57. Can a subpoena to testify be served by leaving a copy with a person of mature age, at the house of the witness ? No. Code of Civ. Pro., § m2. CHAP. SI. J PLEADING AND PEACTICE. 277 SEC. 8. TRIALS. SECS. 963-1199. 58. What is an issue of fact, and how and upon what notice may such issue he brought to trial ? An issue of fact is a denial by one party to the action of the facts asserted by the other. An issue of fact arises in either of the following cases : 1. Upon a denial contained in the answer of a material allegation of the complaint, or upon an allegation contained in the answer, that the defendant has not sufficient knowledge or information to form a belief with respect to a material al- legation of the complaint. 2. Upon a similar denial or allegation contained in the reply with respect to a material allegation of the answer. 3. Upon a material allegation of new matter contained in the answer, not requiring a reply, unless an issue of law is joined thereupon. 4. Upon a material allegation of new matter contained in the reply, unless an issue of law is joined thereupon. Such an issue may be brought to trial by the service by either party of a notice of trial upon the other party, and such a notice must be served at least fourteen days before the com- mencement of the term at which the case is to be tried. The party serving the notice must file with the clerk a note of issue, stating the title of the action, the names of the attorneys, the time when the last pleading was served, the nature of the issue, and whether it is triable by a jury or by the court without a jury. The note of issue must be filed at least twelve days before the commencement of the term. The clerk must then enter the cause upon the calendar according to the date of the issue. Code of Civ. Pro., §§ 963^ 964, 977. 59. What are the civil actions in which a jury trial is a matter of right? In each of the following actions an issue of fact must be 278 PLEADING AND PRACTICE. [CHAP. XI. tried by a jury unless a jury trial is waived or a reference is directed : 1. An action in which the complaint demands Judgment for a sum of money only. 2. An action of ejectment ; for dower ; for waste ; nui- sance ; or to recover a chattel. Code of Civ. Pro., § 968. 60. Are petition suits triable hy the court only or by the court and a jury ? By the court ; but in such a proceeding a jury trial of issues of fact presented by the pleadings was held under Code of Civil Procedure to be a matter of right. Code of Civ. Pro., §§ 968, 970 ; Hewlett v. Wood, 62 IST. Y. 75. 61, State the general rules governing the granting of new trials in civil actions, and the manner of inaJcing applica- tion for a new trial. The rules governing courts in granting new trials are nearly as follows : That they will be granted, first, if evidence not material to the verdict, daring the progress of the trial, be improperly received or material evidence rejected ; second, if a referee has misapplied the law ; third, if a referee is pecuniarily or otherwise interested in the litigation ; fourth, if the successful party has been guilty of gross misconduct or a mistake has been made in entering judgment ; fifth, if the damages awarded be glaringly excessive or palpably insufficient. Also if it appears that the verdict or report was obtained by sur- prise or that the report was manifestly against the weight of evidence and was perverse. Code of Civ. Pro., §§992-1007; Wehrum v. Kuhn, 34 N. Y. Sup. Ct. 336, and notes to Bliss' Code. 62, In what cases may there be a compulsory reference f Where the trial will require the examination of a long ac- count on either side, and will not require the decision of diffi- CHAP. XI.]' PLEABING AND PRACTICE. 279 cult questions of law. Code of Civ. Pro., § 1013 ; Dane V. Ins. Co., 21 Htm, 259. 63. What are the qualifications of a trial juror with re- spect to age and ^property ? In order to be qualified to serve as a trial juror in a court of record a person must be : 1. A male citizen of the United States and a resident of the county. 2. Not less than twenty-one nor more than sixty years of age. 3. Assessed for personal property belonging to him, in his own right, to the amount of $250 ; or the owner of a free- hold estate in real property, situated in the county, belonging to him in his own right, of the value of $150 ; or the husband of a woman who is the owner of a like freehold estate belong- ing to her, in her o^vn right. 4. In the possession of his natural faculties, and not infirm or decrepit. 5. Free from all legal exceptions ; of fair character ; of approved integrity ; of sound judgment, and well informed. But a person who was assessed on the last assessment-roll of the town for land in his possession, held under a contract for the purchase thereof, upon which improvements, owned by him, have been made to the value of $150, is qualified to serve as a trial juror, although he does not possess either of the qualifications specified in subdivision third of the last para- graph, if he is qualified in every other respect. Code of Civ. Pro., §§ 1027, 1028. 64. How many jurors are there in the panel of the grand jury ; how many must he present in order to transact busi- ness., and how many must concur in order to find an indict- ment or to dismiss a complaint f The grand jury must consist of not less than sixteen nor more than twenty-three persons ; the presence of at least six- teen is necessary for the transaction of any business, and twelve must concur in rendering a finding. Code of Crim. Pro., § 224 ; ■People V. ShattucTc, 6 Abb. (N. C), 33. 380 PLEADING AND PEACTICE. [CHAP. XI. 65. How many different kinds of challenges to jurors are here ? Challenges may be classified as follows : 1. Challenges to the array. 2. Challenges to the polls. {a) Challenge for disqualification. (5) Challenge to the favor. (c) Challenge for crime. A challenge to the array is an objection to all the jurors collectiA^ely, as where the officer who summoned them per- formed his duty in an irregular manner. A challenge to I3ie polls is an objection to one or more of the jurors individually, as where a juror is known to be prej- udiced against one party to the action to such an extent as to make it improbable that he will render an impartial verdict. People V. Bodine, 1 Denio, 281 ; 3 Wait's Pr. 103 ; Oardiner V. Turner, 9 Johns. 260. 66. Who may challenge a grand juror ? A person held to answer to any criminal charge may object to the competency of any one summoned to serve as a grand juror before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such per- son, or that he is a witness on the part of the prosecution, and has been subpoenaed or bound in a recognizance as such ; and if such objection be established, the person so summoned shall be set aside. 2 N. Y. R. S. 747, §§^27, 28 ; 2fi N. Y. 40^ ; 64 N. Y. 483. 67. State the difference between a grand and a petit jury. A grand jury is a body of men returned at stated periods from the citizens of the county before a court of competent jurisdiction, and chosen by lot, and sworn to inquire of crimes committed or triable in the county. A petit jury is a jury who try the question in issue and pass finally upon the truth of the facts in dispute. 1 Bouv. Law Die. 640 ; Code of Crim. Pro., § 223 ; Code of Civ. Pro., §§ 1163-80. CHAP. XI. J PLEADING AND PRACTICE. 281 SEC. 9. APPEALS. SECS. 1293-1361. 