OJnrnpll 21am ^rl^nnl Sjibtary Cornell University Library KF 386.R66 Elementary law / 3 1924 018 811 459 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018811459 ELEMENTAEY LAW. BY WILLIAM C. ROBINSON, LL.D. PEOFESSOE OP ELEMEKTAKT LAW IN TALE COLLEGE. BOSTON: LITTLE, BROWN, AND COMPANY. 1882. Entered, according to Act of Congress, in the year 1882, By William C. Eobimson, In the Ofiice of the Librarian of Congress at Washington. Universitt Press: JoHH Wilson and Son, Cambkidgb. TO \ ; - ■ H^NDRICK BRADLEY WRIGHT, OP Pennsylvania, in kemembbancb of his kindness as an instructor and his fidelity as a friend, This Treatise IB Kespectfully Inscribed. PEE FACE. This work is intended to serve three purposes: (1) To form a text-book for the use of students in law-schools, and of others who are under competent instruction ; (2) To guide private students in their investigation of the rules and definitions of the law; (3) To render students familiar with some of the leading treatises upon the principal topics of the law. An experience of several years, in the direction of legal studies, has convinced the author, that the progress of the student, in the different branches of the law, is vastly facilitated by a previous examina- tion of those branches collectively, and with reference to their relations to each other. In order to provide the means of thoroughly and quickly making this examination, he has, therefore, endeavored to bring together, in this narrow compass, the elementary principles and doctrines of the law, exhibiting them in their logical and practical" connections with each other, and thus acquainting the student, at the out- set of his labors, with the nature and scope of the science, which he is afterwards to master in detail. vi PREFACE. The benefits, hitherto resulting to the members of the Law Department of Yale College from this intro- duction to their severer studies, inspires the author with the hope that his work may prove serviceable to many, who pursue their professional researches under the auspices of other Schools of Law. Regarding this treatise as a manual for the use of students, the author has adopted a style as didactic and concise as possible. Nearly every sentence is intended to be an answer to a question, and to embody some maxim, principle, or definition. Illus- trations, as well as explanations, have generally been omitted, the student having access to such aids in the text-books to which he is constantly referred. Conjectures, and expressions of private opinion, have also been scrupulously avoided, and the beaten track of authority has been followed, as nearly as the au- thor could himself discern it. If he has made any mistake therein, it is his consolation that the care- ful student will correct the error, by an examina- tion of the works, to which the readings continually direct him. In the preparation of this manual, the author has also had in mind the wants of those students, who, deprived of the advantages of a law-school, and, pos- sibly, of every other mode of instruction worthy ot the name, are endeavoring, in private, to acquire a knowledge of the law. Hence, in selecting and arranging the collateral readings, he has attempted not merely to direct attention to those passages, PREFACE. Vii which support or illustrate the positions taken in the text, but to map out, by means of these readings, a complete course of study on the several branches of the law, and, as far as possible, to present those branches in their historical development as well as in their present condition. This will be especially apparent in respect to the subjects of Real Property and Criminal Law. In the use of this treatise by the private student, the following method should be pursued. The text should first be thoroughly mastered, the rules and definitions being committed to memory, and the au- thorities referred to being examined, as far as may be necessary to an understanding of the principle stated in the text. Then, beginning once more Avith the Introduction, each paragraph, with its accom- panying readings, should be carefully studied, in the order given, so far as access can be had to the text- books therein named. Pursuing this method, even the unassisted student, with limited library facilities, may hope to acquire, within a reasonable period of time, an extensive and systematic knowledge of the law. Another, and by no means unimportant, object of this work is to familiarize the student with some of the leading treatises on the different branches of the law. Treatises are to the student, as well as to the lawyer, the " tools of his trade," and one of the ne- cessities of an accomplished student or practitioner is the ability to refer readily to authority, upon the viii PREFACE. propositions which he investigates or maintains. So far as was possible within the limits of this volume, the author has endeavored to effect this object. He has been careful to refer only to standard writers, and to those whose works are in most common use. No disparagement of books not mentioned is, how- ever, to be implied from their omission. Want oi space alone has prevented the citation of many, whose authors are now, and long hereafter will be, venera- ted as luminaries of the law. In preparing these readings, the author has expe- rienced one difficulty, which, as it will be shared by the student, should also be explained to him. It arises in connection with the references to works of living writers. As new editions of these works are from time to time appearing, increased in bulk by the addition of new matter or modified in doctrine by the decision of new cases, the references, which are suitable to one edition, become often wholly erro- neous in regard to the next. In many of these new editions, the divisions of former ones are preserved, either as bottom-pagings or side-pagings, or some key is given, by which a reference to the old edition may be adapted to the new ; and where this is done, the Table of References, which immediately follows this Preface, in connection with such key or former paging, will afford the student ready access to the authority for which he seeks. But where editions rapidly succeed each other, this preservation of divi- sions soon becomes impracticable, and, in such cases, PREFACE. ix the student must have recourse to the table of con- tents, or the index of the work to which he refers. In using these, he should remember that different authors index the same subject under different heads, and should not regard himself as utterly defeated in his search, until he has exhausted the possibilities of legal nomenclature. The time thus occupied will be by no means the least profitable portion of his period of legal study. Yale College, March, 1882. TABLE OF REFERENCES. BEFERENCES. Abbot U. S. Prac. Adams Eq. Jut. Addison Torts. Angell and Ames Corp. Arch. Cr. Pr. Austin Jur. B. & H. L. C. C. Bac. Abr. BigelowL.C. Torts. Bish. C. L. Bisli. C. P. Bishop First Book of Law. Bish. Mar. and Div. Bl. Comm, Bliss Code PI. Broom Comm. Broom Leg. Max. Bnrlamaqui. BurriU Circ. Ev. TEXT-BOOK. Abbot on United States Courts and their Prac- tice. Adams' Doctrine of Equity. Addison on the Law of Torts. Angell and Ames on the Law of Private Cor- porations. Archbold on Criminal Procedure. Water- man's notes. Austin's Lectures on Jurisprudence. Bennett and Heard's Leading Criminal Cases. Bacon's New Abridg- ment of the Law. Gwillim's notes. Bigelow'g Leading Cases on the Law of Torts. Bishop on Criminal Law. Bishop on Criminal Pro- cedure. Bishop's First Book of the Law. Bishop on Marriage and Divorce. Blackstone's Commen- taries. Bliss on Code Pleading. Broom's Commentaries on the Common Law. Broom's Legal Maxims. Burlamaqui on Natural and Political Law. Burrill on Circumstantial Evidence. EDITIOlf. MODE OF REFERENCE. N. Y., 1869. Top paging, Philada., 1855. Side paging. N. Y., 1876. Sections. Boston, 1871. Sections, N. Y., 1860. Top paging. London, 1869. Lectures. Boston, 1869. Top paging. London, 1798. Titles. Boston, 1875. Top paging. Boston, 1877. Boston, 1880. Sections. Sections . Boston, 1868. Chapters. Boston, 1881. Chapters. Philada., 1861. Side paging. St. Louis, 1879. Philada., 1873. Sections. Side paging. Philada., 1868. Philada., 1832. Side paging. Top paging. N. Y., 1859. Top paging. xu TABLE OP REFERENCES. CMtty C. L. Chitty Gen. Prao. Chitty PI. Com. Dig. Conn. Cooley Const. Lim. Cooley Const. Law. Cooley Torts. Cruise Dig. Curtis U. S. Courts. Gushing Leg. As- semb. Dal. DanieU Ch. Pr. Dillon Mun. Cor. Drake Attach- ment. Federalist. Frothingham Else Rep. Gould PI. Graham and Wa- terman N. T. Greenl. on Ev. H. P. C. High Ex. Leg. Eem. High Inj. High Keceivers. Hill. Bern. Hill. Torts. TEXT-BOOK. Chitty on Criminal Law. Chitty on the Practice of the Law, commonly called Chitty's General Practice. Chitty on Pleading. Comyns' Digest of the Laws of England. Connecticut Reports. Cooley on Constitutional Limitations. Cooley on General Prin- ciples of Constitutional Law. Cooley on the Law of Torts. Cruise's Digest of the Laws of England re- specting Real Property. Curtis on Jurisdiction, &c. of the Courts of U.S. Cushing's Law of Legis- lative Assemblies. Dallas' United States and Pennsylvania Reports. Daniell's Pleading and Practice in Chancery, Dillon on the Law of Mu- nicipal Corporations. Drake on Attachment. Federalist. Frothingham's Rise of the Republic. Gould on the Principles of Pleading. Graham and Waterman on Law of New Trials. Greenleaf on the Law of Evidence. Hale on the History of the Pleas of the Crown. High on Extraordinary Legal Remedies. High on the Law of In- junctions. High on the Law of Re- ceivers. Hilliard on Remedies for Torts. Hilliard on the Law of Torts. Philada., 1819. Philada., 1834. Springf Id, 1859. N. Y., 1824. Boston, 1878. Boston, 1880. Chicago, 1880. N. Y., 1827. Boston, 1880. Boston, 1866. Philada., 1798. Boston, 1865. Boston, 1881. Boston, 1873. Hallowell, 1857. Boston, 1872. Albany, 1861. N. Y., 1855. Boston, 1876. PhUada., 1847. Chicago, 1874. Chicago, 1874. Chicago, 1876. Boston, 1873. Boston, 1866. MODE OP KEFERENCE. Side paging. Top paging. Side paging. Titles. Top paging. Side paging. Top paging. Top paging. Chapters. Top paging. Top paging. Top paging. Top paging. Sections. Sections. Numbers. Top paging. Chapters. Top paging. Sections. Side paging. Chapters. Sections. Sections. Chapters. Chapters. TABLE OF REFERENCES. XIU KRFEBENCES. Hurd Hab. Corp. Jameson Coast. Conv. Jarman Wills. Kent Comm. Kerr Inj. McFarland's case. Mitfoid and Tyler Eq.Pl. Moses on Manda- mus. Pars. Cent. Pars. Mar. Law. Pet. Pomeroy Mnn. Law. Pomeroy Bern. Potter Corp. Potter's Dwarris on Stat. Kedfield Wills. Reeve Dom. Bel. Rev. Stat. U. S. 1878. Root. Enss. Cr. Russ. and By. Sedgwick on Stat. and Const. Law. Schouler Dom. Rel. Shep. Touchstone. Smith L. C. Starkie Ev. Stephen Ev. Stephen PI. Story Const. Story Eq. Jvir. TEXT-BOOK. Hurd on Habeas Corpus. Jameson on Constitu- tional Convention. Jarman on Wills. Bige- low's Edition. Kent's Commentaries on American Law. Kerr on Injunctions. Ibid. Mitford's and Tyler's Chancery Pleadings. Ibid. Parsons ou the Law of Contracts. Parsons on Maritime Law. Peters' Reports Supreme Ct. of United States. Pomeroy's Introduction to Municipal Law. Pomeroy's Remedies and Remedial Rights. Potter on Corporations. Dwarris on Statutes. Potter's Notes. Redfleld on the Law of Wills. Reeve on the Law of Baron and Femnie,com- monly called Reeve's Domestic Relations. Revised Statutes of the United States. Root's Connecticut Re- ports. Russell on Crimes and Misdemeanors. Russell and Eyan's Crown Cases. Sedgwick on Statutory and Constitutional Law. Schouler on the Law of the Domestic Relations. Sheppard's Touchstone. Smith's Leading Cases. Starkie on Evidence. Sharswood's Notes. Stephen on Evidence. Stephen on Pleading. Story on the Constitu- tion. Story's Equity Jurispru- dence. Albany, 1S76. N. Y., 1867. Boston, 1881. Boston, 1860. Boston, 1871. N. Y., 1870. N. Y., 1876. Albany, 1867. Boston, 1873. Boston, 1859. N. Y., 1865. Boston, 1876. N. Y., 1881. Albany, 1871. Boston, 1866. Albany, 1867. Washing'n, 1878. Hartford, 1798. Philada., 1857. Philada., 1839. N. Y., 1857. Boston, 1870. Dublin, 1785. Philada., 1847. Philada., 1860. Chicago, 1879. Philada., 1867. Boston, 1873. Boston, 1846. MODE OF REFERENCE. Cliapters. Sections. Chapters. Lectures and side paging. Side paging. Volume. Top paging. Chapters. Chapters. Cliapters. Top paging. Sections. Sections. Sections. Top paging Chapters. Side paging Titles. Top paging. Side paging. Side paging. Top paging. Top paging Chapters. Cases. Side pagingi Chapters. Side paging. Sections. Sections. XIV TABLE or KEFERENCES. MODE OF _' REFERENCES. TEXT-BOOK. EDITION. REFERENCE. Story Eq. PI. Story's Equity Pleading,s. Boston, 1840. Sections. Swilt Dig. Swift's Digest of the Laws of Connecticut. N. Haven, 1862. Side paging. Tidd Prac. Tidd's Practice. Philada., 1828. Side paging. Vattel. Vattel's Law of Nations. Dublin, 1792. Sections. Walker Aim. Law. Walker's American Law. Boston, 1878. Sections. Washb. K. P. Washburn on the Ameri- can Law of Real ProiJ- erty. Wharton on Criminal Boston, 1876. Chapters. Whart. C. L. Philada., 1874. Sections. Law. Waiard Eq. Jur. Willard on Equity Juris- prudence. N. Y., 1875. Side paging. wm. P. p. Williams on the Law of Personal Property, 61 and 62 Law Library. Philada., 1848. Side paging. wai. E. p. Williams on the Law of Real Property. PhUada., 1866. Side paging. Wilson. Lectures ou Law in Works of James Wil- Philada., 1804. Top paging. Woolsey Int. Law. son. Woolsey on International Law. N. Y., 1879. Sections. TABLE OP CONTENTS. INTRODUCTION. § 1. Of Law in General. 2. Of International and Municipal Law. .3. Of Federal and State Law. 4. Of Unwritten and Written Law. 5. Of the Unwritten Law of the United States. 6. Of the Development of the Unwritten Law. 7. Of Maxims, Definitions, and Judicial Decisions. 8. Of the Written Law of the United States. 9. Of Statutes. 10. Of Public and Private Statutes. 11. Of Declaratory and Remedial Statutes. 12. Of Affirmative and Negative Statutes. 13. Of the Interpretation and Application of Law. 1-1. Of llio Interpretation of Statutes. 15. Of the Object of Law. 16. Of Eights and Wrongs. 17. Of Natural Persons. 18. Of Artificial Persons. Corporations. 19. Of Aggregate and Sole Corporations. 20. Of Public and Private Corporations. 21. Of Equity. 22. Of Maritimo Law. XYi TABLE OF CONTENTS. BOOK I. OF PRIVATE EIGHTS. § 23. Of Absolute Rights. 24. Of Relative Eights. CHAPTER I. OF THE RIGHT OF PBESONAL SECURITY. §25. Of Life. 26. Of the Limbs. 27. OftlieBody. 28. Of Health. 29. Of Reputation. 30. Of the Rights of the State over the Person of the Subject. 31. Of the Methods by which the Law Protects Life, Limbs, and Body. 32. Of the Methods by which the Law Protects Health. 33. Of the Methods by which the Law Protects Reputation. CHAPTER n. OP THE RIGHT OF PEESOJTAL LIBERTY. § 34. Of Freedom and Imprisonment. 35. Of the Rights of the State over the Liberty of the Subject. Of the Methods by which the Law Protects Personal Lib- erty. 36. CHAPTER in. OF THE EIGHT OF PRIVATE PROPERTY. § 37. Of the Right of Property. 38. Of Property in General. 89. Of Corporeal Property. 40. Of Incorporeal Property. 41. Of Real Property. 42. Of Personal Property. TABLE OF CONTENTS. XVli §43. Of Fixtures. 44. Of Corporeal Real Property. Land. 45. Of Incorporeal Real Property. Incorporeal Hereditaments. 46. Of Advowsons. ' 47. Of Tithes. 48. Of Commons. 49. Of Ways. 50. Of Offices. 51. Of Dignities. 52. Of Franchises. 53. Of Corodies and Pensions. 54. Of Annuities. 55. Of Rents. 56. Of Incorporeal Hereditaments in the United States. 57. Of Easements of Support, Water, Light, Air, Partj- Walls, Wharves, &c. 58. Of Corporeal Personal Property. 59. Of Incorporeal Personal Property. 60. Of Estates. 61. Of the Ownership and Transfer of Estates. 62. Of Real and Personal Estates. 63. Of Legal and Equitable Estates. CHAPTER IV. OP ESTATES IN REAL PROPERTY. j 64. Of the Attributes of Estates in Real Property. 65. Of Real and Personal Estates in Real Property. 66. Of Ancient Manors. 67. Of Feudal Services. 68. Of Feudal Estates for Life. 69. Of Estates of Freehold and Less than Freehold. 70. Of the Seisin of Freehold Estates. 71. Of the Seisin during the Existence of Estates Less than Freehold. Disseisin. 72. Of the Seisin of Concurrent Freehold Estates. 73. Of Legal Presumptions as to Seisin and Freehold. 74. Of Seisin in Fact and Seisin in Law. 6 xviii TABLE OF CONTENTS. § 75. Of Livery of Seisin. 76. Of Freeliolds in Futuro. 77. Of Uses. 78. Of tlie Statute of Uses. 79. Of Trusts. 80. Of the Effect of the Statute of Uses on Lively of Seisin. 81. Of the Effect of the Statute of Uses on Freeholds in Futuro. 82. Of " Livery " and " Grant." 83. Of the Possession of Estates Less than Freehold. 84. Of Entry. CHAPTER V. OF REAL ESTATES IN BEAL PROPERTY. § 85. Of Freehold Estates in General. 86. Of Estates in Fee-Simple. 87. Of Estates in Fee-Tail. 88. Of Estates for Life. 89. Of the Creation of Estates for Life. 90. Of Estates Tail after Possibility of Issue Extinct. 91. Of Estates by Curtesy. 92. Of Estates in Dower. 93. Of the Incidents of Estates for Life. CHAPTER VI. OF PERSONAL ESTATES IN REAL PROPERTY. § 94. Of Estates for Years. 95. Of Estates at Will. 96. Of Estates from Year to Year. 97. Of Estates by Sufferance. CHAPTER Vn. OF THE TENURE OP ESTATES IN REAL PROPERTY. § 98. Of Feudal Tenures. 99. Of Tenures in the United States. TABLE OF CONTENTS. xix § 100. Of Absolute and Conditional Estates. 101. Of Express and Implied Conditions. 102. Of Piecedent and Subsequent Conditions. 103. Of Conditional Limitations. 104. Of the Transfer of Conditional Estates. CHAPTER Vni. OF THE TIME OF THE ENJOYMENT OF ESTATES IN REAL PROPEKTY. ) 105. Of the Enjoyment of Estates. 106. Of Estates in Expectancy. Reversions. Remainders. Executory Interests. 107. Of the Distinctions between Reversions, Remainders, and Executory Interests. 108. Of Estates in Reversion. 109. Of Vested Remainders. 110. Of Contingent Remainders. 111. Of the Alienation of Remainders. 112. Of Executory Interests. Rule against Perpetuities. « CHAPTER IX. OF THE NUMBER ANT) CONNEXION OF THE TENANTS IN ESTATES IN REAL PROPEKTY. § 113. Of Joint and Several Estates. 114. Of Estates in Severalty. 115. Of Estates in Joint-Tenancy. The Four Unities. 116. Of Estates in Joint-Tenancy. Survivorship. 117. Of tlie Incidents of Estates in Joint-Tenancy. 118. Of the Alienation of Estates in Joint-Tenancy. 119. Of the Destruction of Estates in Joint-Tenancy. 120. Of Estates in Common. 121. Of the Creation of Estates in Common. Coparcenary. 122. Of the Incidents and Destruction of Estates in Common. XX TABLE OF CONTENTS. CHAPTER X. OF THE TITLE TO ESTATES IN KEAL PROPERTY. § 123. Of Title. Title by Descent. Title by Purchase. 124. Of Consanguinity. 125. Of the Whole Blood and Half Blood. 126. Of the Kules of Descent. 127. Of Title by Purchase. 128. Of Title by Escheat. 129. Of Title by Accretion. Alluvion. Ayulsion. 130. Of Title by Abandonment. 131. Of Title by Forfeiture. 132. Of Title by Prescription. 133. Of Title by Possession. 134. Of Title by Marriage. 135. Of Title by Execution. 136. Of Title by Judicial Decree. 137. Of Title by Eminent Domain. 138. Of Title by Grant and Devise. 139. Of Title by Public Grant. 140. Of Title by Private Grant. Deeds. 141. Of Indentures and Deeds-Poll. 142. Of Original and Derivative Deeds. 143. Of Deeds in the United States. 144. Of the Parts of a Deed. 145. Of the Construction of Deeds. 146. Of the Execution of Deeds. 147. Of the Delivery of Deeds. 148. Of a Will of Lands. 149. Of the Revocation of Wills. 150. Of the Construction of Wills. 151. Of Devisable Estates. CHAPTER XI. OP ESTATES IN PERSONAL PROPERTY. § 152. Of Chattels. Chattels Real. Chattels Personal. 153. Of Chattels Personal. Choses iu Possession and in Ac- tion. TABLE or CONTENTS. xxi i 154. Of Estates iu Chattels Personal. 155. Of Qualified Estates in Chattels Personal. 156. Of the Tenure, Time, and Tenancy of Estates in Chattels Personal. CHAPTER XII. OP THE TITLE TO ESTATES IN PEBSOSTAL PROPERTY. § 157. Of Title by Prerogative. 158. Of Title by Forfeiture. 159. Of Title by Succession. 160. Of Title by Marriage. 161. Of Title by Judicial Decree. 162. Of Title by Occupancy. 163. Of Title by Accession and Confusion. 164. Of Title by Creation. 165. Of Title by Gift. 166. Of Title by Testanjient. 167. Of the Requisites of a Testament. 168. Of Title by Contract. 169. Of the Parties to a Contract. 170. Of the Consideration of Contracts. 171. Of the Subject-Matter of Contracts. 172. Of the " Meeting of the Minds." 173. Of Oral and Written Contracts. Statute of Frauds. 174. Of Express and Implied Contracts. 175. Of Executed and Executory Contracts. 176. Of the Validity and Construction of Contracts. 177. Of Contracts of Sale. 178. Of Contracts of Bailment. 179. Of Contracts of Agency. 180. Of Contracts of Partnership. 181. Of Contracts of Insurance. 182. Of Contracts of Indorsement. Bills and Notes. 183. Of Contracts of Guaranty and Suretyship. 184. Of Collateral Contracts. Debt. Warranty. xxii TABLE OF. CONTENTS. CHAPTER Xin. OF THE RIGHTS ARISING FROM THE RELATION OF HUSBAND AND WIFE. § 185. Of the Contract of Marriage. 186. Of the Parties, Consideration, and Subject-Matter of the Contract of Marriage. 187. Of the Form of the Contract of Marriage. 188. Of Divorce. 189. Of the Merger of the Legal Existence of the Wife in that of the Husband. 190. Of the Rights of the Husband over the AVife. 191. Of the Duties of the Husband toward the Wife. CHAPTER XIV. OF THE RIGHTS ARISING FROM THE RELATION OF PARENT AND CHILD. ) 192. Of Legitimate and Illegitimate Children. 193. Of the Rights of Parents over Legitimate Children. 194. Of the Duties of Parents toward Legitimate Children. 195. Of the Duties of Parents toward Illegitimate Children. 196. Of the Reciprocal Rights and Duties of Parents and their Adult Children. CHAPTER XV. OF THE RIGHTS ARISING FROM THE RELATION OF GUARDIAN AND WARD. § 197. Of Guardian and Ward. 198. Of Guardians by Nature. 199. Of Guardians by Appointment. 200. Of the Reciprocal Rights and Duties of Guardians and Wards. 201. Of the Management of the Ward's Estate by the Guar- dian. 202. Of the Cessation of the Relation of Guardian and Ward. TABLE OP CONTENTS. xxiil CHAPTER XVI. OP THE RIGHTS AEISIKG OUT OF THE EELATION OF MASTEK AND SEKVANT. § 203. Of Master and Servant. 204. Of Apprentices. 205. Of Hired Servants. 206. Of Menials. 207. Of Agents. 208. Of Factors and Brokers. 209. Of Auctioneers. 210. Of Attorneys in Fact. 211. Of Attorneys at Law. BOOK II. OF PRIVATE WRONGS. § 212. Of the Natui-e of a Private Wrong. CHAPTER I. OF WEONGS WHICH VIOLATE THE RIGHTS OF PERSONA!, SECURITY AND PEKSONAL LIBERTY. § 213. Of Menaces and Assaults. 214. Of Battery, Wounding, and Mayhem. 215. Of Nuisances to Health. 216. Of Libel. 217. Of Slander. 218. Of Malicious Prosecution. 219. Of False Imprisonment. CHAPTER IL ■ OP WRONGS WHICH VIOLATE THE EIGHT OP PRIVATE PROPERTY. §220. Of Disseisin. 221. Of Abatement, Intrusion, Discontinuance, and Deforce- ment. xxiv TABLE OF CONTENTS. %9.9.9.. Of Trespass Quare Clausum. 223. Of Nuisances to Property. 224. Of Waste. 225. Of Disturbance. 226. Of the Asportation and Detention of Choses in Posses- sion. 227. Of Injuries to Choses in Possession. 228. Of Breaches of Contract. 229. Of Fraud. 230. Of Conspiracy. CHAPTER III. OF ■WRONGS WHICH VIOLATE RELATIVE RIGHTS. 1 231. Of Wrongs Committed against Each Other by the Par- ties to a Relation. 232. Of Wrongs Committed by Third Persons against the Parties to a Relation. 233. Of the Abduction of a Wife. 234. Of Criminal Conversation. 235. Of the Battery of a Wife. 236. Of the Abduction of a Child. 237. Of the Abduction of a Ward. 238. Of Retainer. 239. Of the Battery of a Servant. 240. Of Seduction. 241. Of Wrongs against Persons in Loco Parentis. CHAPTER IV. OF LEGAL REMEDIES. § 242. Of the Nature of Legal Remedies. 243. Of Cases where the Law Refuses to Apply its Remedies. 244. Of Self-Defence. 245. Of Recaption. 246. Of Entry. 247. Of Abatement. TABLE OF CONTENTS. XXV §248. Of Distress. 249. Of Accord and Satisfaction. 250. Of Arbitration. 251. Of Retainer. 252. Of Remitter. 253. Of Actions at Law. 254. Of Real Actions. 255. Of Mixed Actions. Ejectment. 256. Of Personal Actions. 257. Of Trespass. 258. Of Trespass on the Case. 259. Of Trover. 260. Of Replevin. 261. Of Detinue. 262. Of Assumpsit. Implied Contracts. 263. Of Debt. 264. Of Covenant. 265. Of Account. 266. Of Scire Facias. 267. Of Foreign Attachment. 268. Of Mandamus. 269. Of Prohibition. 270. Of Quo Warranto. 271. Of Habeas Corpus. CHAPTER V. OF THE PROCEEDINGS IN AN ACTION AT LAW. § 272. Of the Courts of Law and Equity. 273. Of Judges, Clerks, Sheriffs, and Juries. 274. Of Causes and Parties. 275. Of Plaintiffs in Actions Ex Contractu, 276. Of Plaintiffs in Actions Ex Delicto. 277. Of Defendants in Actions Ex Contractu. 278. Of Defendants in Actions Ex Delicto. 279. Of the Nature, Kinds, and Service of Process. 280. Of the Return of Process. Appearance. 281. Of Pleadings. XX vi TABLE. OF CONTENTS. § 282. Of the Classes and Order of Pleadings. 283. Of Demurrer. Traverse. Confession and Avoidance. 284. Of the Jurisdiction of Courts. 285. Of Pleas to the Jurisdiction. 286. Of Pleas in Abatement. 287. Of the Declaration, Pleas in Bar, and Subsequent Plead- ings. 288. Of Code Pleading. 289. Of Issues and Trial. 290. Of the Jury. Challenges. 291. Of Direct and Circumstantial Evidence. 292. Of Material and Relevant Facts. 293. Of Facts Judicially Noticed. 294. Of Written and Oral Evidence. 295. Of Primary and Secondary Evidence. 296. Of Depositions. 297. Of Subpoenas. Subpoenas Duces Tecum. 298. Of the Competency of Witnesses. 299. Of Confidential Communications. 300. Of Hearsay Evidence. 301. Of the Examination of Witnesses. 302. Of the Burden of Proof. 303. Of Piesumptions. 304. Of the Charge of the Judge. 305. Of the Deliberations of the Jury. 306. Of the Verdict. 807. Of New Trials. 308. Of Arrest of Judgment. 309. Of Judgments. 310. Of Audita Querela. 311. Of AVrits of Error. 312. Of the Nature, Kinds, and Service of Executions. CHAPTER VI. OP EQUITABLE REMEDIES. § 313. Of Proliibitory and Mandatory Injunctions. 314. Of Temporai-y and Perpetual Injunctions. 315. Of Injunctions against Fraud. TABLE OF CONTENTS. Xxvii §316. Of Injunctions against Irreparable Injury to Property. 317. 0£ Injunctions against Injuries to Health and Comfort. 318. Of Injunctions against Injuries to Relative Kights. 319. Of the Specific Performance of Contracts. 320. Of the Rescission of Contracts. 321. Of the Correction of Mistakes. 322. Of the Interpretation of Contracts. 323. Of Relief against Fraud. 324. Of Account, Equitable Assignment, and Interpleader. 325. Of tlie Redemption and Foreclosure of Mortgages. 326. Of the Separate Maintenance and Separate Property of Married Women. 327. Of Receivers. 323. Of Trusts. 329. Of the Pei-petuation of Testimony. 330. Of Discovery. 331. Of Enforcing or Setting Aside Awards. 332. Of Enforcing Judgments at Law. 333. Of General Equitable Relief. CHAPTER VII. OF PK0CEEDI2JGS IN EQUITY. 334. Of Bills. 335. Of Process. 333. Of Appearance. 337. Of Domuners. 333. Of Pleas. 339. Of Answers. 3-10. Of Replication. Amendments. 3-11. Of Trial and Evidence. 3-12. Of Decrees. 313. Of Bills of Review. BOOK III. OF PUBLIC RIGHTS. § 344. Of the Nature of Public Rights. XXViii TABLE OF CONTENTS. CHAPTER I. OF THE NATUKE AND FUNCTIONS OF A STATE. § 345. Of the State. 346. Of the Formation of the United States. 347. Of the Dissolution of the State. 348! Of the Supreme Power of the People. 349. Of the Functions of the State. Government. 350. Of the Government of the United States. ' 351. Of the Legislative Function. 352. Of the Executive Function. 353. Of Subordinate Executive Officers. 354. Of the Judicial Function. The Supreme Court. 355. Of the Circuit Courts. 358. Of the District Courts. 357. Of the Courts of the Individual States. 358. Of the Exercise of Judicial Functions. 359. Of Officers De Jure and De Facto. CHAPTER II. OF STIBJECTS AND THEIR RELATIONS TO THE STATE. §360. Of Subjects. 361. Of Allegiance. 362. Of Native-Born Citizens. 363. Of Naturalized Citizens. 364. Of Naturalization. 365. Of Aliens. 866. Of Citizens of the Individual States. CHAPTER III. OP THE RIGHTS OF A STATE OVER ITS SUBJECTS. § 367. Of the Rights of States in General over their Siibjects. 368. Of the Rights of the United States over their Subjects. 369. Of Obedience to the State. 370. Of Military Service. TABLE OF CONTENTS. xxix § 371. Of Eminent Domain. 372. 01 Taxes. CHAPTER rv. OF THE EIGHTS OF THE SUBJECT IN OR AGAINST THE STATE. § 373. Of the Duties of States in General to their Subjects. 374. Of Protection aga,inst Wrongs from Co-Subjects. 375. Of Protection against Wrongs from the State. 376. Of Protection against Wrongs from Foreign States. 377. Of the Redress of Wrongs Committed by Co-Subjects. 378. Of the Redress of Wrongs Committed by the State. 379. Of the Redress of Wrongs Committed by Foreign States. 380. Of the Duties of the State toward Citizens and Aliens. 381. Of the Duties of the United States toward their Subjects. BOOK IV. OF PUBLIC WRONGS. § 382. Of Torts and Crimes. 383. Of the Legal Separation of Torts and Crimes. 384. Of the Definitions of Crime. CHAPTER I. OP THE ELEMENTS OP CRIME. § 385. Of Criminal Act and Criminal Intent. 386. Of Specific Intent. 387. Of Drunkenness as Affecting Intent. 388. Of Infancy as Affecting Intent. 389. Of Insanity as Affecting Intent. 390. Of Mistake as Affecting Intent. 391. Of Accident as Affecting Intent. 392. Of Necessity as Affecting Intent. 393. Of Compulsion as Affecting Intent. XXX TABLE OF CONTENTS. CHAPTER II. OF THE DEGREES OF CRIME. § 394. Of Treason. 395. Of Felony. 396. Of Common Law and Statute Felonies. 397. Of Misdemeanors. CHAFTER III. OF TREASON. § 393. Of tlie Nature of Treason. 399. Of Ancient Common Law Treasons. 400. Of Treason against tlie United States. Levying War. 401. Of Treason against tlie United States. Adhering to the Public Enemy. 402. Of Treason against an Individual State. 403. Of the Necessity of an Overt Act. 404. Of Alienage as Affecting Treason. 405. Of Misprision of Treason. CHAPTER IV. OF FELONIES AG.4.INST THE PERSONS OF INDIVIDUALS. § 406. Of Murder. The Person Killing. 407. Of Murder. The Person Killed. 408. Of Murder. The Act of Killing. 409. Of Murder. Justifiable and Excusable Killing. 410. Of Murder. Malice Express or Implied. Degrees. 411. Of the Presumption of Malice from the Unlawful Killing. 412. Of Manslaughter. 413. Of Voluntary Manslaughter. 414. Of Killing in Actual Combat. 415. Of Involuntary Manslaughter. 410. Of Rape. The Carnal Knowledge. 417. Of Rape. The Unlawful Carnal Knowledge. 418. Of Rape. The Want of Consent. Force. 419. Cf Rape. The Evidence of the Complainant. TABLE OF CONTENTS. xxxi CHAPTER V. or FELONIES AGAINST THE PKOPEKTY OP' INBIVIDUALS. § 420. Of Arson. The Burning. 421. Of Arson. The Unlawful Burning. 422. Of Arson. The House. 423. Of Arson. The Ownership of the House. 424. Of Burglaiy. The Breaking. 425. Of Burglary. The Entering. 426. Of Burglary. The House. 427. Of Burglary. The Ownership of the House. 428. Of Burglary. The Night Season. 429. Of Burglary. The Felonious Intent. 430. Of Larceny. The Taking and Carrying Away. 431. Of Larceny. The Property. 432. Of Larceny. The Ownership of the Property. 433. Of Larceny. The Felonious Intent. 434. Of Robbery. The Element of Larceny. 435. Of Robbeiy. The Person or Presence of the Owner. 436. Of Robbery. The Violence or Putting in Fear. CHAPTER VI. or MISDEMEANORS AND STATUTE FELONIES. § 437. Of Statute-Felonies. 438. Of the Classes of Misdemeanors and Statute-Felonies. 439. Of Perjury. 440. Of Bribery. 441. Of Escape. Prison-Breach. Rescue. 442. Of Receiving Stolen Goods. 443. Of Compounding Crime. 444. Of Falsifying Records. 445. Of Obstructing Process. 446. Of Barratry. 447. Of Maintenance. 448. Of Champerty. 449. Of Conspiracy. 450. Of Embracery. xxxii TABLE OF CONTENTS. 451. Of Official Negligence. 452. Of Oppression 453. Of Extortion. 454. ■Of Misprision of Felony. 455. Of Riot. Rout. Unlawful Assembly. 456. Of Carrying Arms. 457. Of Challenging. Duelling. 458. Of Affray. 459. Of Disturbing Meetings. 460. Of Forcible Entry and Detainer. 461. Of Libel. 462. Of Cheating. Embezzlement. False Pretences, 463. Of Nuisances to Health. 464. Of Bigamy. 465. Of Blasphemy. Profanity. 466. Of Public Nuisances. 467. Of Assault. Battery. Mayhem. 468. Of False Imprisonment. Kidnapping. 469. Of Forgery. 470. Of Malicious Mischief. 471. Of Piracy. 472. Of Attempts. 473. Of Solicitations. CHAPTER Vn. OF THE RELATION OF THE CRIMINAl ACTOK TO CRIMINAL ACT. ) 474. Of Principals and Accessories. 475. Of Principals in the First Degree. 476. Of Principals in the Second Degree. 477. Of Accessories before the Fact. 478. Of Accessories after the Fact. CHAPTER VIII. OF CRIMINAL PROCEDURE. § 479. Of the Successive Steps in Criminal Procedure. 480. Of Arrest with Warrant. TABLE OF CONTENTS. xxxiu 1 481. Of Arrest without Warrant. 482. Of Arrest by Hue and Cry. 483. Of the Act of Arrest. 484. Of Arrest on Requisition. Extradition. 485. Of the Return of the WaiTant, and Proceedings Thereon. 486. Of Commitment. 487. Of Bail. BaU-Piece. 488. Of Informations. 489. Of Indictments. Grand-Jury. 490. Of Presentments. 491. Of the Requisites of an Indictment. 492. Of the Description of the Accused. 493. Of the Description of the Venue. 494. Of the Description of the Date of the Criminal Act. 495. Of the Description of the Person or Property Injured. 496. Of the Description of the Criminal Act. Technical Words. 497. Of the Joinder of Counts. Duplicity. Repugnancy. Uncertainty. 498. Of the Joinder of Offenders and Offences. 499. Of Process. 500. Of Arraignment. Standing Mute. 501. Of Counsel. Guardian ad Litem. Motion to Quash. 502. Of the Plea of Guilty. 503. Of Pleas to the Jurisdiction. 504. Of Pleas in Abatement. 505. Of Demurrers. 506. Of the Plea of Former Conviction. 507. Of the Plea of Former Acquittal. 508. Of the Plea of Pardon. 509. Of the Plea of Not Guilty. 510. Of Trial. Petit-Jury. Challenges. 511. Of Evidence in Criminal Causes. 512. Of the Arguments of Counsel. 518. Of the Charge of the Judge. 514. Of the Deliberations of the Jury. The Verdict. 515. Of Motion for a New Trial. 516. Of Motion in Arrest of Judgment. 517. Of Judgment. xixiv TABLE OS CONTENTS. § 518. Of Writ of Error. 519. Of Pardon. 520. Of Execution. 521. Of Stay of Execution in. Capital Cases on Account of Pregnancy or Insanity. 522. Of Execution in Capital Cases. NOTE. By the word State (speUed with a capital) is rBeant one of the States of the American Union. Spelled otherwise, it refers to political societies or states in general. INTRODUCTION. § 1. Of Law in G-eneral. Law, in its widest sense, is a rule of action, prescribed by a superior and which the inferior is bound to obey. Law, in its technical sense, is a rule of civil conduct, prescribed by competent political authority, commanding certain things as necessary to, and forbidding other certain things as inconsistent with, the peace and order of society. Read 1 Bl. Comm., pp. 38-44. § 2. Of International and Municipal JLa-w. Law, in this latter sense, is of two kinds : International and Municipal. International law is that rule of civil conduct, which is prescribed by the common consent of Christian nations, and regulates their intercourse with one another. Municipal law is that rule of civil conduct, which is prescribed by the supreme power in a state, and regulates the intercourse of the state with its subjects and of those subjects with each other. Read 1 BI. Comm., pp. 44-58. 1 Kent Comm., Lect. i, pp. 1-4. '< Woolsey Int. Law, § 5. 1 2 INTRODUCTION. § 3. Of Federal and State Law. American municipal law is, as to its object, of two kinds : Federal and State. Federal law is that rule of civil conduct, which is prescribed by the supreme power in the United States, and i-egulates, in matters of a na- tional character, the intercourse of the federal government with the people, and of the people with each other or with citizens of foreign states. State law is that rule of civil conduct, which is prescribed by the supreme power in each individual State, and regulates, in all matters not of a national character, the intercourse of such State with its own people and of its people among themselves. Read Const. U. S., Art. i, See. 8, 10, Amend, ix, x. 1 Kent Comm., Lect. xi, p. 237, Lect. xviii, xix. Cooley Const. Lim., p. 2. § 4. Of TTn-written and Written La-w. American municipal law is, as to its origin, of two kinds: Unwritten and Written. Unwritten km (known also as customary law, or common law) is that rule of civil conduct, which originated in the common wisdom and ex- perience of society, in time became an established custom, and has finally received judicial sanction and affirmance in the decision of the courts of last resort. Written law is that rule of civil conduct, which has been prescribed directly, in so many words, by the supreme power of the state itself. Read 1 Bl. Comm., pp. 62-67, 85. Austin Jnr. , Lect xxviii, xxix, 1 Kent Comm., Lect. xxi, p. 472 Pomeroy Mun. Law, §§ 37-39. Walker Am. Law, §§ 17, 18. INTKODUCTION. 3 § 5. Of the Unwritten Law of the United States. The United States, as such, has no common, or un- written, law ; and when its courts are called upon to ad- minister the principles of that law, they are guided by it as it exists in the State where the cause arose. In Lou- isiana, the Eoman or Civil law is the source and depository of unwritten law. In the other States, the courts have assumed, or the legislatures or constitutions have declared, the written and unwritten law of England, as it existed at the Revolution, to be the common law of such States, so far as it was applicable to the situation of their people. Eead 1 Kent Comra., Lect. xxi, p. 473 and notes. Bishop First Book of Law, B. ii, ch. 6 and notes. 1 Abbott U. S. Prac, pp. 195-197. Wheaton v. Peters, 8 Pet., p. 591. Van Ness v. Paoard, 2 Pet., p. 137. Cooley Const. Lim., pp. 21-25. § 6. Of the Development of the Unwritten Law. Unwritten law is constantly' developing by the judicial recognition, as law, of customs hitherto unrecognized. That a custom may be so recognized it must be : (1) Imme- morial ; i. e. it must have existed for a sufficient period of time to have become established as a rule of action in that class of cases, of which it is henceforth to be regarded as the law; (2) Continued ; i. e. it must not have been al- ternated with antagonistic customs, but must have been constantly applied whenever any of this class of cases has arisen; (3) Peaceable; i. e. it must not have been sub- ject to contention or dispute, but have been acquiesced in bj' all the persons who were interested in such cases ; (4) Reasonable , i. e. it must not be opposed to any fundamen- tal principle of justice, nor, in its practical operation, be injurious to the public, or to that class of persons to whose 4 INTEODUCTION. conduct it relates ; (5) Certain; i. e. it must not, either in the rights which it confers or in the duties it imposes, be indefinite or open to conjecture, but must furnish, to all persons interested in such cases, a reliable and intelligible rule of action; (C) Compulsory; i.e. its observance must not have been optional with individuals, but it must have been regarded as obliging all those persons to whose ac- tions it pertains ; (7) Consistent with other customs; i. e. it must not contradict, or limit the observance of, any other judicially established custom by which this class of cases is already governed. Kead 1 Bl. Comm., pp. 75-79. Austin Jur., Lect. xxviii, xxix, xxx. 1 Root, Preface, pp. xi-xiii. Broom Comm. , pp. 9-20. § 7. Of Maxims, Definitions, and Judicial Decisions. Unwritten law has been expressed in maxims, defini- tions, and the judgments of the courts. A maxim is the short and formal statement of an established principle of law. More than two thousand of these maxims now exist, many of which are of great antiquity, and most of which are of the highest authority and value. A definition is an enumeration of the distinguishing characteristics of the act, the object, or the right defined. The principal defi- nitions of the common law are very ancient, and are regarded by the courts with great respect. A judicial deci- sion is either the recognition or affirmance of a rule of law, or the application of a known rule to a certain state of facts. In either case, it is the promulgation of a law ; the former being its simple statement as a rule ; the latter in- dicating its- practical scope and obligation. These maxims, definitions, and judicial decisions ai-e now contained in the INTEODUCTION. 5. treatises and digests of the common law, and in those re- ports of adjudged cases, which, beginning with the Year Boolce in the reign of Edward II, have been continued to the present day. Read 1 Bl. Coram., pp. 68-73. 1 Kent Comm., Lect. xxi, pp. 473-475, Leet. xsii, pp. 499-513. Pomeroy Mun. Law, §§ 911-917. Broom Leg. Max., Preface. § 8. Of the Written Law of the United States. The written law of the United States consists of the Fed- eral Constitution, the Acts of Congress, and the Trebles made by its authority. The written law of the individual Slate consists of its Constitution and its Statutes. Kead 1 Kent Comm., Lect. xx, pp. 447-454. Cooley Const. Lim., pp. 2-4, 12. Pomeroy Mun. Law, § 36. Walker Am. Law, § 17. § 9. Of Statutes. A statute is a rule of civil conduct, established and pro- mulgated by the legislature according to the forms pre- scribed by the Constitution. Unless otherwise provided, it takes effect from the date of its enactment. Kead 1 Kent Comm., Lect. xx, pp. 447-459. Cooley Const. Lim., pp. 130-132, 156-158. Potter's Dwarris on Stat., pp. 169-173. Sedgwick Stat, and Const. Law, pp. 81-84. § 10. Of Public and Private Statutes. Statutes, as to the objects to which they relate, are of two kinds : Public and Private. Public statutes are those 6 INTRODUCTION. which concern the government, or the public interest, or all persons, or the whole of anj' class of persons. Of all public statutes the courts of the same state take judicial 7iotice, and, in a suit at law, the party claiming under them is not obliged to plead or prove them. AU other statutes are private statutes, and, in a suit at law involving such statutes they must be both pleaded and proved. A statute, which is private in its nature, becomes a public statute in its effect, when so declared b^' the legislature. Kead 1 Bl. Comm., p. 86. 