68. state the proceedings step by step in the argument of an appeal. Before argument of an appeal to the General Term of the Supreme Court, the first step is to notice the appeal for argu- ment ; then file a note of issue, and when the case is called give three copies of points to your opponent and to the clerk of the court the number of copies of the case and points re- quired by the court rules of the department where the appeal is argued. The appellant has the privilege of both opening and clos- ing the argument. Gen. Kules of Pr., Rules 66-68 ; also §§ 1293-1361. 69. Within what time must an appeal he taken from a judgment to the Court of Appeals ? An appeal to the Court of Appeals from a final judgment must be taken within one year after final judgment is entered, upon the determination of the General Term of the court below, and the judgment-roll filed. Code of Civ. Pro., § 1325. 70. What is necessary to he done to perfect an appeal to the Court of Appeals from a judgment of the Superior Court? To render a notice of appeal to the Court of Appeals effectual for any purpose, except in a case where it is espe- cially prescribed by law, that security is not necessary to per- fect the appeal, the appellant must give a written undertak- ing to the effect that he will pay all costs and damages which maybe awarded against him on the appeal, not exceeding $500. The appeal is perfected when such an undertaking is given and a copy thereof, with notice of the filing thereof, is served. Code of Civ. Pro., § 1326. 71. Within what time must an appeal from an order he taken ? Within sixty days after service upon the attorney for the 36 282 PLEADING AKD PRACTICE. [CHAP. XL appellant of a copy of the order, and a written notice of the entry thereof. Code of Civ. Pro,, § 1343, SEC. 10. REGULATINa CERTAIN ACTIONS. SECS. 1496-1741. 72. Oan a widow bring suit to partition the real estate of her husband, dying intestate, he hazing left children sur- viving him ? No. Coles V. Coles, 15 Johnson, 319 ; Code of Civ. Pro., § 1.^32. 73. Is there any kind of action in tlie Supreme Court in which a party can demand a new trial as a matter of right after a final judgment ; and if so, upon what terms ? Yes, an action of ejectment. The court at any time within three years after such a judgment is rendered and the judg- ment-roll is filed, upon application of the party against whom it was rendered, his heir, devisee, or assignee, and upon pay- ment of all costs and all damages other than for rents and profits, or for use and occupation, awarded thereby to the ad- verse party, must make an order vacating the judgment, and granting a new trial in the action. The court upon a like ap- plication, made within two years after the second final judg- ment is rendered and the judgment-roll is filed, may make an order vacating the second judgment and granting a, new trial upon the like terms, if it is satisfied that justice will be thereby promoted and the rights of the parties more satisfactorily ascertained and established. Not more than two new trials can be granted, however, under our present practice. Code of Civ. Pro., § l.^S.') ; 19 Hun, 618. 74. State the ordinary proceedings in a partition suit, and In answering mention who are the proper parties, etc. Case should be commenced by summons and complaint. All joint owners should be made parties, either as plaintiffs or defendants. If any are minors, guardians ad litem must be appointed by the court, and not by judge at chambers. An infant becomes a ward of the court after the commencement of an action, and a failure to appoint a guardian, although an CHAP. XI. J PLEADING AKD PRACTICE. ' 283 error, will not destroy the court' s jurisdiction. A bond should be filed by guardian. By the terms of the New York Statute title of all persons having contingeht interests, such as con- tingent remaindermen, can be extinguished, and land sold free from their claims. Money produced by sale may be brought into court and invested for their benefit. The object of this is to give a clear title to purchasers. If any interests in lands are owned by persons unknown to plaintiff, he should name them in the proceedings as unknown owners. Summons should then be served personally upon all persons within the State and on all non-residents and others by publication. A notice of lis pendens must also be filed. It is not absolutely necessary to make judgment creditors or other encumbrancers parties ; but if this is not done their interests are not affected. It is evident that there would be two classes of judgments in many instances : one affecting the whole land, and the other attaching to several interests of part owners. If the first class were not made parties, the land would be divided or sold subject to encumbrances. If the second class were omitted, the encumbrance would after par- tition attach to the separate and divided interest of the part owner against whom it existed. When co-tenants are heirs it is well not to ask for parti- tion until three years after ancestor's death, as the surrogate of the county has a right during that time to sell land for the payment of ancestor's debts, and a secure title cannot be given. But if a partition did take place before that time, and the land was sold to an honest purchaser, it would be necessary to satisfy liim beyond all reasonable doubt that the ancestor did not leave any debts. As a general rule, no defence is made to an action for parti- tion, and commonly none can be made. After the time to answer the complaint has expired, and there is no litigation, an application may be made by plaintiff to the court for an order to have commissioners or referee appointed to make partition. Commissioners are three in number, and are to be appointed by the court. They have power to examine wit- ness, and after hearing testimony, they proceed to make actual partition, whenever this can be done, by metes and bounds, 284 PLEADING AND PRACTICE. [CHAP. XI. and may direct one co-tenant to pay to another a sura of money, to make the division equal. This is called " owelty of partition. ' ' If wives or husbands of any co-tenants are entitled to dower or courtesy, this is set off in like manner. Sometimes the commissioners divide one portion and sell the residue. When the commissioners have completed their duties they re- port to the court. If no motion is made within a certain time to set aside, partition is said to be confirmed, and judgment is entered accordingly. No deed is necessary in New York practice ; judgment of the court is sufficient evidence of title. If commissioners report to the court that actual partition can- not be made vdthout great prejudice to owner, it may, on con- firmation of this report, order land to be sold. Here, all hav- ing liens on the land should be made parties, that they may make application for their share of the purchase-money. After the sale is confirmed by the court, commissioners exe- cute conveyances to .purchasers, vrho have opportunity to ex- amine the regularity of the proceedings before taking a con- veyance. There is no material difference in case of a referee than indicated in the case of commissioners. Code of Civ. Pro., §§ 1532-95 ; 5 Wait's Pr., 24-146. 