1 Kent Comm., Lect. xx, pp. 459, 460. Bac. Abr., Statute F, L. Potter's Dwan-is on Stat., pp. 52-57. Sedgwick Stat, and Const. Law, pp. 30-36. § 11. Of Declaratory and Remedial 'Statutes. Statutes, as to their purpose, are of two kinds : Declara- tory and Eemedial. Declaratory statutes are those which are intended to remove a doubt as to the existence or effect of some rule of the unwritten law. Remedial statutes are those which are intended to extend or to restrain the operation of some existing rule of the unwritten law, or to establish a new rule of law. Kead 1 BI. Comm., pp: 86, 87. Potter's Dwarris on Stat., pp. 68-73. Sedgwick Stat, and Const. Law, pp. 36-38. § 12. Of Affirmative and Negative Statutes. Statutes, as to their form, are of two kinds : Affirmative and Negative. Affirmative statutes are those which are ex- pressed in affirmative terms. Such statutes do not change or abrogate the rules of the unwritten law. Acts which would have been vaKd under the unwritten law, before INTllODUCTION. X the passage of such a statute, will be of the same legal effect if performed after its passage ; and the creation of a new right, by such a statute, does not modify the rights existing under the unwritten law. Negative statutes are those which, either by their words or by necessary implica- tion, express a negative. Against such statutes the rules of the unwritten law are of no force whatever. Read Bao. Abr., Statute G. Potter's Dwarris on Stat., pp. 68-72. Sedgwick Stat, and Const. Law, pp. 38-41. § 13. Of the Interpretation and Application of Law. In the interpretation and application of a rule of law, whether written or unwritten, attention is first paid to the words of which it is composed. These words are taken in their usual popular meaning unless they are terms of art, or technical terms, when they are understood according to their acceptation in the particular trade or science to which they belong. Where the meaning of any word or phrase is uncertain the context is consulted ; and if, in another part of the same rule of law, the same word or phrase occurs, the interpretation given to it in both places ought to be the same. In like manner, where the rule itself is doubtful, the whole body of the law upon that subject is to be con- sidered, and such construction given to the doubtful rule as brings it into harmony with other certain rules. The sub- ject-matter, to which the rule of law relates, is also a valu- able guide in exploring its significance. Every legislative power is presumed to have possessed a complete knowledge of the subject, concerning which it has prescribed a rule of law, and to have chosen its expressions with a constant reference thereto ; and, therefore, in interpreting this rule, the nature of this su))ject-matter must be equally regarded. 8 INTRODUCTION. The effects and consequences of a rule of law also aid in ascertaining its true meaning. Wlien, under one interpre- tation, these effects and consequences are absurd, unjust, or contrary to the public good, and, under another inter- pretation, such effects and consequences are reasonable and just, it is evident that the latter interpretation is alone correct. The reason and spirit of a rale of law, or the cause which moved the legislature to prescribe it, is an- other indication of its actual significance. Of every legisla- tive act intelligent purpose can be predicated, and the end contemplated by that act, and toward which it was directed bv the legislative power, must always be considered in determining the character of the act itself. Head 1 Bl. Comm., pp. 59-61. 1 Kent Comm., Lect. xx, pp. 462-465. § 14. Of the Interpretation of Statutes. In addition to these universal rules of legal interpreta- tion, there are certain special rules applicable to the inter- pretation of statutes, of which the following are the most important : Declaratory statutes are limited in meaning by the true meaning of that rule of the unwritten law which they declare. Remedial statutes are to be interpreted by ascertaining the condition of the unwritten law at the time of the enact- ment of the statute, the mischief against which the unwrit- ten law did not provide, and the remedy intended to be afforded by the statute ; and then giving to the statute that construction, which will most fully suppress the mischief and apply the remedj'. Statutes must be so interpreted as to be consistent with all constitutional provisions, and every statute, which can- not be so interpreted, is unconstitutional and void. INTRODUCTION. 9 Statutes, limiting the power of future legislatures, or commanding impossible things, are void. Statutes, which plainly contradict the unwritten law, supersede it, and, to that extent, render it invahd. Later statutes repeal prior statutes when plainly con- trary thereto, but, if such statutes can be reconciled, both must stand, and have concurrent operation. When a re- pealing statute is itself repealed, the old statute revives. Statutes which are in their nature contracts, and under which rights have become vested, cannot be so repealed as to divest such rights. Statutes, when reason and justice so require, may be interpreted in such a manner that acts within the letter shall be considered as without the meaning, and acts with- out the letter shall be considered as within the ineaning. Penal statutes are construed strictly in the interest of the accused, their effect being limited by the express words employed and not extended by implication. Statutes intended to prevent frauds are construed liber- ally, in order that the design thereof may be accomplished. Statutes, which treat of things or persons of an inferior rank, cannot, by any general words, be extended to those of a superior. Different statutes, relating to the same subject-matter, are regarded as one statute, and each must, if possible, be so construed that full effect will be given to all. One part of a statQte must be construed by another, so that, if possible, the whole may stand. A saving, or proviso, totally repugnant to the bodj' of a statute, is void. When a statute contains a word, whose meaning is alreadj' known to the unwritten law, the word has the same meaning in the statute. Where words in the same statute are clearly repugnant to each other, the last wiU supersede the first. 10 INTRODUCTION. Words whose meaning, as to one statute,, has been determined, are presumed to have the same meaning in all subsequent statutes, unless the contrary is expressed. General words, in one clause of a statute, may be lim- ited by particular words in a subsequfent clause of the same statute ; but when a particular thing has been granted or limited in one clause of a statute, it cannot be taken away or altered by any subsequent general words. In construing a doubtful statute the preamble and title of the statute may be considered. The construction of a statute may be affected by long continued practice. The contemporaneous exposition of a statute, by those living at the date of its enactment, is of high authority. When a statute, already existing in one state, is adopted into the written law of another state, the construction given to the statute, in the former state, is also adopted with it. In a statute, which is intended to impose a duty, the word may is interpreted as must. Kead 1 Bl. Comm., pp. 87-91. Bac. Abr., Statute I. 1 Swift Dig., pp. 11-13. Potter's Dwarris oa Stat., pp. 47-51,67,121-146, 174-264. Sedgwick Stat, and Const. Law, pp. 225-446- Cooley Const. Lim., p. 188. § 15. Of the Object of Law. Law protects rights and' redresses wrongs. The existence of a right, in one man, imposes upon every other man the duty to respect it ; and law protects rights by enforc- ing_ the performance of this duty. Every wi'ong is thus a violation of some duty ; and law redresses wrongs, either INTRODUCTION. 11 by directly punishing the wrong-doer, or by compelling him to make due satisfaction to the person wronged. Eead Austin Jur., Outl., p. 34, Lect. xiv, pp. 377-381, Lect. xvi, pp. 405-410. § 16. Of Rights and 'Wrongs. Eights, at law, are of two kinds : Private and Public. Private rights are those rights which belong to private persons, as such, and to public bodies when acting in a private capacity. Public rights are those which the ■ state possesses over its own subjects, and which the subjects, in their turn, possess in^ or against, the state. Wrongs, at law, are also of two kinds : Private and Public. Private wrongs (known also as torts) are those whereby the rights, which belong to private persons, as such, or to public bodies acting in a private capacity, are violated. Public wrongs (known also as crimes) are those by which the rights of the state over its people, or those of the people in, or against, the state, are either diminished or de- stroyed. Readl Bl. Comm., p. 122. 3B1. Comm., pp. 1-3. Austin Jur., Lect. xvii, pp. 416-418. Pomeroy Mun. Law, §§ 19-23. Walker Am. Law, § 16. § 17. Of Natural Persons. The persons, whose rights the law protects, and whose wi-ongs the law redresses, are of two kinds : Natural and Artificial. Natural persons are living human beings, of whatever age-, sex, or condition. The life of a human being begins, in contemplation of law, as soon as he is 12 INTRODUCTION. able to stir in his mother's womb, and ceases at the in- stant of physical death. Every legitimate unborn infant is regarded as born, for all beneficial purposes. He is entitled to legal protection, may have a guardian appointed for him, and may inherit land or take it under a will. Read 1 Bl. Coram., pp. 123, 130. Walker Am. Law, § 20. § 18. Of Artificial Persons. Corporations. Artificial persons (also called bodies-politic, or corpora- tions) are persons created hj law, for purposes which natural persons would be unable to accomplish. They consist of one or more natural persons ; but neither their corporate existence, nor their corporate individuality, de- pends upon the number, or the identity, of the natural persons of whom they are composed. As legal persons, they are invisible, intangible, and immortal ; and are endowed only with such attributes as are expresslj" con- ferred, or necessarily implied, by law. In other respects, their rights and duties resemble those of natural persons. Read 1 Bl. Coram., pp. 467-469, 472-476. 2 Kent Coram., Lect. xxxiii, pp. 267-269, 278, 299. Angell and Ames Corp., §§ 1-12. Potter Corp. , §§ 1-9. Dillon Mun. Corp., §18. Walker Am. Law, § 90. § 19. Of Aggregate and Sole Corporations. Corporations are, as to their membership, of two kinds : Aggregate and Sole. Aggregate corporations consist of two or more natural persons. Sole corporations consist of one INTEODUCTION. 13. natural person, acting in some offlcial capacity. Sole cor- porations are seldom found in the United States. Eead 1 Bl. Comm., pp. 469, 470. 2 Kent Comra., Lect. xxxiii, pp. 273, 274. Angell and Ames Corp. , §§ 26-29. Potter Corp., § 18. Walker Am. Law, § 92. § 20. Of Public and Private Corporations. Corporations are, as to their purposes, of two kinds : Public and Private. Public corporations are such as are created for political purposes, like counties, towns, and cities. They are invested with certain governmental pow- ers, to be exercised within their territorial limits, and also with the power to take and hold property for their corpo- rate use. Private corporations are such as are created for the private benefit of the collective members of the cor- poration, and are designed to regulate and promote their religious, social, or financial interests. Kead 2 Kent Comm., Lect. xxxiii, pp. 275, 273. Angell and Ames Corp., §§ 30-35. Potter Corp., §§ 15-17. Dillon Mun. Corp., §§ 52-56. Walker Am. Law, § 92. § 21. Of Equity. Besides the written and unwritten law, properly so called, there are other rules of civil conduct, which are practicallj- applied, by certain courts, to the enforcement of rights and the redress of wrongs. The most important of these is that system of rules known as Equity. Equity is in- tended to supplj' the defects, and correct the evils, created 14 INTRODUCTION. by the universality and inflexibility of the rules of law. It is administered by courts of Chancery, which proceed according to their own peculiar methods, and which ad- minister justice in certain cases where there is no strictly- legal right, or where courts of law cannot afford to the in- jirred partj' an adequate relief. The jurisdiction of these courts is very extensive, and their practical value rivals that of courts of law. Kead 1 Bl. Comm., pp. 61, 92. 3 Bl. Comm., pp. 429-437. Pomeroy Mun. Law, §§ 163-167. Stoi-y Eq. Jur., §§ 1-57. Walker Am. Law, § 18. § 22. Of Maritime Law. Maritime law is that system of rules which governs ac- tions performed upon, or relating to, the sea. These rules are very ancient, and of world-wide application, and are practically apjjlied by courts of admiralty. Read 3 Bl. Comm., pp. 106-109. 3 Kent Coram., Lect. xlii, pp. 1-21. Pomeroy Mun. Law, §§ 172, 173. 1 Pars. Mar. Law, B. i, Ch. i. ELEMENTARY LAW. BOOK I. OP PRIVATE RIGHTS. § 23. Of Absolute Rights. Private rights are of two kinds : Absolute and Relative. Absolute rights are those which belong to man, as man, whether out of societj' or in it. They are natural, inher- ent, and inalienable. They are neither created by, nor de- pendent upon, the provisions of positive law, though the principal object of all law is to preserve and vindicate them. They are three in number : The Right of Personal Security ; The Right of Personal Liberty ; The Right of Private Property. Read 1 Bl. Comm., pp. 123-129. 1 Kent Comm., Lect. xxiv, pp. 1-12. Pomeroy Mun. Law, §§ 626-633. § 24. Of Relative Rights. Relative rights are those which belong to man as a mem- ber of society, and as occupying certain relations toward other men. Some of these rights are natural and inher- ent ; others depend for their existence, as well as for their protection, on the rules of law. They are four in number, arising out of these four relations : Husband and Wife ; Parent and Child : Guardian and Ward ; Master and Servant. Read 1 Bl. Comm., pp. 123, 422. 2 Kent Comm , Lect. xxv, p. 39. 16 ELEMENTAET LAW. CHAPTER I. OF THE EIGHT OF PERSONAL SECUEITT. § 25. Of Life. The right of personal security is that right which every man has to the legal and uninterrupted enjpyment of his life, limbs, body, health, and reputation. Everj' human being, even an unborn infant, has a legal right to Uve, and to enjoy his life, without interruption or disturbance from his fellow-men. Any invasion of this right constitutes the gravest wrong known to the law, and merits and receives the severest punishment. Read 1 Bl. Comm., pp. 129, 13a. 4 Bl. Comm., p. 177. § 26. Of the Limbs. The limbs are those members of the human bodj' which are useful in fight ; as the hands, ej'es, and front teeth. Of such value are these members esteemed in law, that a man may defend his limbs, as well as his life, by kill- ing his assailant ; and the mutilation of these members was punishable, at common law, with death. A conti-act, entered into under a reasonable fear of injury to life or limb, is invalid, and may be avoided by the contracting partj-, at his pleasure. Bead 1 Bl. Comm., pp. 130, 131. 4 Bl. Comm., pp. 205-208. Bac. Abr., Duress, Maihem. 1 Pars. Cont., B. i, Ch. xix. See. 4. EIGHT OF PERSONAL SECURITY. 17. § 27. Of the Body. The body includes all portions of the human body except the limbs. Although the law protects this against injurj-, yet it is not regarded as so sacred or important as either life or limb. In defence of his body merelj-, a man can- not legally take life, nor are contracts, entered into under fear of injury to the body, void, f?'^ Read 1 Bl. Comm., pp. 131, 134. Bac. Abr., Assault, Duress. 1 Pars. Cont., B. i, Ch. xix. Sec. 4. § 28. Of Health. Health consists in freedom from phj'sical pain, discom- fort, and weakness. The enjoyment of health is essentia] to the true enjoj'ment of life, and the law, therefore, pro- tects it against injuries, both from the actions and omis- sions of other men. Read 1 BI. Comm., p. 134. 3 Bl. Comm., p. 122. 4 Bl. Comm., pp. 161, 162. 1 Hill. Torts, Ch. six, § 6. § 29. Of Reputation. The reputation of a man is that favorable opinion, which other men entertain concerning his character or capabili- ties. To this opinion everj'man has a legal right, until by his own misconduct he has forfeited it ; and any violation of this right is regarded and treated by the law as a griev- ous wrong. Eeadl Bl. Comm., p. 134. 1 Kent Comm., Lect. xxiv, pp. 16-19. Cooley Torts, pp. 30-33. 2 18 ELEMENTARY LAW. § 30. Of the Rights of the State over the Person of the Subject. The enjoyment of life, limbs, body, health, and reputa- tion are, however, subordinate to the ruks of law. Individ- ual rights yield to public necessity ; and whenever the preservation of political society demands the surrender of any of these rights, either as a punishment for crime or as essential to the public safetj', the individual must suffer in order that the state may be preserved. The mode of their enjoyment by one individual must also, to some ex- tent, be limited by the same rules, in order to secure to other individuals their proper exercise of the same rights ; since, in societj', the law can in no other way protect the rights of all than by impartially restricting them, whenever they conflict with one another. Read 1 Bl. Comm., p. 123-129. 4 Bl. Comm., pp. 7-14, 178-182. 1 Kent Comm., Lect. xxiv, pp. 12-26. Broom Leg. Max., pp. 1-10. Cooley Const. Lim., pp. 414-465. § 31. Of the Methods by vrhich the Law Protects Life, Limbs, and Body. TTie law protects life, limbs, and body: (1) By giving to every man the right of self-defence; (2) By securing, through its general provisions, such peace and order in society that injuries to them are not likely to occur; (3) Hj punishing actual or attempted injuries to them as crim- inal offences; (4) By giving, to the injured person, com- pensation for his injury, to be recovered from his injurer in a suit at law; (5) By compelling private persons, when necessary, to support those who stand in certain rela- tions to them ; (6) By making public provision for the des- KIGHT OF PERSONAL SECURITY. 19. titute ; (7) Bj' special enactments, prohibiting monopolies and protecting trade and labor. Read 1 Bl. Comm., pp. 131, 359-365, 447-449. 3 Bl. Comm., pp. 3, 4, 120-122. 4 Bl. Comm., pp. 154, 158-161, 184-188, 205-218. 1 Kent Comm., Lect. xxiv, pp. 12-26. Pomeroy Mun. Law, §§ 634-640. § 32. Of the Methods by which the Law Protects Health. The law protects health: (1) Bj' giving to the party, whose health is endangered, the right to remove the cause of danger, whenever this can be done without disturbing the public peace ; (2) Bj' punishing, as criminal offences, those actions or omissions which endanger health ; (3) By giving compensation to the injured person in a suit at law ; (4) By compelling the person, in whose actions or omissions the cause of danger has originated, to remove it. Read 3 Bl. Comm., pp. 5, 122, 123. 4 Bl. Comm., pp. 161, 162. 1 Hill. Torts, Oh. xix, § 6. 2 Story Eq. Jur., § 926. § 33. Of the Methods by which the Law Protects Repu- tation. The law protects reputation : (1) By presuming that the character of every man is good until the contrary is proved ; (2) By punishing the more serious attacks upon it as criminal offences; (3) By giving compensation to the in- jured person in a suit at law. Read 3 Bl. Comm., pp. 123-127. 4B1. Comm., pp. 150, 151. 1 Kent Comm., Lect. xxiv, pp. 16, 17. Bac. Abr., Libel, Slander. Pomeroy Mun. Law, §§ 641-645. 1 Greenl. Ev., §§ 34, 35. 8 Greenl. Ev., § 29. 20 ELEMENTARY LAW. CHAPTER II. OF THE EIGHT OF PEESONAL LIBEETT. § 34. Of Freedom and Imprisonment. The right of personal liberty is the right which every man has to move his person to whatever place his inclinations may direct, without restraint except by due course of law. This right to move includes the right to remain at rest ; and whenever, by any force or show of force, a man is compelled either to go or to stay, against his will, his per- sonal liberty is violated and he is said to undergo im- prisonment. The place where, the method by which, and the length of time for which, such restraint is applied, are immaterial. In any case, it constitutes an imprisonment ; and, unless effected in the lawful enforcement of some legal right, is a gross invasion of his liberty and is severely punished by the law. Against improper interference with his liberty a man may use all necessary force, and any obligation entered into by him, while thus unlawfully re- strained and as a condition of his deliverance therefrom, is of no validitj' against him. Read 1 Bl. Comm., pp. 134-138. 3B1. Comm., pp. 127,128. 1 Kent Comm., Lect. sxiv, p. 26. Bac. Abr., Duress, Trespass D, 3. 1 Hill. Torts, Ch. vi, §§ 1-2 a. Bigelow L. C. Torts, pp. 272-275. § 35. Of the Rights of the State over the Liberty of the Subject. In the enjoj'ment of his personal liberty, as well as in that of his personal security, the citizen is limited by the rules EIGHT OF PERSONAL LIBERTY. 21. of law. By various foiins of legal process he is liable to be restrained, not only as defendant in a civil suit or crim- inal proceeding, but as a juror, or a witness, or a member of a legislative body. He may be compelled to serve in the armj' or the navy of the United States, or in the militia, or the posse comitatus of the individual State. In all these cases the legal provisions, governing such restraint, must be strictly followed by the authority by whom it is applied, or the imprisonment will be unlawful, and all participators therein will be liable to punishment. Kead 1 Bl. Coram., pp. 135, 136, 343, 408-421. 3 Bl. Coram., pp. 287-290, 354, 369. Broom Leg. Max., pp. 1, 2. Const. U. S., Art. i. Sec. 8. Bao. Abr. , Trespass D, 3 Gushing Leg. Assemb., pp. 101-103. Pomeroy Mun. Law, §§ 647-652. § 36. Of the Methods by which the Law Protects Personal Liberty. 7%e law protects the right of personal liberty: (1) By giving to every man the right to free himself whenever unlawful^ confined ; (2) By regulating legal imprisonment with great exactness ; (3) By delivering the person, who has been illegally confined, through the judicial proceeding known as the Writ of Habeas Corpus; (4) By punishing violations of this right as criminal offences; (5) By giving compensation to the injured party in a suit at law. Kead 1 Bl. Coram., pp. 135-138. 3 Bl. Comm., pp. 128-138. 4B1. Coram., pp. 218, 219. 1 Kent Comra., Lect. xxiv, pp. 26-34. Pomeroy Mun. Law, §§ 653-658. Cooley Const. Lim., pp. 295-350. Bigelow L. C. Torts, pp. 268-585. Hurd Hab. Corp., B. i. ELEMENTARY LAW. CHAPTER III. OF THE RIGHT OF PRIVATE FEOPERTY. § 37. Of the Eight of Property. The right of private property is the right which every man has to use and dispose of all his own propertj-, subject to no control save that of the law. To the protection of this right, and the redress of the wrongs by which it is violated, the law devotes by far the greater share of its attention. The rules, which govern the two preceding rights, are clear and few in number ; the wrongs against them are in- frequent ; and the remedies are simple and easily applied. The rules, which govern the right of private property, are, on the contrary, numerous and diflScult ; the right itself is constantly invaded ; and the methods of redress are mani- fold and intricate. Kead 1 Bl. Comm., pp. 138-140. 2 Bl. Comm., pp. 1-15. 2 Kent Comm., Leet. xxxiv, pp. 317-340. Pomeroy Mun. Law, §§ 669-672. § 38. Of Property in General. Property includes whatever can be exclusively possessed or enjoyed. Certain material objects, such as the ocean, light or air when unconfined, and the forces of nature, cannot be thus exclusively enjoyed, and, therefore, are not property. With a few such exceptions everything that EIGHT OF PRIVATE PROPERTY. 23. exists, whether phj-sically tangible or not, can be subjected to the ownership of man, and, while so subjected, is pro- tected by the law as private property. Read 2 Bl. Comm., pp. 14, 15. 1 Kent Comm., Lect. ii, pp. 26-29. Pomeroy Mun. Law, §§ 544, 779. Cooley Const. Lim., pp. 590-592. "Walker Am. Law, § 21. § 39. Of Corporeal Property. Property, as to its intrinsic character, is of two kinds ; Corporeal and Incorporeal. Corporeal property is that which has a substantive existence. It includes lands, buildings, animals, and all other material objects, which are capable of being owned by man. It can be physically' possessed and enjo3'ed, and can be transferred from one man to another by the act known as delivery. Read 2 Bl. Comm., p. 17. 1 Cruise Dig., Tit. i, § 2. Will. R. P., pp. 11, 12. 1 Wash. R. P., B. i, Ch. i, §§ 35-39. § 40. Of Incorporeal Property. Incorporeal property is that which has no substantive ex- istence, but exists merely in contemplation of law. It in- cludes all rights to corporeal property, or to the use of such propei-ty. It cannot be physically possessed, although its enjoyment ms.y consist in the performance of phj'sical acts, or may result in the phj'sical possession of corporeal prop- erty. It can be transferred from one man to another only by an agreement, or something equivalent thereto, in pur- 24 ELEMENTARY LAW. suance of which the former owner ceases, and the present one begins, to exercise the right and. to receive its benefits. Read 2 Bl. Comm., pp. 17, 20, 21, 317. 1 Cruise Dig., Tit. i, §10. 4 Cruise Dig., Tit. xxxii, Ch. iv, §§ 89, 40, 43. 3 Kent Comm., Lect. lii, pp. 402, 403. Will. R. P., pp. 11, 12, 220, 221. 1 Wash. K. P., B. i, Ch. i, §§ 37-40. § 41. Of Real Property. Property, as to its legal character, is of two kinds ; Eeal and Personal. Heal property is that which, in contemplation of law, is immovable. It is so called because, anciently, the owner of it, when dispossessed, could recover, in a suit at law, the possession of the real thing itself. It is said to consist in lands, tenements, and hereditaments. Hereditament is a general term, including everything that can be inherited ; that is, everything which will vest in the heir, by operation of law, upon the death of 'the ances- tor. Tenement is a term of more limited signification, including such hereditaments as, under the feudal law, can be holden of some superior lord. Land is a term of still narrower meaning, including only such tenements as are corporeal. Eeal property thus embraces not only land, and all objects which, in contemplation of law, are immovably attached to land, but also all those rights, the period of whose duration is unascertainable, and which the law, therefore, regards as permanent and without end. Read 2 Bl. Comm., pp. 16, 17. 1 Cruise Dig., Tit. i, § 1. 4 Cruise Dig., Tit. xxxii, Ch. xx, §§ 54, 55. 3 Kent Comm. , Lect. lii, p. 401. Will. R. P., pp. 1-10. 1 Wash. R. P., B. i, Ch. i, §§ 2, 8, 36. Walker Am. Law, § 21. RIGHT OF PRIVATE PROPERTY. 25. § 42. Of Personal Property. Personal property is that which, in contemplation of law, is movable. It is so called because, anciently, the owner of it, when dispossessed, could not recover the possession of the real thing itself, but could only recover damages, to be enforced against the person of the dispossessor. The reason of this name has long since disappeared ; , movable propert}', as well as immovable, being generally now re- coverable in specie, when it can be found. Personal prop- erty is also known as chattels. It includes every object which, in contemplation of law, is not immovably attached to land, and all those rights whose period of duration is fixed or ascertainable, and which the law, therefore, regards as movable and transitorj^ Eead 2 Bl. Comm., pp. 384-387. 2 Kent Comm., Leet. xxxv, pp. 340-342. Will. R. P., pp. 6-9. § 43. Of Fixtures. The legal character of propertj' is liable to change with- out any change in its intrinsic character. An object which, considered in itself, is personal, may enter into such rela- tions with real property as to become also real ; and objects, in their nature real, may by severance from the realty become personal. Trees growing on the land are real ; when cut, and Ij'ing in logs on the land, are personal. The materials, of which a house is to be built, are personal ; but, when constructed into a building, may become real. These changes in the legal character of property give rise to many serious and difHcult questions, the rules governing which are usually known as the law of fixtures. Eead 2 Kent Comm., Lect. xxxv, pp. 343-347. Will. K. P., p. 8 note. 1 Wash. E. P., B. i, Ch. i, §§ 4-32. Elwes V. Ma we, 2 Smith L. C, p. 99. 26 ELEMENTAEY LAW. § 44. Of Corporeal Real Property. Land. Corporeal real properfy is land. Land embraces not only the surface of the earth and everything that grows upon it, or is, in law, permanently attached to it, but everj'thing that lies beneath it, or is included in the space abore it. "Water in marshes, ponds or streams ; woods, rocks, and buildings ; metals within their native beds ; the atmosphere that rests above the surface, are land : and, by a deed of land, all objects of this character will pass without specific mention. The owner of land is thus truly said to own from the centre of the earth to the highest heavens ; and no other person can lawfully, without his consent, appro- priate any portion of the space above the surface, or of the minerals below it. Kead 2 Bl. Comm., pp. 17-19. 1 Cruise Dig., Tit. i, §§ 3, 6-9. 3 Kent Comm., Lect. lii, p. 401. Will. K. P., pp. 13-15. 1 Wash. R. P., B. i, Ch. i, § 3. 3 Wash. E. P., B. iii, Ch. v. Sec. 4, § 31. § 45. Of Incorporeal Real Property; Incorporeal Here- ditaments. Incorporeal real property embraces all those permanent rights which concern, or are annexed to, or are exercis- ible within, or result in the enjoj'ment of, corporeal prop- erty. As these rights pass by descent, from ancestor to heir, they are called incorporeal hereditaments. The princi- pal ones, known to ancient English law, were : (1) Ad- vowsons ; (2) Tithes ; (3) Commons ; (4) Waj-s ; (5) Of- fices ; (6) Dignities; (7) Franchises; (8) Corodies or Pensions ; (9) Annuities ; (10) Eents. Eead 2 Bl. Comm., pp. 20, 21. 3 Cruise Dig., Tit, xxi, Ch. i, §§ 2, 3. 2 Wash. R. P., B. ii, Ch. i, Sec. 1, §§ 1, 2. EIGHT OF PRIVATE PROPERTY. 27. § 46. Of Advowsons. An advowson is the right of presentation to a benefice. A benefice is the right to perform ecclesiastical functions in a parish, and to receive the emoluments derived therefrom. To present to a benefice is to appoint the clerg3'man, who is to dischai'ge these duties and enjoy these privileges. This right of presentation usually subsists in the owner of the estate, in which such parish is comprised, or in some other patron whose appointment, when confirmed bj' the ecclesiastical authority, vests the benefice in the appointee. As a method of providing for the friends or dependants of the patron, it was once a right of considerable value. Kead 2 Bl. Comm., pp. 21-24. 3 Cruise Dig., Tit. xxi. § 47. Of Tithes. A tithe is the right, which the incumbent of a benefice has, to one tenth part of the yearly increase of his parish- ioners, whether derived from lands, or from the stock upon lands, or from their personal industry. Kead 2 Bl. Comm., pp. 24-32. 3 Cruise Dig., Tit. xxii. § 48. Of Common. A common is the right of one man to take a profit from the land of another. It is of various kinds ; such as com- mon of pasture, or the right to pasture cattle in another's field ; common of piscary, or the right to catch fish in waters on the land of another ; common of turlary, or the right to cut turf on the land of another, similar to which is the right to take stone, coal, or minerals from common land ; 28 ELEMENTARY LAW. common of estovers, or the right to take wood from the land of another for fuel, or for the repair of fences, buildings, or agiicultural implements. Kead 2 Bl. Comm., pp. 32-35. 8 Cruise Dig., Tit. xxiii. 3 Kent Comm., Lect. lii, pp. 403-419. § 49. Of Ways. A way is the right of one man to pass and repass over the land of another, by some accustomed or designated path. This right may be general, empowering its owner to cross the land of the other party in any manner and with any vehicles he pleases, or it may be restricted both in the method and extent of its enjoyment. Kead 2 Bl. Comm., pp. 35, 36. 3 Cruise Dig., Tit. xxiv. 3 Kent Comm., Lect. lii, pp. 419-427. 2 Wash. R. P., B. ii, Ch. i, Sec. 3, §§ 30-34. § 50. Of Offices. An office is the right to perform certain official acts, and to receive the fees and emoluments accruing therefrom. This right, even in some cases where the duties were of a public nature, could formerlj', under the laws of England, be granted to a man and his heirs, and be held by them as inheritable property. Read2Bl. Comm., p. 36. 3 Cruise Dig., Tit. xxv. 3 Kent Comm. , Lect. lii, pp. 454r458. § 51. Of Dignities. A dignity is the right to use and enjoy a title of honor. Originallj'. such titles were annexed to the possession, of EIGHT OF PRIVATE PROPEETY. 29 estates in lands, were created by a grant of such estates, and by the descent of those estates were transmitted to the heirs of the grantee. Read 1 Bl. Comm., pp. 396-401. 2 Bl. Comm., p. 37. 3 Cruise Dig. , Tit. xxvi. § 52. Of Franchises. A franchise is the right of a subject to exercise certain powers, and to enjoj' certain privileges, which naturally be- long to the state. In England franchises were formerly very numerous, and were conferred by royal charter, but in this country they are comparatively' few, and are created by legislative grant. The right pf natural persons to be a corporation, the right to operate a public ferrj' and collect toU, are instances of this hereditament. Eead 2 Bl. Comm., pp. 37-40. 3 Cruise Dig. , Tit. xxvii. 3 Kent Comm., Lect. lii, pp. 458-460. 2 Wash. R. P., B. ii, Ch. i. Sec. 2. § S3. Of Corodies and Pensions. A corody is the right of one person to receive sustenance from another on account of the ownership, by that other, of some corporeal hereditament. When a stipend in monej' is paid instead of such sustenance, the right to receive the same is called a pension. This right usually subsisted only between persons who were ecclesiastically related to each other. Read 1 Bl. Comm., p. 283. 2 Bl. Comm., p. 40. 30 ELEMENTARY LAW. § 54. Of Annuities. An annuity is the right of one person to receive a j-early stipend in money from another, on account of some pei«onal obligation assumed by, or imposed upon, that other. When such an annuity is granted to a man and his heirs, it is an incorporeal hereditament. Kead 2 Bl. Comm., p. 40. 3 Kent Comm., Lect. lii, p. 460. § 55. Of Rents. A rent is the right of one man to receive a certain yearly profit out of the corporeal real property of another. The profit received maj' be in money or in the product of the corporeal propertj', but it must be certain in amount, be payable at yearlj' periods or at aliquot parts of a year, and be distinct in its nature from the corjjoreal real prop- erty out of which it issues. Kead 2 Bl. Comm., pp. 41-43. 3 Cruise Dig., Tit. xxviii. 3 Kent Coram., Lect. lii, pp. 460-485. 2 Wash. K. P., B. ii, Ch. i, Sec. 1, §§ 8-20. § 56. Of Incorporeal Hereditaments in the United States. Of these ten incorporeal hereditaments, only commons, ways, franchises, and rents are now of any practical im- portance iu the United States. Read 3 Kent Comm., Lect. lii, p. 403. AValker Am. Law, § 125. § 57. Of Easements of Support, Water, Light, Air, Party- Walls, Wharves, &o. Besides the foregoing permanent rights there are sev- eral others, now equally well recognized by law. Among RIGHT OF PRIVATE PROPERTY. 31. these are the right of every owner of land to have the soil supported In Its natural position by the land of adjoining or subjacent owners ; the right of one man to draw water from, through, or across the land of another ; the right of the owner of land to receive light and air uninterruptedly across the land of another ; the right of persons owning adjoining buildings to the lateral support of each building by the other ; the right which each of the owners of two build- ings, separated from each other only by a common ov party- wall, has in the entire separating wall ; the right of the owners of different stories, in the same house, to the support afforded by the stories below, and to the protection derived from the stories above ; and the right of persons, who own land upon the shore of the sea or upon navigable rivers, to build piers and wharves, provided thej- do not thereby obstruct navigation. Eead 3 Kent Comm., Lect. Hi, pp. 427-432, 436-449. 2 Wash. R. P., B. ii, Ch. i, Sec. 3. Walker Am. Law, §§ 126, 127. § 58. Of Corporeal Personal Property. Corporeal personal property embraces all those objects, whether animate or inanimate, which, in contemplation of law, are movable. Eead 2 Bl. Coram., pp. 387, 388." "2 Kent Coram., Lect. xxxv, pp. 340, 342. § 59. Of Incorporeal Personal Property. Incorporeal personal property includes all transitor}- rights, whether relating to real or personal property. It embraces those interests in real property, whose duration is fixed or ascertainable ; all transient rights in or concern- ing corporeal personal property ; all rights to the labor and 32 ELEMENTARY LAW. services of others ; and all rights to demand and receive payment of money, whether arising out of simple prom- ises or any other form of obligation. Read 2 Bl. Comm., pp. 386, 387, 397. 2 Kent Comm., Lect. xxxv, p. 351. Will. R. P., p. 357. § 60. Of Estates. The law distinguishes between the property itself and the interest which the owner has therein. This interest is known as an estate ; and, when complete, it consists of the right of property, the right of possession, and actual pos- session. The right of property maj^, however, vest in one person, the right of possession in another, and actual possession in stUl another. Several incomplete estates may also concurrently exist in the same property ; the owner of each estate having the right of property appropriate thereto, and such rights of possession, and such actual possession, as are consistent with the legal character and attributes of the co-existing estates. The different inter- ests of a landlord and his tenant in the same corporeal real property, or of the owner and the hirer of corporeal personal propertjr are instances of such concurrent estates. Read 2 Bl. Comm., pp. 103, 107, 195-199. 1 Cruise Dig., Tit. i, §§ 11, 49. 3 Cruise Dig., Tit. sxix, Ch. i. ' 4 Kent Comm., Lect. Ixv, p. 373. Will. R. P., pp. 16, 17. 1 Wash. R. P., B. i, Ch. iii. §§ 1-8. § 61. Of the Ownership and Transfer of Estates. An estate may belong to one person, or to several per^ sons collectively. It may also be transmitted from one person to another, or lesser estates may be carved out of EIGHT OF PRIVATE PEOPERTY. 3S it by the owner and be granted to others. The rela- tion between co-owners or successive owners of the same estate, or between persons one of whom derives his estate from the other, is known as privity of estate. Kead 2 Bl. Comm., pp. 107, 179, 200, 201. 1 Wash. E. P., B. i, Ch. xiil, Sec. 1, § 1. 2 Wash. R. P., B. ii, Ch. i, Sec. 1, § 16. 1 Greenl. Ev., §§ 189, 523. § 62. Of Real and Personal Xlstatea. Estates, like property, are, in their legal character, of two kinds : Real and Personal. A real estate is one which, in contemplation of law, is permanent and without ©nd ; and every estate is such when the date of its terniiination is not determined by, or ascertainable from or at the date of, the act which creates it. A personal estate js one which, in contemplation of law, is not permanent and without end ; that is, when the date of its termination is determined by, or ascertainable from or at the time of, the act which creates it. Kead 2 Bl. Comm., p. 386. 1 CiTiise Dig., Tit. i, §§ 12-15; Tit. viii, Ch. i, §§ 25, 26. 2 Kent Coram., Lect. xxsv, p. 312. "Will. R. P-, pp. 8, 9. 1 Wash. R. P., B. i, Ch. iii, §§ 9-11. § 63. Of Legal and Equitable Estates. The law also distinguishes between an estate in property and the benefits to be derived from the ownership of such estate. One man may have the right of property, the right of possession, and the actual possession, of real or personal property, while another man is entitled to all the results which flow from the enjoyment of these rights. In 8 34 ELEMENTARY LAW. such cases, the estate of the former is the only one recog- nized in courts of law, and hence is called the legal estate. The owner of the beneficial interest can, however, in a court of equity, compel the former to account to him for all the profits accruing from the property ; and his interest is, therefore, known as the equitable estate. Read 2 Bl. Comm., pp. 272, 327-329, 337. 1 Cruise Dig., Tit. xi, Ch. i, § 2 ; Tit. xii", Ch. i, §§ 1, 3. Shep. Touchstone, Ch. xxiv, §§ 1-3. 4 Kent Comm., Lect. Ixi, pp. 289-298, 801-305. 1 Wash. R. P., B. i, Ch. i, § 42. 2 Wash. R. P., B. ii, Ch. ii, Sec. 1, §§ 5, 6 ; Ch. iii, Sec. 1, §§ 5, 6. ESTATES JN EEAL PEOPERTY. 35. CHAPTEE IV. OF ESTATES IN KEAL PEOPERTT. § 64. Of the Attributes of Estates In Real Property. Estates in real property present five points for consider- ation : (1) The legal character of the estate itself ; (2) The tenure by which such estate may be holden ; (3) The time when such estate is to begin to be enjoyed ; (4) The relations with other men into which the ownership of the estate brings the owner thereof; (5) The title by which such estate may be acquired. Read2Bl. Comm.,,p. 103. 1 Cruise Dig., Tit. i, § 11. § 65. Of Real and Personal Estates in Real Property. Estates in real property are of two kinds : Real and Per- sonal. A real estate in real property is such an interest therein as, in contemplation of law, is permanent and without end. A personal estate in real property is such an interest therein as, in contemplation of law, is not per- manent and without end. Read2 BI. Comm., pp. 103, 386. 1 Cruise Dig., Tit. i, §§ 12-14; Tit. viii, Ch. i, §§ 25, 26. 2 Kent Comm., Lect. xxxv, p. 342. Will. R. P., pp. 8, 9. 1 Wash. R. P., B. i, Ch. iii, §§ 9-11. 36 ELEMENTARY LAW. § 66. Of Ancient Manors. A real estate in real property is also called a freehold. Under the feudal system, a large proportion of the lands of England were held in what were known as baronies or manors. A manor was a more or less extensive tract of land, granted by the crown to some feudal lord, and occu- pied bj' him with his freemen and his serfs. One part of this land was reserved for the private use of the lord him- self. Another part was granted out in separate holdings to the freemen. A third part was inhabited bj"- the serfs or villeins ; and the remainder, usuallj' the poorest portion and called the waste, was enjoyed by all, in common, for the gathering of wood or turf, or for the pasturing of cat- tle. The rights of the various inhabitants of the manor in this fourth portion, or waste, were among the principal incorporeal hereditaments then known to the law. Kead2 Bl. Comm., pp. 90-95. 1 Cruise Dig., Prelim. Diss. Ch. iii, §§ 32-43. Will. R. P., pp. 110, 322, 32.3. 