75. State the ordinary proceedings in a foreclosure suit, and in answering mention wlio are the proper parties, etc. In a foreclosure by action the proceediiig is commenced by the service of summons and complaint. All persons should be made parties vs^ho have the right to redeem, including those having equitable interests. When the mortgageor is dead, his executors and heirs may both be made parties de- fendant — executors in case the land does not sell for enough to pay the debt, to make up the deficiency from the personal estate of the deceased. Failure to make a person a party who has the right to redeem causes foreclosure to be a nullity as to him, and only gives purchaser the rights of a mortgagee in possession. It is only necessary to ser^e complaint on those persons on whom a personal claim is made. In regard to all others, there should be notice given of the object of the action. Notice of lis pendens must also be filed in the county clerk's office, to give notice of action to subsequent purchasers and CHAP. XI.] PLEADING AND PRACTICE. 285 encumbrancers. If there is any defence to the action, it is tri4d in the usual manner. If no defence is made, the case is submitted to a referee, who takes testimony on the amount of the claim, and reports to the court accordingly. If no objection is made to the report, an order may be granted, and sale of land, by virtue of it, take place. Sale is made by referee in connection with plaintiff's at- torney. Notice of sale is given, and the land is sold to the highest bidder. If the land was divided into known lots, it should, if required by mortgageor, be sold by lot. Thus, if land has been sold since mortgage, it should be sold to satisfy mortgage in the inverse order of alienation, sell- ing first all unsold lots belonging to mortgageor. The object of this rule is that the first sold may be exempted. The right of purchasers is purely equitable, and the mortgagee must have notice of the claim. Notice may be actual or construc- tive. Record of subsequent conveyance is not notice to mort- gagee, because recording acts only operate prospectively. The proper practice in these cases is to have an order inserted in judgment that referee should make inquiry as to whether the land has been sold in lots, and then proceed accordingly. If mortgagee should violate this rule after notice and buy in land himself, the court would, on application of prior purchasers, set sale aside. But this course would not be taken against honest pur- chasers at foreclosure sale, provided proceedings were other- wise regular. After referee has sold land he makes report of sale, and if no objection is made, it will be deemed to be con- firmed, whereupon a deed will be executed by referee. All surplus moneys produced at mortgage sale are to be paid into court. After a rei:>ort of sale is filed an order may be ob- tained by any creditor who had a right to appear in the cause for a reference in respect to surplus moneys. All encum- brancers who give notice of appearance in the action are noti- fied to attend reference. Referee takes testimony as to vari- ous liens, and reports to the court ; money is then paid out by court to persons entitled. After sale purchaser is entitled to immediate possession. 286 PLEADING AND PRACTICE. [CHAP. XI. 4 Smith, 575 ; 2 Wend. 146 ; 2 Barb. Ch. 555 ; 11 Page, 129 ; 5 Wait's Pr., 189 ; Code of Civ. Pro., §§ 1626-36. SEC. 11. EEGtrLATING PAETICULAE ACTIONS. SECS. 1742-1947. 76. What is an action for negligence ? It is an action upon- a tort to recover damages brought by- one who has sustained an injury, caused by the negligence of another. If the injured party survives, no limit is placed upon the amount recoverable ; but should death result, his personal representatives are not allowed to recover more than five thou- sand dollars as damages, sustained by the death of the de- cedent. Such an action must be brought within two years after the decedent's death. Code of Civ. Pro., §§ 1902-5. SEC. 12. ACTIONS BX STATE WRIT. SECS. 1948-2148. 77. What are the State writs f The Code enumerates them as follows : The writ of (1) habeas corpus, to bring up a person to testify or to answer ; (2) the writ of habeas corpus and the writ of certiorari, to inquire into the cause of detention ; (3) the writ of mandamus ; (4) the writ of prohibition ; (5) the writ of assessment of damages, which is substituted for the writ heretofore known as the writ of ad quod damnum ; (6) and the writ of certiorari, to review the determination of an inferior tribunal, which may be called the writ of review. Code of Civ. Pro., § 1991. 78. What is the writ of habeas corpus? It is a writ directed to the person detaining another, and commanding him to produce the body of the prisoner at a cer- tain time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf. CHAP. XI. J PLEADING AND PEACTICE. 287 1 Bouvier's Law Diet. 651 ; 1 Shars. Blackst. Comm. 135 ; Hurd, Hab. Corp. 145. 79. What is the writ of mandamus f A writ of mandamus is in general a command issuing in tlie people's name from a court of superior jurisdiction, and directed to any person, corporation, or inferior court within the State, requtriag them to do some particular thing therein specified which appertains to their office and duty, and which the court of superior jurisdiction has previously determined, or at least supposes to be consonant to right and justice. 2 Shars. Blackst. Comm, 108. 80. Define the writ of certiorari. It is a writ issued by a superior to an inferior court of record, requiring the latter to send in to the former some pro- ceeding therein pending, or the records and proceedings in some cause already terminated in cases \vhere the procedure is not according to the course of the common law. 1 Bouvier' s Law Diet. 251 ; 3 Johns. N. Y. 23. 81. /« the writ of habeas corpus a writ of right ? It is. Code of Civ. Pro., § 2020 ; Rash v. People, 36 N. Y. 607 ; 25 How. 384. 82. In what way can you appeal from the decision of the commissioners or assessors of taxes on a tax matter ; or from the Board of Estimate ; or from the decision of any body having quasi-judicial powers, but not being a court ? Such a decision may be reviewed by the issuing of a writ of certiorari to review, and upon the return of such a writ the General Term of the court out of which it issued will pass upon the merits of the previous decision, and make a final order, annulling or confirming, wholly or partly, or modify- ing, the determination reviewed as to any or aU of the parties. Code of Civ. Pro., §§ 2120-48 ; 52 N. Y. 538. 83. How may a mortgage be foreclosed by advertisement ? This method may be resorted to when a power to sell is 288 PLEADING AND PKACTICE. [CHAP. XI. reserved in the mortgage and the mortgage has been recorded. The mortgagee proceeds in such a case to sell the property in accordance with the statutory provisions. Notice must be given in newspapers in the county once a week for at least twelve weeks. This notice must state names of parties, and describe premises mortgaged, and the clerk's office where the mortgage is recorded, its date, the amount due, and the fact that default has been made and that the mortgage will be foreclosed by sale. Personal notice must be served on the mortgagor and his grantees and all subsequent encumbrancers, and in case of mortgagor's death, on his personal representatives. This must be served by mail. Notice is also to be filed in clerk's ofiice in a book called " foreclosure book." The sale may be postponed from time to time, and notice of postponement must be published. The sale is at public auction by mortgagee himself or by an auctioneer. He proceeds in nearly the same manner as the referee in other kinds of foreclosure. No deed is necessary for the protection of the purchaser. Affidavits of all acts required by statute are to be made, with copy of notice as published in newspapers. These are recorded at length in the office of the clerk or register, and the title is thus evidenced. Clerk makes note in margin of original record of mortgage, referring to place where these affidavits are recorded. x\s these proceedings are strictly statutory, if they are not com- plied with purchaser gets no title and is to be regarded as mortgagee in possession. Any surplus money is paid to mortgagor, though subse- quent encumbrancers may require it to be paid into court, when reference may be ordered. It is more judicious to fore- close by action than by this method. 