1 Wash. E. P., B. i, Ch. ii, § 23. § 67. Of Feudal Services, Each of these persons held his estate in subjection to some feudal superior. The lord held the manor, immedi- ately or mediately, of the king, upon condition of rendering to him certain feudal services. The freemen held their lands of the lord upon the same condition. The serfs, or villeins, held their lands at the will of the lord, and rendered to him such services as he saw fit to require. Read 2 Bl. Comm., pp. 59-62, 90-95. 1 Cruise Dig., Prelim. Diss. Ch. i, §§ 14, 25, 53-55, 62; Ch. ii, §§2-14; Ch. iii, § 34. 3 Kent Comm., Lect. liii, pp. 487, 494-496. AVill. R. P., pp. Ill, 112, 323-325. 1 Wash. R. P., B. i, Ch. ii, §§ 13, 20, 26. ESTATES IN REAL PROPERTY. 31 § 63. Of Feudal Estates for Life. The relations, thus existing between the lord of the manor and his freemen, were supposed to continue during the en- tire life of the tenant. The tenant, although a freeman, became " the lord's man." He was obliged to render the stipulated or customary services, under penaltj' of forfeit- ing his estate ; and, so long as the services were rendered, the estate remained in him as his own exclusive propertj-. The duration of estate and services being thus commensu- rate, and the services being, in contemplation of law, for the life of the tenant, the estate was held to be for life also ; and hence it soon became a principle of feudal law that no estate, less than an estate for life, was worthy the accept- ance of a freeman, or could be a freehold. Read 2 Bl. Comm., pp. 53-56, 104. 1 Cruise Dig., Prelim. Diss. Ch. i, §§ 47-57, 62-66. 4 Kent Comm., Lect. Iv, pp. 23, 24. Will. R. P., pp. 22, 111. 1 Wash. R. P., B. i, Ch. ii, § 51 ; Ch. iii, § 10. § 69. Of Estates of Freehold and Less than Freehold. Human life, being of uncertain and unascertainable dura- tion, is presumed by law to be permanent and without end. An estate for life possesses the same legal character, and is, therefore, held to be of a higher order than any estate the period of whose existence can be ascertained, no mat- ter of how many years that period may consist. An es- tate, granted for a thousand years, is thus, in law, a less estate than one granted for life, however certain it may be that the former will outlast the latter ; and no estate is greater, in law, than an estate for life except one, which is so created that it will exist during the lifetime of the ten- ant, and, after his death, descend to his heirs. From these principles arises the first great division of estates in real 38 ELEMENTAEY LAW. property, into freehold estates and estates less than free- hold : freehold estates including life-estates and inheritable estates; estates less than freehold including all estates for fixed periods of time, and aU estates, the period of whose dura- tion may be determined, or can be ascertained, at the time when the estate itself is created. The former are real es- tates in real property. The latter are personal estates in real propertj', and are generally known as chattels real. Read 2 Bl. Comm., pp. 104, 143, 386, 387. 1 Cruise Dig., Tit. i, § 14; Tit. viii, Ch. i, §§ 2, 25. 4 Kent Comm., Lect. Iv, pp. 23, 24; Lect. Ivi, p. 83. § 70. Of the Seisin of Freehold Estates. The possession of corporeal real property, by one who has a freehold estate therein, is known as seisin. Seisin is not the mere physical occupation of the land, nor does it necessarily include it ; and occupation may be exclusively enjoyed by one man while the seisin is vested in another. Seisin is, however, so essential an element of a freehold estate, that such an estate can neither be created nor legally exist without it ; and if the seisin and estate chance to be severed, the law cannot recognize the existence of the latter until, in some manner, the former is regained. Read 2 Bl. Comm., pp. 53, 104, 120, 208, 209, 311. 1 Cruise Dig., Prelim. Diss. Ch. i, § 41; Tit. i, §23. 4 Kent Comm., Lect. Ixvii, p. 482. 1 Wash. R. P., B. i, Ch. ii, §§ 11, 65, 73-84. 2 Wash. R. P., B. ii, Ch. iv, Sec. 1, §§ 1-5. § 71. Of the Seisin during the Existence of Estates Less than Freehold. Disseisin. Seisin is predicable only of a freehold, and occupation becomes seisin only when the freehold tenant is himself ESTATES IN REAL PROPERTY. 39. the occupant. When the owner of an estate less than free- hold is in actual possession of the land, the seisin is in him, out of whose freehold the estate less than freehold was derived. When lands are in the occupation of a person who has no actual freehold interest therein, and who does not claim under, or as tenant of, the owner of the freehold, the freeholder is said to be disseised; and the law then finds both estate and seisin in this adverse occupant, until the freeholder assumes possession of the lands. Read 2 Bl. Comm., pp. 144, 195, 196. 1 Cruise Dig., Tit. i, §§ 33-35; Tit. viii, Ch. i, §§ 12. 4 Kent Comm., Lect. Ixv, p. 386 ; Lect. Ixvii, pp. 482-484.' 1 Wash. R. P., B. i, Ch. ii, §§ 52, 53, 80; Ch. x, Sec. 1, §7. 2 Wash. E. P., B. ii, Ch. iv. Sec. 1, §§ 1-5. 3 Wash. K. P., B. iii, Ch. ii. Sec. 7, § 10. § 72. Of the Seisin of Concurrent Freehold Estates. Several different estates of freehold may concurrently exist in the same land ; as an estate for life in one man and an inheritable estate in another. In such eases there is, however, but one actual seisin, and that is in the free- hold tenant who, by himself or by some person holding under him, actually occupies the land. The seisin of the other estates exists, however, in contemplation of law, and is said to rest temporarily upon, and to be represented by, the seisin of the actual possessor. Read 2 Bl. Comm., pp. 107, 164-167. 4 Kent Comm., Lect. lix, pp. 198, 234, 258-260; Lect. Ixv, pp. 386, 387. WiU. E. P., pp. 231-234. 1 Wash. E. P.,B. i,Ch. ii, §§ 70, 85-97; Ch. iii, § 16. 2 Wash. E. P., B. ii, Ch. iv, Sec. 1, §§ 1-5. 40 ELEMENTARY LAW. § 73. Of Legal Presumptions as to Seisin and Freehold. The law presumes, as to every parcel of land, that a free- hold estate therein, and its accompanj-ing seisin, always exists in some person. Thus on the failure or the termi- nation of any estate of freehold, the law finds the freehold and seisin of the land in him, out of whose estate such failing or determined freehold has been carved ; and, on the failure of the ultimate inheritable estate, regards both ownership and seisin as vested- in the state. Kead 2 Bl. Comm., pp. 107, 168 note 9. 1 Cruise Dig., Tit. i, § 36. 2 Cruise Dig., Tit. xvii, §§ 2, 3. 4 Kent Comm., Lect. Ixiii, pp. 353, 354; Lect. Ixvi, pp. 423-428. Will. R. P., pp. 248, 249. 1 Wash. E. P., B. i, Ch. ii, § 97. 2 Wash. R. P., B. ii, Ch. iv. Sec. 1, §§ 1-5. 3 Wash. R. P., B. iii, Ch. ii, Sec. 1, § 1. § 74. Of Seisin in Fact and Seisin in Law. Seisin is of two kinds : Seisin in Fact and Seisin in Law. Seisin in fact is the actual occupation of the land, either by the freeholder himself or by some other person claiming under him. Seisin in law occurs where no one is in actual occupation of the land ; as where an ancestor has died leav- ing lands vacant. The seisin, in such cases, is presumed by law to be in him who has the freehold interest, and may, at any time, be converted by him into seisin in fact. Read 1 Cruise Dig., Tit. i, §§ 24r-30. 1 Wash. R. P., B. i, Ch. ii, §§ 73-82. 3 Wash. R. P., B. iii, Ch. ii, Sec. 7, § 9. § 75. Of Livery of Seisin. , The creation of a freehold estate necessitates the trans- fer of the seisin to him, in whose favor the estate is created. ESTATES IN EEAL PROPERTY. 41 Hence no person can create a freehold unless he has the seisin in himself ; and one, who has the seisin, can create a freehold only by some act which is, in law, sufficient to divest himself of the seisin, and to confer it upon his gran- tee. This act was formerly called livery of seisin, and con- sisted in the delivery by the grantor to the grantee, on the land and in presence of the other freeholders of the same manor, of a turf, or twig, or other substance taken from the land. Read 2 Bl. Coram., pp. 314-316. 1 Cruise Dig., Prelim. Diss. Ch. i, §§ 41-44. 4 Cruise Dig., Tit. sxxii, Ch. iv, §§ 7-21. Shep. Touchstone, Ch. ix, §§ 4-11. Will. E. P., p. 249. 1 Wash. R. P., B. i, Ch. ii, §§ 64-69. § 76. Of Freeholds in Puturo. The act called livery of seisin was a present act, taking f- immediate effect, at once transferring the possession and creating the estate. Hence it was held to be impossible to create a freehold to commence in futuro ; and equally impossible to create a freehold which should come into enjoyment in futuro, unless, at the same time, an inter- mediate estate were created, to whose owner livery of seisin might be made, both on his own behalf and on be- half of the future freehold tenant. And therefore if, in any manner, the intermediate estate should fail before the actual seisin could vest in the future freehold tenant, the seisin would revert to him, out of whose freehold both estates had been created, and the estate, as well as seisin, of the future tenant would be forever gone. Read 2 Bl. Coram., pp. 144, 165-168, 314-316. 1 Cruise Dig., Tit. i, §37. 4 Kent Comm., Lect. lix, p. 234. Will. R. P., p. 249. 2 Wash. R. P., B. ii, Ch. iv. Sec. 1, §§ 1-5. 42 ELEMENTARY LAW. § 77. Of Uses. Although many of the rules of law, by which corporeal real property is governed, originated in this theory of seisin and in the character of the act by which it was transferred, the necessity of actual livery of seisin was destroyed by the interpretation given to a statute passed in the year 27 Henry VIIL (A. D. 1535), and called the statute of uses. Prior to this statute, many acts of parlia- ment had been enacted, to prevent the accumulation of real property in the hands of corporations. These acts were called acts of mortmain, and usually provided that all grants to such corporations should be void. The force of these acts was, however, easily evaded by granting land and making livery of seisin to some person, who could lawfully receive it, and dh-ecting him to hold it for the use and benefit of the corporate body. A grant so made vested the estate and seisin in the actual grantee, who, in a court of law, was thenceforth recognized as the sole owner of the land. But courts of equitj', regarding only the in- tent of the grantor to confer the beneficial interest on the corporation, compelled the legal owner to account to it for all the profits of the land. Bj- this method the corporation, though by law forbidden to take or hold the lands, was treated in equity as their true owner, and ultimately re- ceived the entire benefits of the estate. Eead 2 Bl. Comm., pp. 268-273. 1 Cruise Dig., Tit. i, § 41; Tit. xi, Ch. i, § 5. 2 Kent Comm. , Lect. sxxiii, p. 282. 4 Kent Comm. , Lect. Ixi, pp. 289-293. Will. R. P., pp. 144, 145. 2 Wash. R. P., B. ii, Ch. ii, See. 1, §§ 2-5. ESTATES IN REAL PROPERTY. 43. § 78. Of the Statute of Uses. The Statute of Uses was intended to correct tliis method of evading the acts of mortmain. It provided that where- ever the use of land vested, there the seisin, by operation of law, should also vest. The seisin was thus made to follow the use into any person to whom the use might at any time be transferred ; and if the use were given to one, who could not legally receive the seisin, the transfer of the use itself was void, and both the legal and the equitable estates remained in the grantor. Before the passage of this stat- ute, a grant to A., to the use of B., with livery of seisin made to A., conferred on A. the entire legal estate, leav- ing B. to compel him to account in equity for all benefits derived therefrom. After the passage of this statute, a grant to A., for the use of B., with livery of seisin made to A., conferred on B. the legal as well as the equitable estate ; and if B. were forbidden by law to receive the legal estate, the whole grant was void. Bead 2 Bl. Comm., pp. 327-335. 1 Cruise Dig., Tit. xi, Ch. iii, §§ 3-5, 40, 41. 4 Kent Comm., Leot. Ixi, pp. 294-297. Will. R. P., pp. 146-148. 2 Wash. K. P., B. ii, Ch. ii, Sec. 2, §§ 1-4. § 79. Of Trusts. For a short time the purposes of this statute seemed to be accomplished. The courts of law, however, having de- clared that a use could not he limited upon a use ; i. e. that in a grant to A., to the use of B., to the use of C, the use to C. was void and the entire seisin and estate vested and remained in B. ; the courts of equity embraced the oppor- tunity to carry out the supposed intention of the grantor, by holding that the use to C, though void at law, was good in equity, and by compelling B. to account to C. for 44 ELEMENTARY LAW. all the benefits of the estate. This second use in C. was called a trust, and the separation of the legal from the equitable estate thus became as easy and effective, as it had been before the statute was adopted. Read 2 Bl. Coram., pp. 335-337. 1 Craise Dig., Tit. xii, Ch. i, §§ 1-5.^ 4 Kent Comra., Lect. Ixi, pp. 301, 302. Will. K. P., pp. 149-151. 2 Wash. R. P., B. ii, Ch. ii. Sec. 2, § 5; Ch. iii, Sec. 1, §§ 5-7. Walker Am. Law, §§ 150-153. § 80. Of the Effect of the Statute of Uses on Livery of Seisin. The creation of an estate of freehold bj- liverj- of seisin was an open and pubhc act. The declaration or bestowal of a use was, on the contrary', often a secret act ; and in some cases, without any act whatever, the vesting of a use was implied by law. Thus, on the granting of an estate to A. with livery of seisin, a verbal direction to him, to account to B. for the profits thereof, was sufficient to con- fer the use on B. Or if the owner of land, by a mere oral contract, agreed to sell the land to B. and actually' i^eceived his price, however small that price might be, a use was im- mediatety implied in B. Hence, when the Statute of Uses was passed, vesting the seisin in whomsoever had the use, livery of seisin was no longer necessary, and the mere oral declaration of a use, or a parol bargain to convey, was sufficient to transfer both the seisin and estate. And although, since the statute of frauds (29 Charles II.), no freehold interest in lands can be created or transferred except in writing, yet the operation of the Statute of Uses still remains tlie same, and seisin passes now without other ESTATES IN REAL PROPERTY. 45. formalities than such as are legally necessary to create the estate. Read 2 Bl. Coram., pp. 330, 331, 337-339. 1 Cruise Dig., Tit. xi, Ch. i, § 4; Ch. iv, §§ 11-15. 4 Cruise Dig., Tit. xxxii, Ch. ix, §§ 1-5. 4 Kent Comm., Lect. Ixi, p. 291 ; Leet. Ixvii, pp. ■if'^ 495, 496. ■^Will. K. P., pp. 147, 167, 168. 2 Wash. R. P., B. ii, Ch. ii, Sec. 2, §§ 31-38. § 81. Of the Effect of the Statute of Uses on Freeholds in Future. The creation of a freehold estate to commence in futuro also became possible under the same statute. The pres- ent act of livery of seisin being no longer indispensable, and seisin ever following the use, it was only necessary to create a use to spring up in futuro, and, when the use arose, the seisin vested witli it in the one to whom the use was given. A grant of land to A., to the use of B. from and after a certain future event, causes the use to spring up in B. whenever that event occurs ; and the law, there- upon, without further act of any person, regards the seisin also as in B. Read 2 Bl. Comm., pp. 334, 335. 1 Cruise Dig., Tit. xi, Ch. ii, §§ 28, 29. 4 Kent Comm., Lect. Ixi, pp. 296-299. Will. R. P., pp. 267-271. 2 Wash. R. P., B. ii, Ch. ii, Sec. 2, §§ 23, 24. §82. Of "Livery" and "Grant." Seisin is predicable only of corporeal real property. As incorporeal property cannot be physically possessed, it can- not be created by any act conferring physical possession, 46 ELEMENTARY LAW. but only by some contract or agreement, called a grant. Hence corporeal real property is often said to lie in livery, and incorporeal to lie in grant. Bead 2 Bl. Comm., p. 317. 4 Cruise Dig., Tit. xxxii, Ch. iv, §§ 38-40. 4 Kent Comm., Lect. Ixvii, p. 490. Will. R. P., p. 220. 1 Wash. R. P., B. i, Ch. i, § 38. § 83. Of the Possession of Estates Less than Freehold. Of personal estates in corporeal real property there can also be no seisin. All such estates are carved out of some freehold, and although actual possession is essential to render the owner's interest complete, yet even during such possession the tenant has the occupation onlj-, while the seisin still remains in the freeholder under whom he claims. Eead2Bl. Coram., p. 144. 1 Cruise Dig., Tit. viii, Ch. i, §§ 12-15. 4 Kent Comm., Leot. Ivi, pp. 94, 95; Lect. Ixv, p. 386. Will. R. P., p. 864. 1 Wash. R. P., B. i, Ch. x, Sec. 1, §§ 7, 8. § 84. Of Entry. The act, by which the owner of an estate in corporeal real property takes physical possession of the same, is known as entry. If his estate is created by actual livery of seisin, his reception of the seisin on the latid, from the grantor, constitutes his entry. If his estate is otherwise created, or if it descends to him from a deceased ancestor, or if, once having had possession, he has been disseised, or if estates, whose possession takes precedence of his own, have been determined, his entry consists in going on the land and ESTATES IN BEAL PEOPERTY. 47- claiming it as his, according to the nature of Ms actual estate. Kead 2 Bl. Comm., p. 312. 3 Bl. Comm., pp. 174-179. 1 Cruise Dig., Tit. i, §§ 24-28. 2 Cruise Dig., Tit. xiii, Ch. ii, §§ 41-55. 1 Wash. R. P., B. i, Ch. ii, § 66. 2 Wash. R. P., B. i, Ch. xiv, §§ 15, 16. 3 Wash. R. P., B. iii, Ch. ii. Sec. 7, § 12. 48 ELEMENTAEY LAW. CHAPTER V. OF EEAL ESTATES IK EEAl PEOPEETT. § 85. Of Freehold Estates in General. Real estates in real property are of two kinds : Estates of Inheritance, and Estates for Life. An estate of inherit- ance (known also as an estate in fee) is an estate so cre- ated that it may survive the original owner, and, at his death, descend to his heir-at-law. An estate for life is an estate so created that it must terminate with the life of the owner, or with the life of some other specified person. Read 2 Bl. Comm., pp. 10^106, 120. 1 Cruise Dig., Tit. i, §§ 42-44; Tit. iii, Ch. i, § 1. 4 Kent Comm., Lect. liv, p. 4. i 1 Wash. R. P., B. i, Ch. iii, §§ 31, 32; Ch. v, Sec. 1,| §§ 1, 3. § 86. Of Estates iu Fee-Simple. Estates in fee are of two kinds : Estates in Fee-Simple, and Estates in Fee-Tail. An estate in fee-simple is an estate granted to a man and his heirs in general. This is the largest possible estate. It includes all other estates and is the sum of all. The owner may freely alienate it, or he may create lesser estates out of it ; and, when these lesser estates have all expired, the fee-simple wiU still rest in him or his heirs. Eead 2 Bl. Comm., pp. 104-109. 1 Cruise Dig., Tit. i, §§ 45-86. 4 Kent Comm., Lect. liv, pp. 4-10. Will. R. P., pp. 58-62, 74. 1 Wash. R. P., B. i, Ch. iii, §§ 33-93. REAL ESTATES IN REAL PROPERTY. 49. § 87. Of Estates in Fee-Tail. An estate in fee-tail is an estate granted to a man and the heirs of his body. Estates tail are called general, when granted to a man and the heirs of his body in gen- eral ; special, when granted to a man and certain special heirs of his. body ; male, when granted to a man and the male heirs of his body ; female, when granted to a man and the female heirs of his hoAj. An estate tail is also called a conditional fee. It was origiuallj' an estate for the life of the donee, so granted as to enlarge to a fee upon the birth of heirs capable of inheriting, and to shrink again into a life-estate when the possibility of issue, able to in- herit, became extinct. During its continuance the owner could use the property as freely as if his estate were a fee- simple, but he could alienate it only for his own life. These estates lost their chief value with the decline of the feudal system, could be defeated hj various devices, and, in this country, are of little practical importance. ! Eead 2 Bl. Coram., pp. 109-119. 1 Cruise Dig., Tit. ii. 4 Kent Comm., Leot. liv, pp. 11-22. Will. K. P., pp. 33-47, 54. 1 Wash. R. P., B. i, Ch. iv. § 88. Of Estates for Life. Estates for life are, as to their duration, of two kinds : Estates for the life of the tenant, and Estates per outer vie. Estates for the life of the tenant are such as are so created as to exist during the life of the tenant, and to expire at his death. Estates per auter vie are such as are so created in favor of one man as to exist during the life of another. The tenant is then called tenant per auter vie, and the person, during whose life the estate is to continue, is the cestui que vie. If the cestui que vie dies before the tenant per auter vie, 4 50 ELEMENTARY LAW. the estate, of course, ceases. If the tenant per auter vie dies before the cestui que vie, the estate still endures, and, formerly, might have been taken possession of and enjoyed by any person as a general occupant. Later, it went to the heir-at-law, executor, grantee or devisee of the tenant per auter vie as special occupant. In some States, it is now regarded as a chattel interest in the hands of the personal representatives of the deceased tenant per auter vie. Read 2 Bl. Comm., pp. 120, 121, 258-262. 1 Cruise Dig., Tit. iii, Ch. i, §§ 1-16, 46-59. 4 Kent Comm., Leot. Iv, pp. 23-27. Will. R. P., pp. 17-22. 1 Wash. R. P., B. i, Ch. v, Sec. 1. 89. Of the Creation of Estates for Life. Estates rfbr life are created either by an express grant from one person to another, or by operation of law. Read 2 Bl. Comm., p. 120. 1 Cruise Dig., Tit. iii, Ch. i, § 2. 4 Kent Comm., Lect. Iv, p. 24. 