5 Wait's Pr., 350-68 ; 3 R. S. 545. 84. State the proceedings step hy step in an action for the claim and delivery of personal property . This action (of replevin), like all others, must be com- CHAP. XI. J PLEADING AND PRACTICE. 289 menced by tlie service of a summons, and the right to the remedy and to the proceedings under it is complete when the summons is issued and placed, with the proper undertaking and affidavit, in the hands of the sheriff, for service. The proper party plaintiff in such an action is the lawful owner of the property claimed, and it must appear that he is legally entitled to its possession. The proper party defendant is he who has wrongfully taken or detained the property of the plaintiff mentioned above. The form of the pleadings in this action was, in many material respects, regulated by the provisions of the Revised Statutes ; but these provisions have, to a great extent, been superseded by the Code of Civil Procedure. It is not neces- sary that the complaint in the action should correspond with the affidavit on which is founded the requisition to the sheriff as to the number and value of the articles to be de- livered. It is sufficient to describe in the complaint and claim only the property which was in the possession of the defendant when the action was commenced. So under the Code it was held not to be necessary to set forth the plaintiff' s title in the complaint, but that a general averment of ownership was sufficient. If an issue of fact has been produced, it is brought to trial in the ordinary way, and either party may notice the cause for trial. The trial itself is subject to the same incidents as in ordinary cases. In such . an action judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. Where the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for tak- ing and withholding the same. Code of Civ. Pro., §§ 1689-1736 ; 6 Wait's Pr. 118. . 37 290 PLEADING AND PRACTICE. [CHAP. XI. SEC. 13. PEOCEEDINGS WITHOUT WEIT. SECS. 2149-2471. 85. Write an affidavit of service of an affidavit and order to show cause. County, ss. : A. B., being duly sworn, says that on the day of ,18 , he deposited in the post-office at copies of the annexed affidavit, and order to show cause, each inclosed in a postpaid wrapper, and addressed as follows : One of said copies to I. J., at , his usual place of residence ; one of said copies to J. K., at , his usual place of residence, etc. A. B. Sworn to before me this day of , , 18 . O. P., Notary Public, N. Y. Co. Code of Civ. Pro., §§ 216.5, 2166. 86. What is an arbitration 9 The investigation and determination of a matter or mat- ters of difference between contending parties by one or more unofficial persons, chosen by the parties, and called arbitrators or referees. Code of Civ. Pro., §§ 2365-86 ; 1 Bouv. Law Die. 136. 87. What under the Code may be submitted to arbitra- tion ? All civil controversies, except where one of the parties to the controversy is an infant or a person incompetent to man- age his own affairs ; or where the controversy arises respecting a claim to an estate in real property, in fee or for life ; but the restriction in relation to real property does not prevent the submission of a claim to an estate for years, or other in- terest for a term of years, or for one year or less, in reality, or of a controversy respecting the partition of real property between joint tenants or tenants in common ; or of a con- troversy respecting the boundaries of lands or the admea- surement of dower. Code of Civ. Pro., §§ 2365-66. CHAP. XI. J PLEABIKG AND PEACTICE. 291 88. State tJie various proceedings of an arbitration and the effect of an award ; also on what grounds it may he set aside. The case stated and agreed to between the parties is called •the submission, and the final judgment or decision of the arbitrators, the award. The object of dispute between the parties is heard by the arbitrator or arbitrators, and they render judgment in .favor of the party whom they deem en- titled to prevail. Such arbitrators are given by the Code the power to^ com- pel the attendance of witnesses, to appoint a time and place for hearing the cause, and to do all other acts in connection with the res as will tend to render substantial justice between the disputants. An additional arbitrator, who is usually called an umpire, is allowed by the Code, but such an umpire cannot be selected or appointed unless the agreement to submit expressly so provides. The award or decision of the arbitrators may be made a judgment of the Supreme Court, upon application of the at- torney for the successful party ; but no award will be allowed to be valid or binding which was procured by fraud or undue influence, or where the arbitrators exceeded or imperfectly executed the powers intrusted to them. Code of Civ. Pro., §§ 2367-70, 2373, 2374. 89. What are the necessary averments in an affidavit to obtain an order to examine a judgment debtor in supple- mentary proceedings ? Such an affidavit should read : (Title of proceeding.) County, ss. : A. B., being duly sworn, says that on the day of , 18 , a judgment was rendered by the (name court or officer) in favor of (deponent) and against C. D. for dollars and cents damages and dollars and cents costs (which judgment was afterward duly assigned to (deponent), and is now owned by him. 292 PLEADING- AND PRACTICE. [CHAP. XI. (That the judgment- roll thereupon was duly filed in the office of the county clerk of the county of , and said Judgment was duly docketed ia said clerk' s office on the day last aforesaid.) (That a transcript thereof was duly filed, and said judg-, ment was duly docketed in the county clerk's office ou the day of , 18 .) That said Judgment was rendered upon the said Judgment debtor's appearance (or upon the personal service of the sum- mons upon said C. D.). That an execution was duly issued upon said Judgment out of said court (or name other court of record out of which the execution was issued) on the day of > 18 ., against the property of the said C. D. to the sheriff of the county of , where the said C. D. resides (or has a place for the regular transaction of business in person), at the time of the commencement of this proceeding. (Or where the Judgment-roll upon said Judgment (or where a transcript of said Judgment) is filed as aforesaid, said C. D. not being at the time of the commencement of this proceeding a resident of this State.) That said execution has, less than ten years since, and on the day of , 18 , been duly returned by said sheriff to the county clerk of the county of wholly unsatisfied (or unsatisfied to the extent of dollars), and that the whole amount of said Judgment is still unpaid, together with interest thereupon from the day of , 18 , (or that there still remains due and unpaid upon said Judgment the sum of dollars, together with in- terest thereupon, from the day of , 18 .)• (Deponent further says that he is the attorney (or agent) of said (naming party on whose behalf the application is made), and as such is duly authorized -to take proceedings against said C. D., as provided in title twelfth of chapter seventeenth of the Code of Civil Procedure.) That no previous application has been made herein for an order to examine the Judgment debtor hereinbefore mentioned ; or if made, state to what court or Judge and what order or de- CHAP. XI. J PLEADING AND PRACTICE. 293 cision was made thereon and what new facts, if any, are claimed to be shown. (Signed) A. B. Code of Civ. Pro., § 2435 ; N . Y. Gen. Rules of Pr., Rule 25. SEC. 14. surrogates' courts, secs. 2472-2860. 90. What is an administrator with the will annexed, and who appoints him ? If upon the presentation of a will for probate it appears that the executor or executors named in the will, or selected by virtue of a power contained therein, refuse or are incom- petent to act, the surrogate must, upon the application of a creditor of the decedent or a person interested in the estate, and upon such notice to the other creditors and persons inter- ested as he may deem proper, appoint an administrator of the estate, and such an administrator is known as " an adminis- trator with the will annexed." Code of Civ. Pro., §§ 2643-45. 91. What is ancillary administration ? It is that administration which is subordinate to the principal administration for collecting the assets of foreigners. It is taken out in the State or other political division where the assets are locally situated. 1 Bouv. Law Die. 83 ; Code of Civ. Pro., §2695. 92. Describe the process of appointing and removing a guardian. The Surrogate's Court has this power. The application for the appointment of a general guardian must be made to the Surrogate's Court by a written petition, duly verified, setting forth the facts upon which the jurisdic- tion of the court depends, and praying for a decree appointing a general guardian, either of the person or of the property of the infant, as the case requires ; and, if necessary, that the persons entitled by law to be cited upon such an apyjlication may be cited, to show cause why such a decree should not be made. Upon the return of the citation the surrogate must make such a decree in the premises r.s justice requires. 294 PLEADING AND PKACTICE. [CHAP. XI. Ii the infant is over the age of fourteen he may nominate his own guardian. The code provides that a guardian may be removed for the following causes : 1. Where the guardian is disqualified by law or is, for. any reason, incompetent to fulfil his trust. 2. Where, by reason of his having wasted or improperly applied the money or other property in his charge, or invested money in securities unauthorized by law, or otherwise im- providently managed or injured the real or personal property of the ward, or by reason of other misconduct in the execution of his oiSce, or his dishonesty, drunkenness, improvidence, or want of understanding, he is unfit for office. 3. Where he refuses to obey the court or the law in the discharge of bis duties. 4. Where the grant of letters to him was obtained by a false suggestion of a material fact. 5. Where he has removed or is about to remove from the State. 6. In the case of the guardian of the peKson, where the infant's welfare will be promoted by the appointment of an- other guardian. 7. A widow judicially appointed may be removed upon her remarriage. The ward, or any relative or other person in his behalf, or the surety of a guardian, may, at any time, present to the Surrogate's Court a written petition, duly veri- fied, setting forth the necessary facts, and praying for a decree revoking the letters of guardianship ; and the guardian com- plained of may be cited to show cause why such a decree should not be made. Upon the return of the citation, if the material allegations of the petition are established, the surrogate is required to make a decree revoking the guardian's letters accordingly. Code of Civ. Pro., §§ 2822, 2832, 2833 ; Eedfield's Surrogates' Courts, 714, 730-32. 93. Can a general guardian le sued on Jiis liond before final account rendered, and if so in what case ? If the guardian fails to render an account and refuses so to do. Wann v. People, 57 111. 202. CHAP. XI. J PLEADING AND PRACTICE. 295 94. Can a person he sued in the same action upon his per- sonal liability and upon his Uability as executor or admin- istrator ? Yes, as where a person is both executor and devisee. Ryan v. Jones, 15 111. 6 ; Denegre v. Denegre, 33 La. 690 ; Hawes' Parties to Actions, § 74. SEC. 15. justices' courts, secs. 2861-3158. 95. When and how in a justice' s court may a jury trial he demanded ? After an issue of fact has been joined and at any time be- fore the justice proceeds to an investigation of the merits of the action, by swearing a witness or receiving evidence, either party or his attorney may demand a trial by jury. Code of Civ. Pro., § 2990 ; 10 Abb. 452. SEC. 16. COSTS AKD FEES. SECS. 3228-3332. 96. When does the attorney in an action become liable for costs ? The defendant in an action brought in a court of record may require security for costs to be given : Where the plaintiff was when the action was commenced either (1) not a resident within the jurisdiction of the court ; or (2) a foreign corpora- tion ; or (3) a person imprisoned under execution for a crime ; or (4) the official assignee of a person so imprisoned ; the official assignee or official trustee of a debtor ; or an assignee in bankruptcy ; where the action is brought upon a cause of action arising before the assignment, the appointment of the trustee, or the adjudication in bankruptcy ; or (5) an infant whose guardian ad litem has not given such security. Where the action is of the nature described in any of the foregoing cases, the plaintiff's attorney is liable for costs to the extent of $100, until security is given by the plaintiff in the manner prescribed by the Code. Where scandalous matter is ordered to be stricken out of 296 ' PLEADING AND PRACTICE. [CHAP. 21, a pleading, the attorney whose name is subscribed to such pleading may be directed to pay costs of the motion, and upon his failure so to do, may be punished for contempt. Klein V. Klein, 34 N. Y. Supr. Ct. 48 ; Code of Civ. Pro., §§ 545, 3268-78 ; Moir v. Brown, 9 How. 270. SEC. 17. DEFINITIONS AND EEGTJLATIONS. SECS. 3333-3356. 97. Name the different codes in force in New York. The Code of Civil Procedure, the Code of Criminal Pro- cedure, and the Penal Code. N. Y. Laws, 1876, 1881. 98. What is an " action ' ' ? An " action" is a proceeding begun by summons and complaint and terminating in a judgment. Belknap V. Walters, 11 N. Y. 477 ; Code of Civ. Pro., § 3333. 99. What are special proceedings ; enwmerate those men- tioned in the code. A ' ' special proceeding' ' is a proceeding independent of an action, and begun by motion, petition, writ, or other like method, to terminate in a final order. The principal special proceedings enumerated in the Code are as follows : I. Special Proceedings Instituted by State Writs. " 1. The writ of habeas corpus to bring up a person to testify. 2. The writ of habeas corpus and the writ of certiorari, to inquire into the cause of detention. 3. The writ of mandamus. 4. The writ of prohibition. 5. The writ of assessment of damages. 6. The writ of certiorari, to review the determination of an inferior tribunal. , II. Certain Special Proceedings Instituted without Writ. V 1. Proceedings relating to insolvent debtors. t/ 2. Summary proceedings to recover the possession of real property. CHAP. XI. j PLEADING AND PRACTICE. 