1 Wash. R. P., B. i, Ch. v. Sec. 1, § 2. § 90. Of Estates Tail after Possibility of Issue Extinct. Three kinds of estates for life are created by operation of law : Estates tail after possibility of issue extinct ; Estates by Curtesy ; and Estates in Dower. An estate tail after possibility of issue extinct is an estate originally granted in special tail, but which, because no heirs now exist or can ever exist who could inherit it, has been reduced, by the operation of law, from a fee to a life-estate in the pres- ent holder. The possibiUty of issue becomes thus extinct EEAL ESTATES IN REAL PROPERTY. 51. only upon the death, -without living issue, of some person to whose issue the estate is confined by the grant. Eead 2 Bl. Coram., pp. 124-126. 1 Cruise Dig., Tit. iv. Will. R. P., p. 52. 1 Wash. R. P., B. i, Ch. iv, §§ 58, 59. § 91. Of Estates by Curtesy. An estate by curtesy is the estate which a surviving hus- band has, by operation of law, in the real property of a deceased wife, who, during their married lifetime, was seised of an estate in fee in such real property, and who also, during their married lifetime, had by him a child, born alive, and capable of inheriting her estate. The marriage must have been lawful, or, if voidable, not avoided during the life of the wife. The estate of the wife must have been a fee, either legal or equitable. If the estate be in corporeal real propertj', either the wife, or her hus- band on her behalf, must have had the seisin in fact there- of during the coverture. Though the child must be born alive, the duration of its life is immaterial. This estate vests in the husband immediately upon the death of the wife, without further proceedings ; and any circumstance, which would have determined her estate if she were living, will determine his. If not so determined, it ceases with his life, and the inheritance then goes onward in her heirs as if no curtesy had existed. Read 2 Bl. Coram., pp. 126-128. 1 Cruise Dig., Tit. v. 4 Kent Comm., Lect. Iv, pp. 27-35. Will. R. P., pp. 209, 210. 1 Wash. R. P., B. i, Ch. vi. 52 ELEMENTARY LAW. § 92. Of Estates in Do-wer. An estate in dower is the estate which a surviving wife has, by operation of law, in one third of the real property of a deceased husband, who, during their married lifetime, was seised of such an estate in fee, in such real property, as her children could have inherited. This estate resem- bles that bj^ curtesy. The rule as to marriage is the same. The rule as to seisin differs in this : that to create an estate in dower the husband need only have had seisin in law with right to immediate seisin in fact. A widow has no right to take specific land as dower before the same is set out to her, and, until this is done, she is usually en- titled to support out of the estate. In some States, tlie widow has dower only in the real property of which her hus- band was seised in fee at the time of his death. The right of a widow to her dower may be destroj'ed by her accept- ance, either before marriage or after the death of her hus- band, of some other competent provision made bj' him for her in lieu of dower. Dower, as well as curtesy, is also barred by a divorce from the bonds of marriage. Kead 2 BI. Comm., pp. 129-139. 1 Cruise Dig., Tit. vi, vii. 4 Kent Comm., Lect. Iv, pp. 35-72. Will. R. P., pp. 213-217. 1 Wash. R. P., B. i, Ch. vii, viii. § 93. Of the Incidents of Estates for Life. The owner of an estate for life has a right to the full enjoyment and use of the property and all its profits, dur- ing his estate; but, with the exception of tenant in tail after possibility of issue extinct, has no right to so use it as to impair the value of the estates which succeed his own. He may take from the land such wood as he needs for his fire, and for the necessary repairs of liis tools, fences, and REAL ESTATES IN EEAL PROPERTY. 53. buildings. He may also take minerals and ores from mines already opened. He has a right to the annual crops, and, if his estate determines between planting and harvest, otherwise than by his own act, his executors may gather them. The same rights vest in his under-tenants ; and these do not lose their crops, even though the estate of the tenant for Ufe be terminated by his voluntary act. Read 2 Bl. Comm., pp. 122-124. 1 Cruise Dig., Tit. iii, Ch. i, §§ 17-31; Ch. ii. 4 Kent Comm., Leet. Iv, pp. 73-82. Will. R. P., pp. 23-25. 1 Wash. R. P., B. i, Ch. v, Sec. 2, 3, 4. 54 ELEMENTARY LAW. CHAPTER VT. OP PERSONAL ESTATES IN KEAX PEOPEETT. § 94. Of Estates for Years. Personal estates in real property are four : Estates for j'ears ; Estates at will ; Estates from year to year ; Estates by sufferance. An estate for years is an estate so created as to begin and end at certain specified dates. It is also called a term (from terminus^ on account of its pre- determined duration. It is usqallj- created by a contract, called a lease, and may be limited to endure for a day, a year, a century, or any other fixed period. It may be cre- ated to commence either immediately or at some future day, but the estate vests in the lessee onlj' when he begins to occupy the land. The lessee does not own the soil, but, within the limits created by his contract, he does own all the profits of it and all the use that can be made of it. He has a right to take necessary wood for his fuel and re- pairs ; to gather and remove the crops whenever his estate terminates, without his own concurrence, before its speci- fied end and between planting and harvest ; to work mines already open ; to erect buildings and remove them ; and otherwise to employ and appropriate the current products of the land. He may also assign and convey his whole estate to others, or underlet a part thereof. This is prac- tically one of the most important estates known to the law. Read 2 Bl. Comm., pp. 140-145. 1 Cruise Dig., Tit. viii. 4 Kent Comm., Leot. Ivi, pp. 85-111. Will. R. P., pp. 359-376. 1 Wash. R. P., B. i, Ch. x. PERSONAL ESTATES IN REAL PROPERTY, 55. § 95. Of Estates at "Will. An estate at will is an estate so created as to continue during the will of the parties. It maj' be created by ex- press grant, or by implication of law; and, generally, whenever a person is let into land by the owner thereof, without the grant of a freehold interest or of a certain term, and not under circumstances which show an inten- tion to create an estate from year to j'ear, as hereafter ex- plained, the person so let in has an estate at will. The estate ma.j be determined at the will of either party. A.ny acts of the lessor in assertion of his right of posses- sion, or anj" acts of abandonment of possession on the part of the lessee, or the death of either party, put an end to this estate. While it exists it is a mere scintilla of inter- est, entitling the lessee only to the usufruct of the land. He has nothing that he can assign, though he may under- let. He is entitled to take necessary wood for his fire and repairs ; and when his estate is determined by his lessor, without his consent, between planting and harvest, he can harvest and carry away the crops which he has planted. The liability of these estates to sudden termination, at the will of .either party, was long ago restricted by the adop- tion of a rule, requiring that such party should give notice to the othfer of his intention to determine the estate. The time when this notice should be given was left uncer- tain ; in some cases it being required to be given on the rent-day next preceding the day named as the cessation of the estate ; in other cases, within a reasonable time. This rule, of course, destroyed the essential characteristic of an estate at will wherever it was applied, although there still may be estates which are so created that this rule cannot apply, and which will, therefore, be strictly estates at will. Read 2 Bl. Comm., p^. 145-150. 1 Cruise Dig., Tit. ix, Ch. i, §§ 1-10. 4 Kent Comm., Lect. Ivi, p. 111. Will. R. P., p. 360. 1 Wash. R. P., B. i, Ch. xi, Sec. 1 56 ELEMENTAEY LAW. § 96. Of Estates from Year to Year. An estate from year to year is an estate so created that the law implies an agreement between the parties that the estate shall cease one year from the date of its beginning. This estate grew out of the uncertainty of the rule as to the time when a notice to quit must be given, in order to determine an estate at will, and was the result of judicial legislation. It exists -wherever an estate is created hy a parol lease, reserving rent paj'able yearly or at aliquot parts of a year, and fixing no time for the termination of the estate. Such an estate is also implied from the occupation by one of the land of another, and the payment and ac- ceptance of rent yearly or at aliquot parts of a year, with- out any express agreement. This estate, once created, continues until determined by notice to quit, or by some other sufficient legal cause. If the tenant holds, without such notice, into a second j^ear, the law implies an agreement that the estate shall continue, upon the same terms as be- fore, during that year, and in the same manner in succes- sive years. The necessity of notice, in order to determine this estate, binds the lessee as well as the lessor. This notice must clearly indicate when the estate is to cease, and the date so fixed must correspond with the end of the period during which the tenant maj- lawfully hold. At com- mon law, this notice must be given six months before the designated end of the estate, but this rule is often varied by statute. The notice, once given, maj' be revoked by mutual consent, in which case the estate continues as be- fore. This estate, unlike the ordinary estate at will, may survive the lessee, and vest in his personal representa- tives. It is also assignable. Read 2 Bl. Comm., p. 147. - 1 Cruise Dig., Tit. ix, Ch. i, §§ 20-32. 4 Kent Comm., Lect. Ivi, pp. 111-116. Will. R. P., pp. 360, 361. 1 Wash. R. P., B. i, Ch. xi, Sec. 2. PERSONAL ESTATES IN REAL PROPERTY. 57. § 97. Of Estates by Sufferance. An estate by sufferance is an estate whieli exists, by im- plication of law, in one ■who continues in ■wrongful pos- session of lands after the estate, by virtue of ■which he obtained rightful possession, has determined. Such es- tates are those of the tenant per auter vie, who holds after the death ot cestui que vie ; of a tenant for years or at will, whose possession continues after his estate has been deter- mined ; of undertenants, who occupy after the term of the original tenant has expired ; of grantors, who agree to deliver possession by a day certain and neglect to do so. These estates rest on no privitj"^ of contract or estate be- tween the owner and the tenant. The tenant has no right to any notice to quit, but may be expelled at any moment by the entry of the owner, and, if so expelled between planting and harvest, has no right to the crops which may then be growing. Read 2 Bl. Coram., pp. 150, 151. 1 Cruise Dig., Tit. ix, Ch. ii. 4 Kent Coram., Lect. Ivi, pp. 116-120. Will. R. P., p. 360. 1 Wash. K. P., B. i, Ch. xii, Sec. 1. 58 ELEMENTARY LAW. CHAPTER VII. OP THE TENURE OF ESTATES IN EEAl PROPEETT. § 98. Of Feudal Tenures. The feudal relation, subsisting between the lord of the manor and his tenant, was known as tenure. Anciently, all estates were conditional, being held upon condition of performing certain services or rendering certain trib- ute. Tenures were of various kinds, differing according to the nature of the conditions imposed upon the tenant, and the legal dignity of his estate. With the decay of the feudal system, however, many of these forms of tenure disappeared, and, with one exception, all laj' freehold ten- ures were abolished by the statute 12 Charles II. Read 2 Bl. Comm., pp. 44^102. 1 Crtiise Dig., Prelim. Diss. 3 Kent Comm., Lect. liii, pp. 487-509. Will. R. P., pp. 108-122. 1 Wash. R. P., B. i, Ch. ii. § 99. Of Tenures in the United States. In this country, tenure, in the feudal sense, never has been recognized. There is here no feudal superior, to whom service is to be rendered or tribute paid. In nearly all the States tenure is allodial (from al, the whole, and orf, ownership), and the holder of an estate has the entire ownership thereof residing in him. Conditional estates indeed exist, and are both numerous and important ; but the conditions originate in some contract between the par- ties, not in any feudal relation, and characterize or qualify TENURE OF ESTATES IN REAL PROPERTY. 59. the existence of estates, and not the tenure by which thej'' are held. Kead 3 Kent Comm., Lect. liii, pp. 509-514. 1 Wash. K. P., B. i, Ch. ii, § 98. § 100. Of Absolute and Conditional Sstates. Estates, as to the right of the holder thereof to their existence, are of two kinds : Absolute and Conditional. An absolute estate is an estate whose existence is indepen- dent and unqualified. A conditional estate is an estate whose existence depends upon the happening or not hap- pening of some uncertain event. Read 2 Bl. Comm., p. 152. 2 Cruise Dig., Tit. siii, Ch.-i, §§ 1, 2. 4 Kent Comm., Lect. Ivii, p. 121. 2 Wash. R. P., B. i, Ch. xiy, § 1. § 101. Of Express and Implied Conditions. Conditions qualifying the existence of estates are, as to their origin, of two kinds : Implied and Express. An implied condition is such as the law annexes to the ex- istence of certain estates. An express condition is one which is stated, in so many words, in the grant by which the estate is created. Read 2 Bl. Comm., pp. 152-154. 2 Cruise Dig., Tit. xiii, Ch. i, §§ 3-5. 4 Kent Comm., Lect. Ivii, pp. 121-124. 2 Wash. R. P., B. i, Ch. xiv, § 2. § 102. Of Precedent and Subsequent Conditions. Conditions qualifying the existence of estates are, as to their effect, of two kinds : Precedent and Subsequent. A condition precedent is one which must be fulfilled before an estate can come into existence. If such a condition be 60 ELEMENTAKT LAW. impossible, or unlawful, it can never be fulfilled, and the estate can never vest in the grantee. A condition subse- quent is one whose fulfilment wUl defeat an estate already vested. If such a condition be impossible, or unlawful, the estate can never be defeated. An estate in fee-tail is an instance of an estate upon condition precedent, being an estate for life, conditioned to become an estate in fee upon the birth of heirs capable of inheriting. An estate in mortgage, which is an estate created in favor of the holder of an obligation and conditioned to become void upon the performance of such obligation, is an instance of an estate upon condition subsequent. Read 2 Bl. Comm., pp. 154-162. 2 Cruise Dig., Tit. xiii, Ch. i, §§ 6, 7; Tit. xv, Ch. i, §11 4 Kent Comm., Lect. Mi, pp. 124-126, 130-133; Lect. Iviii. 2 AVash. E. P., B. i, Ch. xiv, §§ 2, 4-9. Walker Am. Law, §§ 142-148. § 103. Of Conditional Limitations. Similar to a condition subsequent is a conditional limita- tion, which is a qualification annexed to an estate, and with the cessation of which the estate also ceases. It differs from a condition proper in this : that the fulfilment of the condi- tion proper does not defeat the estate unless the person, in whose favor it is to be defeated, so elect ; while, in a conditional limitation, the cessation of the qualification, ipso facto, determines the estate. An estate, granted to a woman, as long as she remains unmarried, is an instance of a conditional limitation. Read 2 Bl. Comm., pp. 155, 156. 2 Cruise Dig., Tit. xiii, Ch. ii, §§ 67-69; Tit. xyi, Ch. ii, §§ 30-33. 4 Kent Comm., Lect. Ivii, pp. 126-129. 2 Wash. R. P., B. i, Ch. xiv, §§ 27-31. TENURE OF ESTATES EN REAL PROPERTY. 61. § 104. Of the Transfer of Conditional Estates. Any kind of an estate in real property may be granted subject to a condition, and will thenceforth remain subject thereto, notwithstanding any alienation or descent of the estate. Bead 2 BI. Comm., pp. 109-111, 152. 2 Cruise Dig., Tit. xiii, Ch. i, § 9. 2 Wash. R. P., B. i, Ch. xiv, §§ 24, 25. 62 ELEMENTAEY LAW. CHAPTER Vin. OF THE TIME OF THE ENJOYMENT OP ESTATES IN REAL PROPERTY. § 105. Of the Enjoyment of Estates. Estates, as to the time when they are to begin to be enjoyed, are of two kinds: Estates in Possession, and Estates in Expectancy. An estate in possession is an es- tate so created as to vest in the owner thereof a present right of present enjoj'ment. An estate in expectancy is an estate so created that the enjoyment thereof is postponed until some future day. Read 2 Bl. Comm., p. 163. 2 Cruise Dig., Tit xvi, Ch. i, § 1. 1 Wash. R. P., B. i, Ch. i, § 41. 2 Wash. R. P.; B. ii. Ch. iv, Sec. 1, §§ 1-4. § 106. Of Estates in Expectancy. Reversions ; Remain- ders ; Executory Interests. Estates in expectancy are of three kinds : Estates in Eeversion ; Estates in Remainder ; and Executory Inter- ests. An estate in reversion is that residue of his original estate which remains in a grantor, after he has granted to another a less estate than his own. An estate in remainder is an estate created by the same grant which creates an- other estate, and is limited to take effect in possession after that other estate has determined. An executory inter- est is an estate created to commence at some future time, without reference to any precedent or intermediate estate. Thus if A., owning a fee-simple estate, grant an estate for ENJOYMENT OF ESTATES IN REAL PROPERTY. 63, life to B., the residue of the fee-simple still resides in A. as a reversion, and its enjoyment will commence after B.'s estate for life has determined. If, at the same time and by the same act, A. grants an estate for life to B., and the whole, or any part of, tbe residue of his fee-simple to C, the estate of C. is a remainder, and will take effect in pos- session only after the life-estate has ended. Or if A., for valuable consideration, grant the fee-simple to B. and his heirs, to hold to the use of C. and his heirs from and after a certain future event, the use, and consequently the entire seisin and estate, will, on the happening of that event, vest in C. and his heirs, and will meanwhile be known as an executory interest. Read 2 Bl. Comm., pp. 163^176. 2 Cruise Dig., Tit. xvi, Ch. i, §§ 2-6; Ch. v; Tit. xvii, §§ 1-11. 4 Kent Comm., Lect. lix, pp. 197, 237; Lect. Ix, p. 264; Lect. Ixiii, p. 353. Will. R. P., pp. 222,223,243. 2 Wash. R. P., B. ii, Ch. iv, Sec. 1, §§ 5-7; Ch. v, Sec. 2, § 1; Cli. vii, Sec. 1, § 1; Ch. viii, § 1. § 107. Of the Distinctions between Reversions, Remain- ders, and Executory Interests. These three estates in expectancy differ, therefore, in the following particulars : (1) To the existence of a reversion or remainder a precedent, or particidar, estate is necessary, but not so to an executory interest ; (2) A reversion exists by operation of law, which always finds the ultimate fee-sim- ple somewhere, while remainders and executorj'^ interests are created by act or agreement of the parties ; (3) Rever- sions and remainders are estates at common law, and are governed by rules based on the doctrine that actual livery of seisin is essential to the creation of a freehold estate, 64 ELEMENTARY LAW. while executory interests are estates, which are created either hy will or under the Statute of Uses, and are gov- erned by rules peculiar to a de-\'ise, or by rules based on the doctrine that the seisin follows the use without any actual liverjr ; (4) Remainders can be defeated by the lapse of the seisin into the grantor, through the determination of the particular estate before the remainder can take effect in possession, while nothing can prevent the iSnal vesting of the seisin in the grantee of an unconditional executory interest. Kead 2 Bl. Comm., pp. 163-168, 173-178. 2 Cruise Dig., Tit. xvi, Ch. i, § 10; Ch. iv, §§ 2-4, 7; Ch.v, § 19; Tit. xvii, § 12. 4 Kent Comm., I,ect. lix, pp. 233-237, 248, 253; Leot. Ixiii, pp. 353-355. Will. E. P., pp. 222, 223, 267. 2 Wash. R. P., B. ii, Ch. iv, Sec. 1, §§ 5-7, 10; Ch. V, Sec. 2, §§3,4. § 108. Of Estates in Reversion. An estate in reversion is a present vested estate and has all the properties of the grantor's original estate, except the right of immediate possession. It maybe alienated by deed, or executory interests may be created out of it. Any permanent injury to the property, in which such estate is held, is a wrong against the reversioner, for which he may have his remedy at law. Read 2 Bl. Comm., pp. 175, 281-284. 2 Cruise Dig., Tit. xvii, §§ 12-16. Will. R. P., p. 223, 224. 2 Wash. R. P., B. ii, Ch. viii. § 109. Of Vested Remainders. Estates in remainder are of two kinds : Vested and Con- tingent. A vested remainder is a remainder so created that, ENJOYMENT OF ESTATES IN REAL PROPERTY. 6,5. from its commencement to its close, the seisin could vest instantly in the remainder-man in case the particular estate be determined. This can be true only when the remainder is limited to a definite person in being at the time of the grant. Such a remainder is not, however, certain to result in the possession of the estate. A grant to A. for Hfe, remainder to B. for life, both being living persons, creates a vested remainder in B., j'et B. may die before A., and his estate in remainder thus come to an end. " It is the present capacity of taking effect in pos- session, if the possession were to become vacant, and not the certainty' that the possession will become vacant before the estate limited in remainder determines," which charac- terizes a vested remainder. Read 2 Bl. Comm., p. 168. 2 Cruise Dig., Tit. xvi, Ch. i, §§ 8, 9, 41, 45. 4 Kent Comm., Lect. lix, pp. 202-204. Will. R. P., pp. 230-231. 