297 3. Proceedings to punish for civil contempt. 4. Proceedings to collect a fine. 5. Proceedings to discover the death of a tenant for life. ' I 6. Proceedings for the appointment of a committee^ of *the person and property of a lunatic, drunkard, etc. 7. Proceedings to dispose of the real property of a lu- natic, drunkard, etc. 8. Arbitrations. 9. Foreclosure by advertisement. 10. Proceedings to change the name of an individual. 11. Proceeding for the voluntary dissolution of a cor- poration. 12. Supplementary proceedings. Code of Civ. Pro., §§ 1991, 3333 ; Belknap v. Walters, 11 N. Y. 477. 100. What is a judgment? It is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of pro- ceedings instituted therein for the enforcement of a right or the redress of an injury. 1 Bouvier's Law Diet. 760 ; Code of Civ. Pro., § 3343, subd. 20. 101. What is embraced in the term " real property'''' ? The words " real property" are co-extensive with lands, tenements, and hereditaments. Code of Civ. Pro., § 3343, subd. 6. 38 INDEX. Abandonment, meaning of in insurance, 163. Accessories, 173. Accident, 188. Account, book of, 208. stated, 263, 264. Accord and satisfaction, 73. Acknowledgment of deeds, 122. Actions : action defined, 296, parties to, 231. forms of, 231-36. in whose name to be brought, 231. real, 331. personal, 231, 232. mixed, 231, 333, 384, 235. ex contractu, 233, 333, 334. ex delicto, 232, 233, 234. how commenced, 252. for the claim and delivery of personal property, 388, 289. of tort, how extinguished, 137. by State writ, 386-87. Administration, 393. See Will, Testament. Admiralty law defined, etc., 148. Admissions in evidence, 215, 216. Adverse possession, title by, 119. Affldavit : of .service of affidavit and ("rder to show cause, 290. to examine judgment debtor, 290-93. of merits, 363. Affirmative easements, 104. Affreightment, contract of, 153. Agency, 17-25. different classes of agents, 17. authority to act as agent, how conferred, 17. particular agent, 18. power of agent to delegsite his authority, 18. responsibility of agent, 18. when notice to agent notice to principal, 18, 19. undisclosed principal, 19, 20. 300 INDEX. Agency, 17-25. agency in partnerships, 33, autliority of agent, bow revoked, 33. 33. Agreement defined, 10. Alien, right of to hold land, 135. Alienation, inverse order of, 103. Alluvion, 132. Alteration : defined, 222. of deed, 123. Ambiguity, in evidence, 217, 318. Ancient documents, 210. Ancillary administration, 393. Ansvper under code practice, 359, 260. Appeals, 281, 383. Arbitration : defined, 74^76. under codes of procedure, 290, 291. Arrest as a provisional remedy, 264-bo. Assault, 137, 138. defined, 137. Assent, 33-36. Assignability of a tort, 136. Assumpsit, action of, 233, 339, 340. Attachment as a provisional remedy. 268-70. Attestation clauses, 127, 333. Attorneys : at law, 21. in fact, 31. substitution of, 347. rule as to buying or becommg interested in rights of action, 347, 348. when liable for costs, 395, 296. Average, general, 154-56. Averments, 239. Awards, 74. B. Bail, 372, 373. Bailments, 39-43. bailment defined, 39. classification of, 39. locatio, 40. mandatory, 40. pledge, 40. . hirers, 40. common carriers, 41, 43 passenger ticket, 42. Ballast, 150. INDEX. 301 Bankruptcy, 15. Bar, plea in, 343. Bargain and sale, 108. Barratry, 161. Batteiy defined, 137. Bills. See Notes and Bills. of lading, 151. of discovery, 197. of interpleader, 198. of peace, 198. quia timet, 198, 199. to perpetuate testimony, 199. to take testimony de bene esse, 199. to remove cloud upon title, 199. Blanks in deeds, 133. Bond defined, 10. Bottomry defined, etc., 151, 153. Bought and sold notes, 44r46. Brown v. Volking, 135. Building, when personalty, 921 Burden of proof, 305. Burglary, 180, 181. Canons of descent, 116, 117. Caption and asportation, 177. Case, action on the, 233. Cause of action defined, 262. Certified copy, 233. Certiorari, writ of, 386-87. Champerty, 77. Character, evidence of, 207. Chattel mortgage, 40, 46. Cloud upon title, 199. Codes in New York, 396. See Pleadings and Practice. Codes, their effect upon equity jurisdiction and practice, 187. Collateral testimony, 330. Collisions, 156, 157. Complaint in an action, 254-58. Composition, what is meant by, 15 Conditional sales, 46-48, 99. Conditions in leases, 92. Considerations, 33-36. classified, 34. valuable, defined, 34. good, defined, 34. 302 INDEX. Conspiracy, malicious, 141. Construction and interpretation, 67, 68. testamentB, 68-71. defences, 71-79. damages, 79-80. Construction, rule of in pleading, 237. Constructive trusts, 110. Contracts, 9-80. contract defined, 9. 10. obligation defined, 10. covenant defined, 10. promise defined, 10. bond defined, 10. contract, necessary elements of, 10. contracts classified, 11. contracts, when held joint and several, 13. parties to a contract, 13-34. conditions precedent and subsequent, 46. relation of the consideration to the contract, 34 consideration, vrhen presumed, 34. effect of stating consideration in contract, 35. impossible consideration and its effect, 35. subject-matter of the contract, 36-49. notes and bills, 49-67. Contribution, doctrine of, 194. Conusance defined, 340. Conversion defined, 145, 146. Conversion, equitable, 189-90. Conveyance by married woman, 134. Coparcenary, estate of, 96. Copies, 333. exemplified, 232. certified, 333. examined, 333 Copyrights, 133, 138. Corporations, 31-33. defined, 81. classified, 81, 33 when to do business as unlawful, 32. "stock" defined, 33. ultra mres defined, 82. directors' power to convey property of, 38 " visitational power " defined, 33. Corpus delicti, 173. Costs and fees, 295, 396. Courts and oflicers thereof, 346-48. Courts of record in New York, 346-47. Covenant, action of, 233. Covenants defined, 10. INDEX. 5j03 Covenants defined : in leases, 93. to stand seized, 107, 108. usually contained in a deed, 120. running with the land, 120. Creditors, 13. Criminal law, 168-83. nature of a, crime, 168-70. persons capable of committing crime, 170, 171. parties to a crime, 172. felonies, 173-83. pleadings in, 346. Curtesy, tenancy by the, 87, 88. Cy pres doctrine, 68. Damages, 79, 80, 124, 340. Damnum defined, 135. Dartmouth College case, 4. Death, effect of upon joint contract, 13. presumption of, 167. Debt, action of, 233, 333, 336. Debtors, different classes of, 13. Declaration in common law pleading, 337-40. Deeds : definition of, 119. delivery of, 134. in escrow, 134. blanks in, 123. covenants in, 130. alteration of, 133, 134. Defence in pleading, 240. Defences : to a contract, 71-79. performance defined, 71. rules governing performance as a defence, 7*. part performance, 71. payment, 72, 73. tender, effect of, 73. legal tender defined, 73. accord and satisfaction, 73. novation defined, 73. difference between novation and assignment, 73. contributory negligence, 74. negligence defined, 74. arbitration, 74. estoppels, 76. Statute of Frauds, 76, 77. f!04 IXfDEX. Defences : illegal contracts, 77. usury, 77, 78. laws which impair obligations of contracts not to be passed, 79. Definitions and regulations in reference to code practice, 296, 397. Del credere commission, 32. Delivery of deed, 124. Demonstration defined, 301. Demurrer : in common law pleading, 238, 241, 245. imder code practice, 358. Deposit, etci, of property as a provisional remedy, 371, 373. Descent, 116-18. Detinue, action of, 238. Deviation defined, etc., 163. " Die by his own hand" construed,. 167 ''68. Dilatory pleas, 341. Discovery, bill of ; of books, etc., 274, 275. Divorce, 14. Dominant tenement, 104. Double insurance, 160, 165. Dower, 86, 87. Duress of goods, 16, 17. in criminal law, 171. Dying declarations, 211. B. Easements : defined, 81, 83. negative easements, 104. how acquired, 105. doctrine of dedication as applied to, 105. party walls, 105. difference betweeji and a license, 105, 106. how extinguished, 106. ^ terms dominant and servient tenements defined, 104. different kinds of, 104. Ejectment, action of, 334, 235. Embezzlement, 179. Emblements, 89. Eminent domain, 3, 4. Equity, 182-200. general principles, 183-87 equitable rights, 188-93. equitable remedies, 198-300. equity of redemption, 103. pleadings in equity, 245. Escheat, 118. INDEX. 305 Escrow, 124. Estates : conditional, 84^86. of freehold, 83, 84. for years, 90-94. from year to year, 94. at -will, 94. at suflEerance, 95. joint estates, 95-97. of entirety, 96. of coparcenary, 96. ' in common, 96, 97. Estoppels, 76. Estovers, 89.'^ Eviction, 93. Evidence, 201-30. definitions, 201-03. presumptive evidence, 203-05. rules governing the production of testimony, 305-10. hearsay and evidence excluded on public policy, 210-16. admissibility of parole evidence, 217-19. ■written evidence, 219-224. ■witnesses and their examination, 224-30. as regulated by the Ne-w York Code, 275, 276. Examined copy defined, 223. Executory devises, 111-14. Exemplified copy defined, 233. Exoneration defined, 194, 195. Expert testimony, 337-39. Express trusts in New York, 109. P. Factors, 33, 24. who is a factor, 23. difference between and brokers, 23. when may sell against orders of their principals, 24. factors' act, object of, 33, 24. False imprisonment, 138-40. False pretences, goods obtained under, 179. Father, extent of liability to support his cniidren, 6, 7. not liable for torts of his minor children, 7. Pee, conditional, 86. simple, 83. Fees and costs, 295, 296. Felonies, 173-82. Feudal system, 83, 83. 39 306 INDEX. Fire defined, 164. effect of destruction by on tenant's liability for rent, 91. Fire insurance, 163-66. Fixtures, 81. Foreclosure of a mortgage by action, 284r-86. by advertisement, 387, 288. Foreign State, laws of, how proved, 231. Forgery, 182. Former recover, effect of a, 331. Fraud, 190-93. defined, 190. constructive fraud, 190. divisions of fraud, 190. elements of a fraudulent misrepresentation, 190, 191. equity's jurisdiction in cases of, 191. presumed from relation of parties, 191, 192. Statute of Frauds, 76, 77. Freeholds, 83-90. Freight, 150, 153. Frivolous demuiTer, 261, 262. General questions, 1-9. Gifts, 70. " Giving color" defined, 343, 343. Good-will, 30 Grantee of judgment debtor, 136. Grantor, when estopped, 123. Grants, 120-36. Guaranty defined, 36-38. Guardian and ward, 8. who is a guardian, 8. guardian in socage, 8. guardian by nurture, 8. guardians under code practice, 393, 39'1- H. Habeas corpus, writ of, 386, 387. Handwriting of person, how proved, 319. Hearsay evidence, 210-16. Heir, who is an, 118. Hereditament, 104. Highway, land conveyed bounded by, 133. Homicide, 173, 173. Husband and wife, 4-6. See Marriage. Husband, ship's, 149. INDEX. 307 Ignorance of law and ignorance of fact in criminal law, 169, 170. Illegal contracts, 77. Imparlance defined, 241. Implied trusts, 110, 111. Incorporeal hereditaments, 104. Inducement defined, 239. Infants, 7, 16, 170. Injunctions : defined, 196. classified, 196. when issuable, 196, 197. as a provisional remedy, 267, 268. "Injuria" defined, 135. Insolvency, 15. Insurance, 15&-68. marine insurance, 158-63. fire insurance, 163-66. life insurance, 166-68. Intent in the law of torts, 136. in criminal law, 169. Interesse termini, 93. Interpleader, hill of, 198. under code practice, 27o. Intestate, property of, 117, 118. Intoxication, 171, 192. Irregular parts of pleading, 237, 238. Issues, 245. Joint estates, 95-97. Joint tenancy : defined, 95. how destroyed, 96. Jointure, estate of, 88. Judgment : title by, 118, 119. whether it takes precedence of unrecorded mortgage, 101. when equity will set aside, 192. defined, 297. • of nonsuit, 323. Judicial notice, 301, 202. Jurors, 279. 280. Jury, 377, 378. Justices' courts, 295. 308 INDEX. Larceny, 177, 178, Latent ambiguity, 317, 218. Law : in general, 1-4. common, 1. statute, 1. municipal, 1. ex post facto, 1. Civil or Roman, 2. international, 2. none to be passed impairing the obligations of contracts, 79. bankrupt and insolvent, 15. of place, 67, 139. Leading cases, 3, 3. Leading questions, 228. Lease and release, 108. lease -when -vvitlim the Statute of Frauds, 94. Lessee, grounds of his liability for rent, 9. when may deny landlord's title, 92, 93. Lex fori, 67. Lex loci contractus, 67. Liability, rules for determining whether joint or severpl, 11. Libel defined, 142. License, difference between and easement, 105, 106. Lien : v defined, 79. vendor's, how enforced, 101. Lien in admiralty, 153. Life Insurance, 166-68. Life tenants, rights and duties of, 88, 81. Limitations of actions, 349-52. Limited liability acts, ,157. Lloyd's policies, clause in, 161. M. Magna Gharta, 3. Maintenance, 77. Mala in se, 168, 169. Mala prohibita, 168, 169. Malice, 140, 141. Malicious conspiracy, 141. Malicious prosecution, 140, 141. Mandamus, writ of, 386, 387. Manslaughter, 178-77. Marine insurance, 158-63. INDEX. 309 Marriage : what is, 4. who may contract, 5. by what law governed, 5. how dissolved, 5. no particular form required to render it valid, 4. power of wife to contract, 13. wife may act as agent of husband, 13. age of consent for, 18. distinction between void and voidable marriages, 14. divorce, 14. right of husband to wife's property at common law, 5, 6. interest of wife in property of husband, 6. rule as to crime by wife in husband's presence, 171. vrife's power to convey property to husband, 136. conveyance by married man, 124. married women, when estopped by their conveyances, 123, 138. Marshalling of securities, 195. Master and servant, 9. Master of ship, 150. Material men, 152. Maxims in equity, 184, 186. Mayhem, 137. Mental unsoundness as a defence for crime, 170, 171. Miscellaneous proceedings, 373-75. Misdemeanor, 169. Misfeasance of public officer, 141, 142. Mistake, 188, 189. Mortgages, 98-108. mortgage defined, 98, 99. who may mortgage, 99. rule as to validity of, 99. what may be the subject of, 99. mortgage to secure future advances, 99. meaning of maxim, " Once a mortgage always a mortgage," 100. when equity pf redemption may be waived, IQQ. power of sale in a mortgage, 100. either legal or equitable, 100, 101. how far vendor's lien assignable, 101. position of assignee of a mortgage, 101, 102. equity of redemption defined, 103. insurance, how effected upon mortgaged property, 103, 103. inverse order of alienation, 103. foreclosure of (a) by action ; (&) by a/lvertisement, 384-88. Motion, notice of, 373. Murder, 173-75. 