2 Wash. R. P., B. ii, Ch. iv, Sec. 1, §§ &-10, 15-17. § 110. Of Contingent Remainders. A eontingmt remainder is a remainder so created that the particular estate can be determined, before the seisin of the remainder is able to vest in the remainder-man. This is the case wherever the remainder is limited to a person not in being, or to a person not at present capable of taking the estate, or when it is made dependent upon a future and uncertain event. A grant to A. for life, remainder to B.'s eldest son, B. having no son, is a contingent remainder, for A. may die before B. has any son. So a grant to A. for life, remainder to B. in fee if C. survive A., is a contingent remainder, for A. may outlive C. If, however, before the particular estate ceases, the person, to whom the contingent remainder 6 66 ELEMENTARY LAW. is limited, becomes capable of taking it, or if the event, on which the remainder depends, actually happens, and the seisin thus becomes able to vest in the remainder-man, the contingency is extinguished, and the remainder will thenceforth be a vested one. Read 2 Bl. Comm., pp. 169-172. 2 Cruise Dig., Tit. xvi, Ch. i, §§ 10, 40, 41, 45; Ch. ii, iii, iv. 4 Kent Comm., Lect. lix, pp. 206-208. WiU. K. P., pp. 2-12-245, 247-251. 2 Wash. R. P., B. ii, Ch. iv, Sec. 1, §§ &-10, 26; Sec. 3-6. § 111. Of the Alienation of Remainders. A vested remainder is alienable by any form of convey- ance which does not necessitate delivery of possession. A contingent remainder is also alienable when the contin- gency is one of event and not of person, there being, in the latter case, no one able to conve3'. Read 2 Bl. Comm., p. 175. 4 Kent Comm., Lect. lix, pp. 205, 261. Will. R. P., pp. 233, 255-257. 2 Wash. R. P., B. ii, Ch. iv. Seel, § 20; Sec. 6, § 6. § 112. Of E:zecutory Interests. Rule against Perpetui- ties. Executory interests are of great variety. When created by will they are usually called executory devises. Although such interests may be created to commence in futuro, yet the rule against perpetuities forbids the creation of estates so limited as to take effect at a daj' more distant from the date of the grant, than during a life or lives in being and twenty-one years, (with the addition of the usual period of gestation,) after such lives have ceased. Whenever it is ENJOYMENT OF ESTATES IN REAL PROPERTY. 67. doubtful whether the terms of a grant create an executory interest or a remainder, the estate so created is regarded as a remainder. Kead 2 Bl. Coram., pp. 173-175, 334, 335. 2 Cruise Dig., Tit. xvi, Ch. ii, § 28. 6 Cruise Dig., Tit. xxxviii, Ch. xvii, § 1 ; Ch. xviii, §§ 12, 13. 4 Kent Comm., Lect. lix, pp. 237-247 ; Lect. Ix, pp. 264-271. Will. R. P., pp. 267-271, 293, 294. 2 Wash. K. P., B. ii, Ch. v, Sec. 2, 3 ; Ch. vii, Sec. 1, § 1 ; Sec. 2, § 2. 68 ELEMENTARY LAW. CHAPTER IX. OP THE NUMBER AND CONNEXION OF THE TENANTS IN ESTATES IN EEAI, PROPERTY. § 113. Of Joint and Several Estates. Estates, as to the number and connexion of their ten- ants, are of three kinds : Estates in Severalty ; Estates in Joint-Tenancy ; and Estates in Common. An estate in severalty is an estate, both the ownership and possession of which are granted to, or vested in, one person only. An estate in joint-tenancy is an estate granted to two or more persons jointly. An estate in common is an estate vested in one person, but the possession of which is united with that of other estates, held by other persons, in the same property. Read 2 Bl. Coram., pp. 179, 180, 191. 2 Cruise Dig., Tit. xviii, Ch. 1, §§ 1-3 ; Tit. xx, §1- 4 Kent Comm., Lect. Ixiv, pp. 357, 367. Will. R. P., pp. 123, 127. 1 Wash. R. P., B. i, Ch. xiii. Sec. 1, §§ 1, 2 ; Sec. 3, §1. § 114. Of Estates in Severalty. An estate in severalty is the usual form of an estate, and all estates are presumed to be in severalty unless the contrary be expressly declared. The owner of such an estate has the entire control thereof, and may enjoy it as CONNEXION OF TENANTS IN ESTATES. 69. he pleases, so long as he does nothing to impair the value of other estates in the same property. Read 2 Bl. Comm., p. 179. 2 Cruise Dig., Tit. xviii, Ch. i, § 2. § 115. Of Estates in Joint-Tenancy. The Pour Unities. An estate in joint-tenancy is characterized by the four unities : Unity of estate ; Unity of title ; Unity of time ; and Unity of possession. There is said to be unity of estate, be- cause there is but one estate created, and because, whatever the number of persons to whom such estate is granted, they together constitute but one tenant. There is said to be unity of title, time and possession, because all these persons have ,their estate by the same act of the same grantor, enter upon its enjoyment at the same time, and possess it together as if they were but one person. All these unities are, however, reducible to the one unity of estate, since every estate is essentially a unit, and presupposes unity of title, time and possession. Read 2 Bl. Comm., pp. 180-183. 2 Cruise Dig., Tit. xviii, Ch. i, §§ 12, 13, 17, 18, 27. 4 Kent Comm., Lect. Ixiv, pp. 357, 358. Will. R. P., pp. 123-126. 1 Wash. R. P., B. L, Ch. xiii, Sec. 1, § 6. § 116. Of Estates in Joint-Tenancy. Survivorship. An estate in joint-tenancy is also characterized by the right of survivorship. For an estate, granted to two or more persons as one tenant, can never be without a tenant as long as either of such persons survive. In contempla- tion of law, therefore, the death of one joint-tenant works no change in the estate. It still inheres in the survivors, to the exclusion of the heirs or representatives of the de- 70 ELEMENTARY LAW. ceased co-tenant, and onh' ceases to exist when, in the last survivor, it becomes an estate in severalty. Read 2 Bl Comm., pp. 183, 184. 2 Cruise Dig., Tit. xviii, Ch. i, §§ 28, 29. 4 Kent Comm., Lect. Ixiv, pp. 360, 361. Will. K. P., pp. 123-126. 1 Wash. K. P.. B. i. Ch. xiii. Sec. 1, §§ 7-10. § 117. Of the Inciaents of Estates in Joint-Tenancy. The same unitj' of estate leads to other rules, viz. : that possession by one joint-tenant Is possession by all ; that if one purchases an adverse title it accrues to all, if they so elect : that one can neither sue or be sued alone in respect to the joint-estate : that the estate is not subject to dower or curtesy, nor can one of the joint-tenants devise his share therein. Bead 2 Bl. Comm., pp. 182, 183. 2 Cruise Dig., Tit. xviii, Ch. i, §§ 52, 62, 64. 4 Kent Comm., Lect. Ixiv, p. 359. 1 Wash. R. P., B. i, Ch. xiii. Sec. 1, §§ 11-16, 21. § 118. Of the Alienation of Estates in Joint-Tenancy. A joint-tenant may, however, alienate his share of the estate, either to his co-tenants or to a stranger. If to a stranger, the stranger thereby becomes tenant in common with the other joint-tenants ; if to a sole co-tenant, he be- comes tenant in severalty ; if to one of several co-tenants, he becomes tenant in common as to the share aliened and remains joint-tenant as to the rest. Read 2 Bl. Comm., p. 185. . 2 Cruise Dig., Tit. xviii, Ch. ii, §§ 10-22. 4 Kent Comm., Lect. Ixir, p. 360. Will. R. P., p. 127. 1 Wash. R. P., B. i, Ch. xiii, Sec. 1, §§ 17, 18. CONNEXION OF TENANTS IN ESTATES. 71. § 119. Of the Destruction of Estates in Joint-Tenancy. Estates in joint-tenancy may be destroj-ed by destroying either of the unities of estate, title, or possession ; by alienation to a stranger ; by voluntary partition ; or by vesting in a sole survivor. Read 2 Bl. Conim., pp. 185-187. 2 Cruise Dig., Tit. xviii, Ch. ii. 4 Kent Comm., Lect. Ixiv, pp. 363-366. Will. R. P., pp. 128, 120. 1 Wash. R. P., B. i, Ch. xiii. Sec. 1, § 22; Sec. 7. § 120. Of Estates in Common. Estates in common are characterized bj' unity of possession. Though they may have the other unities of time and title, 3'et these are not necessarj', the community of possession being the only essential feature of the estate. The interest of the tenants is not a joint interest. Each has his own sep- arate estate, which he can manage as he pleases provided he does not injure his co-tenants in so doing, and which he can convey by deed or will, or which ma}' descend to his heirs. From this severalty of estate it results that, between tenants in common, there is no survivorship. Read 2 Bl. Comm., p. 191. 2 Cruise Dig., Tit. xx, §§ 2, 21, 23. 4 Kent Comm., Lect. Ixiv, pp. 367-369. Will. R. P., pp. 127, 128. 1 Wash. R. P., B. i, Ch. xiii. Sec. 3, §§ 1-6, 10-16. § 121. Of the Creation of Estates in Common. Copar- cenary. This estate may be created either by grant, devise, descent, or the destruction of one of the unities of a joint- tenancy. Any estate, granted to two or more persons, will be considered an estate in common in each, unless it is 72 ELEMENTARY LAW. expressly declared to be joint in all. The same rale ap- plies to a devise. The descent of an estate to two or more persons was formerly held to create a peculiar estate in them, called coparcenary, but in this countrj' no distinc- tion, between such estates and estates in common, has been recognized. Read 2 Bl. Comm., pp. 187-193. 2 Cruise Dig., Tit. xx, §§ 3, 4, 7. 4 Kent Coram., Lect. Ixiv, pp. 363, 364, 366, 867. 1 Wash. R. P., B. i, Ch. xiii, Sec. 1, § 9; Sec. 2. § 122. Of the Incidents and Destruction of Estates in Common. An estate in common may be destroyed by the union of all the estates in common in one person, or bj' a partition of the property between the different tenants. While the estates continue in common, the possession of one tenant is usually regarded as the possession of all ; though, if he erect buildings, or make improvements on the land, he cannot charge his co-tenants with any part of the expense thereof. Necessary repairs to existing buildings, how- ever, he maj' make, and can claim contribution from his co-tenants on payment for the same. Read 2 Bl. Comm., p. 194. 2 Cruise Dig., Tit. xx, §§ 14, 25, 84. 4 Kent Comm. , Lect. Ixiv, pp. 369-371. Will. R. P., pp. 128, 129. 1 Wash. R. P., B. i, Ch. xiii. Sec. 3, §§ 7-9, 17-18; Sec. 7. TITLE TO ESTATES IN REAL PROPERTY. 73. CHAPTER X. OF THE TITLE TO EST.iTES IN KEAL PEOPEKTT. § 123. Of Title. Title by Descent. Title by Purchase. Title is the means whereby an estate is acquired. An estate becomes complete in the owner thereof only when he has the right of property, the right of possession, and actual possession. Title is, therefore, the means by which the owner of an estate acquires his right of property, his right of possession, and his actual possession. Such titles are of two kinds : Titles by Descent, and Titles by Purchase. Title hy descent is that title by which the heir- at-law acquires an estate upon the death of his ancestor. ■ Title hy purchase is any other title than that by descent, whether it be by operation of law, or by the act of the parties. Read 2 Bl. Comra., pp. 195-201. 3 Cruise Dig., Tit. xxix, Ch. i, §§ 2-12, 16, 17, 22; Ch. ii, § 1. 4 Kent Comm., Lect. Lxv, pp. 373, 374. 3 Wash. R. P., B. iii, Ch. i, Sec. 1. § 124. Of Consanguinity. The descent of estates is governed by rules growing out of the doctrine of consanguinity. Consanguinity is the connection or relation of persons who are descended from the same stock, or common ancestor. It is of two kinds : Lineal and Collateral. Lineal consanguinity is the relation between persons, one of whom is descended in a direct line from the other. Collateral consanguinity is the relation between persons, who are descended from the same stock. 74 ELEMENTARY LAW. but not one from the other. The degree of consanguinity between two persons is computed, either by counting from the common ancestor to that one of the two persons who is most remote from him , or by adding together the num- ber of degrees existing between each of the two persons and the common ancestor. The latter is the method usu- ally adopted in this country. Read 2 Bl. Comm., pp. 202-207. 3 Cruise Dig., Tit. xxix, Ch. ii, §§ 6, 7. 4 Kent Coram., Lect. Ixv, pp. 412, 413. 3 Wash. R. P., B. iii, Ch. i, Sec. 2, §§ 11, 12. § 125. Of the "Whole Blood and Half Blood. Kindred of the whole blood are they who are descended, not only from the same ancestor, but from the same pair of ancestors. Kindred of the half blood are they who, though descended from the same ancestor, are descended from him through different marriages. Kindred of the half blood were ancientlj' unable to inherit from each other. Read 2 Bl. Comm., p. 227. a Cruise Dig., Tit. xxix, Ch. iii, §§ 52, 53. 4 Kent Coram., Lect., Ixv, p. 403. 3 Wash. R. P., B. iii, Ch. i. Sec. 2, § 18. § 126. Of the Rules of Descent. The seven canons of descent, as contained in Blackstone's Commentaries, are no longer in force either in this country or in England. Each of the States has its own laws of descent, subject, of course, to occasional changes, and the only reliable source of information concerning them is the statute-boolcs, in which they are contained. Read 2 Bl. Coram., pp. 208, 212, 214, 217, 220, 224, 234. 4 Kent Comm., Lect. Ixv, pp. 374-419. Will. R. P., pp. 92-107. 3 Wash. R. P., B. iii, Ch. i, Sec. 2, §§ 10, 13-44. TITLE TO ESTATES IN REAL PROPERTY. 75 § 127. Of Title by Purchase. Title by purchase is of two kinds : Title bj- operation of law, and Title by act of the parties. Title by operation of law is the title bj' which a person acquires an estate either through the operation of law alone, acting suo motu, or through the operation of law, acting with reference to some precedent act of one of the parties. Title by act of the parties is the title whereby a person acquires an estate which has been voluntarilj- transferred to him, or created in his favor, by another, and voluntarily accepted by him- self. Kead 2 Bl. Comm., p. 241. 3 Cruise Dig., Tit. xxx, §§ 1-4. 4 Kent Comm., Lect. Ixvi, p. 423. 3 Wash. R. P., B. iii, Ch. i, Sec. 1, § 4. § 123. Of Title by Escheat. Title by operation of law is of ten kinds : Title by Es- cheat ; Title bj' Accretion ; Title by Abandonment ; Title by Forfeiture ; Title by Prescription ; Title by Possession ; Title by Marriage ; Title by Execution ; Title by Judicial Decree ; Title by Eminent Domain. Title by escheat is the title by which the state acquires an estate in the real prop- erty of such persons as die intestate and without lawful heirs. Theoretically, all owners of estates in real property originally derive their right thereto from the state, of whose territory that property forms a part ; and, on failure of such owners, the property itself returns into the common ownership of the state. Before the state takes actual pos- session, however, there is usuall}- an investigation, by suit, of its right to do so, called an inquest of office, or office found. When a state acquires property by escheat, it takes only the estate of the former owner, and holds it, or trans- 76 ELEMENTARY LAW. mits it, subject to all the burdens which attended it in his bands. Read 2 Bl. Comm., pp. 244-257. 3 Cruise Dig., Tit. xxx, §§ 5-8, 11, 33, 39. 4 Kent Comm., Lect. Ixvi, pp. 423-426. Will. K. P., pp. 118, 117. 3 Wash. R. P., B. iii, Ch. ii, Sec. 1. § 129. Of Title by Accretion. Alluvion. Avulsion. Title hy accretion is the title by which the owner of land acquires an estate in other land, which has been grad- ually added thereto by the operation of natural causes. Thus in alluvion, where soil is gradually washed upon and united with the shore of the sea or of a river, it becomes the property of the owner of the land to which it is attached. So islands, formed in unnavigable rivers, belong to the owners of one or both banks, according to their situation in reference to the central line of the stream. So when a stream, running between two estates, gradually changes its course, the boundary line changes with it, and one pro- prietor loses what the other gains. But in avulsion, or the sudden removal by water of large quantities of soil, and their deposition on or annexation to the land of another, the ownership of the soil thus suddenly removed is not changed. And where a stream suddenly changes its course, so as to leave a body of land, belonging to one, annexed to that of another without the former intervening current of water, the ancient boundary is not altered, but the whole stream becomes the property of the one through whose land it now flows. Read 2 Bl. Comm., pp. 261, 262. 8 Kent Comm., Lect. Iii, p. 428. 3 Wash. R. P., B. iii, Ch. ii. Sec. 4. TITLE TO ESTATES IN REAL PROPEBTY. 77 § 130. Of Title by Abandonment. Title by abandonment is the title whereby the owner of an estate, which is subject to an incorporeal hereditament, acquires the right, without his own act, to hold his estate free from the burden of such incorporeal hereditament. This title can arise only where the owner of the incorporeal hereditament does some act inconsistent with the further existence of the same. Mere non-user is not enough to raise even a presumption of abandonment, unless con- tinued for a long period (usually twenty years) ; and this presumption is of little force, unless aided by acts of the owner of the hereditament. Kead 3 Kent Comm., Lect. lii, pp. 448-452. 3 Wash. R. P., B. iii, Ch. ii, Sec. 5. § 131. Of Title by Forfeiture. Title by forfeiture is the title by which the grantor of an estate upon condition subsequent, or his heirs or assigns, on fulfilment of such condition, again acquires an estate in the property in which such conditional estate was granted, or again enjoys his original estate free from the limita- tions imposed thereon by the existence of the conditional estate. Read 2 Bl. Comm., pp. 153, 267-284. 2 Cruise Dig., Tit. xiii, Ch. ii, § 41. 4 Kent Comm., Lect. Ixvi, pp. 426-428. 2 Wash. R. P., B. i, Ch. xiv, §§ 11-23. § 132. Of Title by Prescription. Title by prescription is the title by which the possessor of an incorporeal hereditament, after a certain period of pos- session, acquires an estate in such hereditament. This title rests upon the rule of law, that such continued posses- sion raises a conclusive presumption that there has been a 78 ELEMENTAET LAW. grant of such hereditament, to the possessor thereof, by the owner of the corporeal property in, or concerning, or an- nexed to, which the incorporeal hereditament is alleged to exist. The time, during which such possession must have continued is usually fixed by statute. The possession must have heen: (1) Adverse; i.e. inconsistent with the enjoy- ment of the coqDoreal propertj' by its true owner, accord- ing to the nature of his estate therein ; (2) Under a claim of right ; i. e. with the avowal, on the part of the possessor, that he has a legal right to the possession of the heredita- ment; (3) Continuous; i. e. without abandonment, or dis- use, or substantial alteration in the mode of use, on the part of the possessor; (4) Uninterrupted; i.e. enjoyed, during the whole of the required period of time, by the same individual possessor, or bj- a series of individuals, each claiming title through his predecessors from the orig- inal adverse possessor; (b) Peaceable ; i.e. without such action, on the part of the owner of the corporeal property, as suspends, or restricts, or terminates, or interferes with the enjoyment of the hereditament by its possessor ; (6) With the knowledge of the owner of the corporeal property. Read 2 Bl. Comm., pp. 263-266. 3 Cruise Dig., Tit. xxxi, Ch. i. 3 Kent Comm., Lect. lii, pp. 441-445. 2 Wash. R. P.,B. ii, Ch. i, Sec. 3, §§ 6, 7, 17-29. 3 Wash. R. P., B. ill, Ch. ii. Sec. 3. § 133. Of Title by Possession. Title by possession is the title by which the possessor of land, after a certain period of possession, acquires an estate in such land. This title rests upon the theory that such continued possession is inconsistent with actual own- ership in any one else, and upon the rule that after such a lapse of time no antagonistic ownership shall be asserted ; but there is no presumption of a transfer of the estate from TITLE TO ESTATES IN EEAL PROPERTY. 79 the former to the present owner. In order that it may result in title, this possession must he: (1) Actual; i. e. a physical occupation of the land by the alleged possessor, or bj' some other person claiming title under bim ; (2) Definite; i. e. confined within perceptible boundaries in such a manner that the precise extent of the physical occu- pation is always ascertainable ; (3) Notorious ; i. e. so open and apparent that no one, who was familiar with the land, could remain ignorant of such possession ; (4) Continued ; i. e. without abandonment of the land on the part of the possessor, and without entry on the part of its true owner ; (5) Adverse ; i. e. inconsistent with the seisin or possession of the land by its real owner, according to the nature of his estate therein ; (6) Exclusive ; i. e. undisturbed by the antagonistic occupation of any other claimant of the land ; (7) Uninterrupted ; i. e. enjoyed, during the whole of the re- quired period of time, by the same person, or by a series of persons each claiming title, through his predecessors, from the original adverse possessor ; (8) Under a claim of right; i. e. with the avowal, on the part of the possessor, that he has a legal right to the possession as the owner in fee-sim- ple of the land itself. Such a possession justifies the pre- sumption that the real owner of the land acquiesces in the claim of ownership, made by him who has the actual posses- sion ; and, after the prescribed period- of acquiescence has elapsed, the law forbids the true owner to assert his title against the alleged title of the possessor. And, therefore, as the actual possessor of corporeal propert.y has always a good title thei'eto against all the world except the true owner, when the true owner can no longer assert his title the ownership of the possessor becomes complete and inde- feasible. Read 2 Bl. Comm., pp. 195-199. 3 Cruise Dig., Tit. xxxi, Ch. ii, §§ 1, 2, 6, 15-26, 38-40. 