310 INDEX. N. Nature of a crime, 168-70. Ne exeat, writ of, 300. Negative easements, 104. Negligence, contributory, defined, 74. tlie term negligence defined, 147. action for, 286. the case of Thomas v. Winchester, 147. Negotiable paper, 49-67. New assignment defined, 344. New York, lands in who may hold, 124, 125. when alien may hold land in, 135. Notes and Bills, 49-67. See forms of, 59-67. negotiable paper defined, 49. difference between, and ordinary clioses in action, 49. promissory note defined, 50. bill of exchange defined, 50. letter of credit defined, 50. note or bill under seal not negotiable, 51. " equitable defences" defined, 51. distinction between business paper and accommodation paper, 53. inception of commercial paper, 53. endorsements " in full," " in blank," and " without recourse" defined, 53. endorsers, how discharged, 53. note payable at a particular place, 54. usurious note, 55. transfer after maturity, 55. thief can confer good title to business paper, when, 55. note obtained by fraud, 55. forged check, 55. purchaser in good faith, 56. acceptor of a bill primarily liable, 56. presentment for acceptance, when necessary, 56. how soon acceptance must be made after presentment, 57 protest, 57. acceptance supra protest, 58. Notice defined, 189. Novation, 73. Nuisance, 146, 147. Nuncupative will, 189. Obligation defined, 10. Office grant defined, 130. Official registers, 334. " One third off new for old " explained, 240, 241. INDEX. 311 Open policy defined, 160. Order extending time to demur, 263, 263. ex parte, 374. Oyer, in pleading defined, 340, 341. P. Parent and Child, 6, 7. parent not liable for torts of child, 7. parents' right to services of child, 7. Parole evidence, 317-19. Part-owners, 149. Parties to a crime, 173. Parties to actions, 231, 353-54. Partition suit, proceedings therein, 283-84. Partnership, 35-31. how formed, 35. general criterion as to existence of, 25. Waugh V. Carver, doctrine of, 35. agreement to form, 25. distinction between, and a joint tenancy, a tenancy in common, 36. must be voluntary, 36. nominal partner, 26. secret partner, 36. dormant partner, 37. ostensible partner, 37. limited or special partnerships, 37-39. true nature of the relationship between partners, 39. partner cannot secretly take renewal of lease, 29. real estate held in partnership, 39. suits between firms, when cannot be brought, 39. suits between partners, 39. power of partner to bind Ann, 30. retiring partners, 31. how partnerships are terminated, 31. Party walls, 105. Patent ambiguity defined, 217, 218. Patent for land, when void, 131. Patents for inventions, 130-33. Payment of money into court, wjiat admitted by, 314. Peace, bill of, 198. Pedigree, declarations as to. 315. Peremptory pleas defined, 341. Performance, 71. Perjury, 181. Pilots. 149-50. " Hainliffi in error" defined, 331. 312 IND^X. Pleadings and practice : (a) AT COMMON LAW, 331-45. parties to actions, 231. forms of actions, 331-36. pleading in general, 336745. (J) UNDER CODBS OF PBOCEDURB, 346-97. courts and oiHcers thereof, 346-48. jurisdiction and organization, 348. limitation of actions, 349-58. parties and pleadings, 353-64. provisional remedies, 364-73. miscellaneous proceedings, 373-75. evidence, 275, 376. trials, 377-80. appeals, 381, 383. regulating certain actions, 383. regulating particular actions, 386. actions by State writ, 386, 387. proceedings without writ, 390-98. surrogates' courts, 293-95. justices' courts, 395. costs and fees, 295, 396. definitions and regulations, 396, 397. Pleas, 341-43. Pledge, 40. Powers, 114, 115. power, naked, 31. power of attorney, form of ; coupled with an interest, 31. " Premium " defined, 159. Prescription, doctrine of, 119. Presumptive evidence, 203-05. Principal, undisclosed, 19, 30. Principals in criminal law, 172. Privileged communications in the law of libel and slander, 145, 316. in the law of evidence, 216. Privity defined, 91. Probable cause defined, 140. Proceedings without writ, 390-93. Prohibition, writ of, 286. Promise defined, 10. " Proof of loss " defined, 164. " Proof " defined, 201. " Proximate cause " defined, 160. Q. Quia timet, hill, 198, 199. INDEX. 313 B. Real property, 81-130. classification and nature of real property, 81, 82. the feudal system, etc., 81-83. freeholds of inheritance, 83-86. freeholds not of inheritance, 86-90. estates for years, 90-94. estates from year to year, 94. estates at will, 94. estates at sufferance, 95. joint estates, 95-97. estates upon condition, 97, 98. mortgages, 98-103. incorporeal hereditaments, 104-106. uses, 106-08. trusts, 109-11. remainders, executory devises, and shifting and springing uses, 111-14 powers, 114, 115. title by descent, 116-18. title by purchase, 118-30. "real property" defined, 397. Rebutters, 345. Receivers, appointment of as a provisional remedy, JJ^O-Ti. Receivers in equity, 300. Recording acts, 121. Reference, compulsory, when ordered, 278. Registers, oflflcial, 224. Regular parts of pleading, 237, 238. Regulating actions, 383-86. certain actions, 383-86. particular actions, 286. Re-insurance, 160-66. Rejoinder,, 344, 345. Relationship, degrees of, how computed, 117. Relevancy of evidence, 209. Remainders, etc., 111-14. Replevin, action of, 234. Replication defined, etc., 343, 244. Reply, 260. "Bes gestm" defined, etc., 206, 209. " Beg inter alios acta " defined, 306. Respondentia, 153. Resulting trusts, 110. Reversions and remainders, 84, 85. Revocation of will, 139, 130. Risks and losses insured by marine policies, 15», 163, 161 River, land bounded by, 122. Robbery defined, etc., 179, 180. 40 314 INDEX. Sales, 43-49. sale of a ship, 153. sales to arrive, 47, ^. in market overt, 43 when presumed fraudulent, 44. Salvage, 158, 154. Seal, when evidence of consideration, 205. Searches, in whose offices to he made, 135, 136. Seashore, land bounded by, 133. Secondary evidence, 308-10. Seduction, 141. Seizin, damages for breach of covenant of, i^A Servant. See Master and Servant. when entitled to wages, 39. Servient tenement, 104. Sham defence, 361, 363. Shelley's Case, rule in, 113. Shipping and insurance, 148-68. shipping, 148-157. marine insurance, 158-63. fire insurance, 163-6P life insurance, 166-68. Slander, 143-45. Socage defined, 83. Special proceedings, 396, 397. Specific performance, 195, 196. Splitting, causes of action, effect of, 333. Spoliation, 323. Springing and shifting uses, 111-14. State writs, 386. Statute of Frauds, 76, 77. Statute of Uses, 107. Statute of Wills, 126, 127. Statutes of limitation, 249-53. Stoppage in transitu, 44. Sub-letting, 91. Subject-matter of contract, 36-49. Subpoena, 325, 376. Subrogation defined, 195. Substance of issue, rule as to, 208, 209. Summons, 252-54. Superior Court of New York, jurisdiction of, 248 Sur-rejoinder, 345. "Surcharge and falsify" defined, 194 Suretyship, 38. Surplusage, 837, 243. INDEX. 315 Supreme Court of New York, jurisdiction of, 348. Surprise, 193. Surrogates' courts, 295. Tenancy in common, 96, 97. Tenant, when entitled to estovers and emblements, 94. Tender, 373. Testament defined, etc., 34, 6S-70. Testimony, mles governing the production of, 305-lu. Time policy, 158. Title defined, 116. Torts, 134r-48. nature and classification of torts, 134^87. torts affecting the person, 137-43. torts affecting the character or reputation, 143-45. torts affecting property, 145-47. indirect modes of violating different classes of rights, 147, 148. Trade-marks, 133, 184. Traverse, 361. Treason, high, 173. Trespass : defined, 145. action of, 333. in the law of larceny, 177, 178. Trials, 377-80. Trover, action of, 333. Trusts, 109-11. nature and origin of, 109. Classified, 109. active and passive, 109. express trusts in New York, 109. resulting, 110. constructive, 110. proof of, required by Statute of Frauds, 110. Implied, 110, 111. Uses, 106-08, 111-14. Usury, 77. Valued policy, 160. Variance, 306, Verification, 361, 363. Voyage policy, 158. U. V. 316 INDEX. w. Waiyer, in insurance law, 164, 165. Warranty : in the law of contracts, 48, 49. in the law of insurance, 162. Waste, 88, 89. Wills; 68, 126-30. Witnesses, 324-30. Writings, how proved, 219, 291 Writs, 200, 286, 287.