3 Wash. R. P., B. iii, Ch. ii, Sec. 7. 80 ELEMENTARY LAW. § 134. Of Title by Marriage. Title ly marriage is the title by which a husband acquires an estate in the real property of his wife, or a wife acquires an estate in the real property of her husband. The nature and extent of this estate, during the coverture, differs in the different States, and is to be ascertained by an examina- tion of their statutes. Estates in dower and by curtesy, which arise at the termination of coverture are held by this title, the law vesting such estates in the husband or wife immediately on the death of the other party to the marriage. Read 2 Kent Comm., Lect. xxviii, pp. 129-134. Will. R. P., pp. 205-217. 1 Wash. R. P., B. 1, Ch. ix, See. 1. Reeve Dom. Rel., pp. 27-38, 39-59. Schouler Dom. Rel., pp. 142-157, 163-166, 182-186. § 13S. Of Title by Execution. Title by execution is the title by which a creditor, or other person, acquires an estate in such real property of a debtor as is sold or set off, under process of law, in satis- faction of a judgment-debt. In all of the States, the estate of a judgment-debtor in real property may be seized and levied on in execution, and, in most of them, a judgment creates a lien on such estate without the issue or levy of an execution. The mode of levying an execution on real property differs very greatly in different States. In some, the land itself is set off and deeded to the creditor by the officer levj'ing the execution. In others, the land is sold at auction by the officer, and deeded by him to the party purchasing. In others, the land may be placed by the sheriff in the possession of the creditor until the rents and profits pay the debt. By this title also are those lands ac- quired, which are sold at tax-sales to satisfy- the duty owing TITLE TO ESTATES IN REAL PROPERTY. 81 to the state, or at sales under a decree enforcing a lien or an assessment. In all these cases, the estate taken by the creditor or purchaser is subject to all the burdens existing upon it in the hands of the debtor, unless there be some special provision of law to the contrai-y. Read 3 Bl. Comm., pp. 418, 419. 3 Cruise Dig., Tit. xiv, §§ 16-18. 4 Kent Comm., Lect. Ixvi, pp. 428-438. Will. R. P., pp. 77-80. 2 Wash. E. P., B. i, Ch. xv. 3 Wash. R. P., B. iii, Ch. iii. Sec. 2. § 136. Of Title by Judicial Decree. Title hy judicial decree is the title by which a person acquires an estate in real property as the direct result of judicial action. In some States, a Court of Equity has power to pass an estate from one person to another, with- out any act or voluntary acquiescence on the part of him from whom the estate passes. Thus, by the decree of a court foreclosing a mortgage, the equitable estate of the mort- gagor is divested, and the whole estate vests in the fore- closing mortgagee. Thus also, by the decree of a court having jurisdiction in bankruptcy, the estate of the bank- rupt is vested in his trustee. The estate of a guardian, who is appointed by a court, in the real property of his ward, or of an executor or administrator, who receives power from a Court of Probate to convej' the land of the intestate, is of substantially the same origin. In these cases, as in those of preceding titles, the estate acquired is only that of the former owner, with its attendant burdens and liabilities. Read 2 Bl. Coram., pp. 159, 285, 286. 2 Cruise Dig., Tit. xv, Ch. vi, §§ 1-3. 2 Wash. R. P., B. i, Ch. xvi, Sec. 10, §§ 10, 15. 6 82 ELEMENTARY LAW. § 137. Of Title by Eminent Domain. Titk hy eminent domain is the title by wliich the govern- ment acquires an estate in the real property of an indi- vidual, when the same is necessary for public use. The right of eminent domain, or the right to talce private property for public use, is inherent in every government. A government also has power to exercise this right in favor of individuals or corporations engaged in prosecuting works of a quasi public nature, such as railroad, turnpike, and canal companies. But when property is so taken full compensation must be made therefor to its owner, and that mode of taking it, which is prescribed by law, must be strictly followed. Kead 2 Kent Comm., Lect. xxxiv, pp. 339, 340. Cooley Const. Lim., pp. 523-571. 2 Dillon Mun. Cor., §§ 583-625. § 138. Of Title by Grant and Devise. Title by act of the parties is of two kinds : Title by Grant, and Title by Devise. Title hy grant is the title by which a person acquires an estate in real property, through the present voluntary act of the previous owner of such property. Title hy devise is the title bj' which one man acquires an estate in the real property of another, after the death of that other and by his voluntary act. Kead 2 Bl. Coram., pp. 287-294. 4 Cruise Dig., Tit. xxxii, Ch. i, § 18. 4 Kent Coram., Lect. Ixvii, p. 441. § 139. Of Title by Public Grant. Title by grant is of two kinds : Title by Public Grant, and Title by Private Grant. Title by puhlic grant is the title by which a person acquires an estate in i-eal property. TITLE TO ESTATES IN EEAL PROPERTY. 83 which had previously belonged to the government, either of the United States or of one of the individual States. The fee of all unsold lands is either in the United States, or in the State where the lands are situated ; and such lands may be granted by the government to which they belong, either by special act of the legislature, or by a proceeding authorized by the general statutes. In the latter case, the transfer is usuallj- made by an instrument called a Patent^ signed hy a person dulj' authorized for that purpose, and sealed with the great seal of the state. The terms of this patent, when doubtful, are construed in favor of the government and against the grantee, ex- cept when the lands have been granted upon valuable con- sideration, in which case the rule is reversed. A patent, regularly issued, is conclusive evidence of title, and, when two legal patents conflict, the elder will prevail. Kead 3 Kent Comm., Lect. li. 3 Wash. K. P., B. iii, Ch. iii, Sec. 1. § 140. Of Title by Private Grant. Deeds. Tith hy private grant is the title bj' which one man acquires an estate from another, during the lifetime of that other and by his voluntary act. The instrument by which an individual convej's an estate to another, to take effect during the lifetime of the grantor, is called a deed. A deed is a writing sealed and delivered between the parties. The material upon which it is written must be parchment or paper. It must be made by a party able to contract and, where obligations are imposed by the deed on the grantee, to a party also able to contract. It must be upon some consideration ^ either good, (as love and affection), or valua- ble, (as money or other propertj') . The terms of the deed must be legally and orderly set forth. It must be free from any erasures and interlineations which are not explained 84 ELEMENTARY LAW. in writing on the face of the deed itself. It must also be sealed and delivered. In some of the States, signing by the grantor, the attestation of his signature by one or more witnesses, and his acknowledgment of the instrument as his deed , before a magistrate, are necessarj'. The public recording of a deed is not essential to its validity, but is designed to protect the grantee against the claims of the grantor's creditors, and of his subsequent honajide purchas- ers or mortgagees. Read 2 Bl. Comm., pp. 295-298, 30.5-808. 4 Cruise Dig., Tit. xxxii, Ch. i, § 19; Ch. ii, §§ 1, 2, 48, 37, 61, 73, 80, 93. 4 Kent Coram., Lect. Ixvii, pp. 450-459. Will. B,. P., pp. 137, 138,141: 3 Wash. K. P., B. iii, Ch. iv. See. 1, 2. § 141. Of Indentures and Deeds-Poll. Deeds, as to their parties, are of two kinds : Indentures and Deeds-Poll. An indenture is a deed executed by two or more parties, and by which they contract reciprocal obli- gations toward each other. A deed-poU is a deed executed only by the grantor. Read 2 Bl. Coram., pp. 295, 296. 4 Cruise Dig., Tit. xxxii, Ch. i, §§ 23-28. Will. R. P., pp. 139, 140. 3 Wash. R. P., B. iii, Ch. iv. Sec. 2, § 47. § 142. Of Original and Derivative Deeds. Deeds, as to their effect, are of two kinds : Original and Derivative. An original deed is a deed which creates an estate. A derivative deed is a deed which modifies an es- tate already created. Original deeds are of eight kinds : (1) Feoffment, creating a fee-simple ; (2) Gift, creating a TITLE TO ESTATES IN REAL PROPERTY. 85 fee-tail ; (S) Grant, creating an estate in incorporeal real property ; (4) Lease, creating anj^ estate less tiian that of the grantor ; (5) Exchange, creating mutual estates in consideration of each other ; (6) Partition, creating es- tates in severalty out of estates in joint-tenancy or in common ; (7) Bargain and sale, creating any freehold estate ; (8) Covenant to stand seised to uses, also creating any freehold estate. Of these, the first six were known to the common law, the last two arose under the statute of uses. Derivative deeds are of five kinds : (1) Release, which conveys to the present particular tenant the estate in remainder or reversion ; (2) Surrender, which conveys the present particular estate to the remainder-man or re- versioner ; (3) Confirmation, which renders a voidable estate sure and unavoidable ; (4) Assignment, which trans- fers the whole of an existing estate ; (5) Defeazance, which accompanies another deed, and declares certain conditions upon which such deed is to be defeated. Read 2 Bl. Comm., pp. 310-327, 838, 339. 4 Cruise Dig., Tit. xxxii, Ch. iv, §§ 1-3, 37-45; Ch. V, § 1; Ch. vi, §§ 1, 15, 20; Ch. vii, §§ 1, 15, 25; Ch. ix, §§ 4-8 ; Ch. X, §2; Ch. xi, §1. 4 Kent Comm., Lect. Ixvii, pp. 480-496. Will. K. P., pp. 130-143, 167, 168, 170. 3 Wash. R. P., B. iii, Ch. v. See. 1, 2. 143. Of Deeds in the United States. In the United States, the mode of granting estates is by no means uniform. Many of the common law convey- ances are practically obsolete. In some States, the ancient form of a feoffment, or a release, are alone employed. In others, a conveyance by bargain and sale, or lease and release, is still practised. The tendency is toward great 86 ELEMENTARY LAW. simplicity of form, and to a reduction of the number of instruments, as far as consistent with the safety and cer- tainty of estates. Kead i Kent Comm., Lect. Ixvii, pp. 489, 490, 495. 3 Wash. K. P., B. ill, Ch. v, Sec. 3. 144. Of the Parts of a Deed. ITie parts of a deed are eight: The Premises, describ- ing the parties, the consideration and the property ; The Habendum, describing the estate granted ; The Tenendum, declaring the tenure on which the estate is to be held ; The Reddendum, describing the matters reserved to the grantor out of the estate granted ; The Oonditions ; The Covenant of Warranty ; The other Covenants ; The Conclusion, embracing the execution, attestation, and acknowledgment. Not all these parts are necessary in every deed, but when necessary they should occupy their proper relative positions. Kead 2 Bl. Comm., pp. 298-804. 4 Cruise Dig., Tit. xxxii, Ch. ii, §§ 62-71. 4 Kent Comm., Lect. Ixvii, pp. 460-480. 3 Wash. K. P., B. iii, Ch. v, Sec. 4, 5. § 145. Of the Construction of Deeds. A deed is construed according to the intent of the parties, so far as the same can be ascertained from the terms of the deed itself. When the terms are doubtful, it is con- strued in favor of the grantee and against the grantor. A grant of a principal thing carries whatever incidentals may be necessary to its enjoyment, provided they belong to the grantor. Read 2 Bl. Coram., pp. 379-381. 4 Cruise Dig., Tit. xxxii, Ch. xix, §§ 1-25, 31, 40. 4 Kent Coram., Lect. Ixvii, pp. 467, 468. 3 Wash. R. P., B. iii, Ch. v, Sec. 4, §§ 24-59, 61-63. TITLE TO ESTATES IN REAL PROPERTY. 87 § 146. Of the Execution of Deeds. A deed may be made by the grantor Mmself or by his duly authorized attorney. "When the grantor is unable to read, the deed should be read to him before its execution, though a grantor is alwaj's presumed to know the contents of his deed, and cannot avoid it after deliverj-, except for fraud practised upon him in procuring it. Read 2 Bl. Comm., pp. 304-308. 4 Cruise Dig., Tit. xxxii, Ch. ii, § 72. 3 AYash. R. P., B. iii, Ch. iv, Sec. 2, §§ 12, 13, 17, 18. § 147. Of the Delivery of Deeds. The estate passes by the delivery of the deed, and unless the deed be delivered during the lifetime of the grantor it will be of no effect. But the delivery maj^ be made either to the grantee himself, or to some third person with in- structions to deliver the deed to the grantee upon the ful- filment of some condition, or at some future time, or at the death of the grantor ; and, when it is finally delivered to the grantee and accepted by Mm, 'the delivery is re- garded by law as having taken place at the date of its delivery to the third person by the grantor. Read 2 Bl. Comm., p. 307. 4 Cruise Dig., Tit. xxxii, Ch. ii, §§ 80-92. 4 Kent Comm., Lect. Ixvii, pp. 454-456. Will. R. P., p. 138. 3 Wash. R. P., B. iii, Ch. iv, Sec. 2, §§ 20-46 a. § 148. Of a Will of Lands. The instrument, by which one individual conveys to an- other an estate in real property, to take effect after the death of the former, is called a will. A will devising lands 88 ELEMENTARY LAW. must be in writing, and signed by the testator. In nearly all the States, it must be witnessed by persons who sub- scribe their names, as such witnesses, in the testator's pres- ence. In some of the States, it must also be sealed. The testator, at the time the will is made, must be of the age re- quired by the law of the State ; must be of sufficient mind and memory to understand the nature of his property, the proper objects of his bounty, and the character of the act in which he is engaged ; and must not be under legal dis- ability. Read 2 Bl. Comm., pp. 376-379, 496-503. 6 Cruise Dig., Tit. xxxviii, Ch. i, §§ 10, 1.3-15; Ch. ii,§§2, 6,7,10,12; Ch. v, §§ 2, 4, 6-9, 14. 4 Kent Comm., Lect. Ixviii, pp. 501, 505, 513-520. Will. R. P., pp. 186-190. 3 Wash. R. P., B. iii, Ch. vi, §§ 1-16. § 149. Of the Revocation of 'Wms. A will may be revoked by the testator, during his life- time, either by destroying it, or by making a later will containing words of revocation, or by his marriage and the birth of a child. The devise of specific property is also revoked, if the testator alienate such property before his death. Read 2 Bl. Comm., p. 376. 6 Cruise Dig., Tit. xxxviii, Ch. vi, §§ 1, 3, 39, 53, 77. 4 Kent Comm., Leot. Ixviii, pp. 520-534. Will. R. P., pp. 191-194. 3 Wash. R. P., B. iii, Ch. vi, §§ 32-42. 1 Redtield Wills, Ch. vii. TITLE TO ESTATES IN REAL PROPERTY. 89 § 150. Of the Construction of "Wms. A will is construed according to the intent of the testa- tor, and, in order to do this, courts will sometimes changa the words of the will, by substituting one for the other. The construction is also made upon the entire will, not merely upon disjointed parts of it, and where there are two clauses, repugnant to each other, the latter will control. Kead 2 BI. Comra., pp. 379-382. 6 Cruise Dig., Tit. xxxviii, Ch. ix, §§ 1-12, 15, 18, 25-27. 4 Kent Comm., Lect. Ixviii, pp. 534-542. Will. R. P., p. 195. 3 Wash. R. P., B. iii, Ch. vi, §§ 28-30. 1 Redfield Wills, Ch. ix. 1 Jarman Wills, Ch. xv, xvi. 2 Jarman Wills, Ch. li. § 151. Of Devisable Estates. The owner of any estate in fee-simple, whether legal or equitable, may by devise dispose of his whole estate, or create lesser estates out of it at his pleasure. The estates so created vest immediately on the death of the testator, and, when the will is admitted to probate, it relates back to that event. Kead2Bl. Comm., p. 502. 6 Cruise Dig. , Tit. xxxviii, Ch. i, § 18 ; Ch. iii, §§ 1- 5,7. 4 Kent Coram., Lect. Ixviii, pp. 510-513. 3 Wash. R. P., B. iii, Ch. vi, §§ 19, 31. 1 Jarman Wills, Ch. iv. 90 ELEMENTARY LAW. CHAFrER XI. OF ESTATES IN PEKSONAL PEOPEETT. § 152. Of Chattels. Chattels Real. Chattels Personal. Personal property is also known as chattels. Chattels, as to their legal character, are of two kinds : Chattels Eeal, and Chattels Personal. A chattel real is a personal estate in real property, and is so called because the estate is a chattel, though the propertj^ be real. A chattel personal is any property whatever, except real property or some estate therein. Read 2 Bl. Comm., pp. 384-888. Will. R. P., pp. 1-3. 2 Kent Comm., Lect. xxxv, pp. 340-342. § 153. Of Chattels Personal. Choses in Possession and in Action. Chattels personal are commonly called choses, and are of two kinds : Choses in Possession, and Choses in Action. A chose in possession is a chose of which the owner has the actual possession and enjoyment. A chose in action is a chose, to the possession of which the owner has a right, and yet of which he has not the actual possession. It is so called because an action, or suit at law, may be neces- sary in order to reduce it into actual possession. The amount of money due b3' one man to another on a debt, and the damages to which the injured part^- is entitled on a breach of contract, are instances of choses in action. The same name, chose in action, is, however, frequentlj^ applied ESTATES IN PEESONAL PEOPEETY. 91 to the incorporeal right of the creditor to collect his debt, and to the right of the promisee to damages against the promisor. By a still greater latitude of speech, it is some- times used to denote the written evidences of these in- corporeal rights, such as bills, notes, bonds, and other instruments. Read 2 Bl. Comm., pp. 389, 397. Will. P. P., pp. 4-6, 9, 148. 2 Kent Comm., Lect. xxxv, p. 351. § 154. Of Estates in Chattels Personal. Estates in chattels personal are of two kinds : Absolute and Qualified. An absolute estate in chattels personal is such an estate as cannot be lost without the act or default of the owner. A qualified estate in chattels personal is such an es- tate as may be lost without the act or default of the owner. Most estates in chattels personal are absolute estates. Read 2 Bl. Comm., p. 389. 2 Kent Comm., Lect. xxxv, p. 347. § 155. Of Qualified Estates in Chattels Personal. The liability of an estate in chattels personal to be lost, without the act or default of the owner, arises either from the nature of the chattel itself, or from the existence of other estates in the same chattel. Certain kinds of per- sonal property are, in their very natui'e, incapable of ab- solute ownership. Such are the elements of air, light, and water, and animals fera naturce. These belong to a man while they are in his actual possession, but, in the course of nature or by their own volition, they may escape from him, and when they do so his estate in them is gone. Other kinds of personal property are capable of absolute 92 ELEMENTARY LAW. ownership ; but while in these one man may have an ab- solute estate, which he may, at any time, assert to the ex- clusion of all others, another man may have, temporarily, a special estate therein, liable to be defeated by the assertion of the absolute estate. Such a special, or quali- fied, estate is that of the borrower, hirer, or pledgee of a chattel personal, of a common carrier in the goods carried, or of a sheriff in chattels attached or levied on in execu- tion. Read 2 Bl. Comm., pp. 389-396. Will. P. P., pp. 21-30. 2 Kent Comm., Lect. xxxv, pp. 347-330. § 156. Of the Tenure, Time, and Tenancy of Estates in Chattels Personal. A chattel, whether real or personal, is not inheritable, and no estate in fee, as such, can be created therein. The absolute ownership of a personal chattel is, however, an- alogous to an estate of fee-simple in lands, and the person, having such ownership, may grant to another an estate in such chattel, for life, for years, or at will. Particular es- tates, with remainder following, may also be created in chattels personal, wherever the use of such chattels does not consist in their consumption. Estates in chattels per- sonal may also be held in severalty, joint-tenancy, or in common, in the same manner, and subject to the same general rules, as in estates in real property. Kead 2 Bl. Comm., pp. 398, 399. Will. P. P., pp. 186-222. 2 Kent Comm., Lect. xxxv, pp. 350, 852-334:. TITLE TO ESTATES IN PERSONAL PEOPERTY. 93 CHAPTER XII. OF THE TITLE TO ESTATES IN PEKSONAI, PEOPEETT. § 157. Of Title by Prerogative. Title to estates in chattels, real or personal, is of three kinds : Title by operation of law ; Title by the sole act of the present owner ; and Title by the joint act of the present and the former owner. Title by operation of law is of five kinds : Title by Prerogative ; Title by Forfeiture ; Title by Succession ; Title by Marriage ; and Title by Judicial Decree. Title hy prerogative is the title bj' which the gov- ernment acquires an estate in such private personal prop- erty as may be necessary for the public use. Bj' a right, akin to that of eminent domain, a government may take personal propertj', whenever wanted for public use, upon making due compensation therefor. By the right of taxa- tion, a right also inherent in everj^ government, imposts and duties may be levied upon its subjects, so far as maj' be necessary to carry on the functions of such government. Goods taken from the enemy in time of war, goods waived or scattered by a thief in his flight when no owner can be found, wrecks found at sea or on shore when no owner appears, estraj's or cattle whose owner is unknown, also usually vest in the state, and may be granted by it to indi- viduals, either by some special act or by provisions in the general statutes. All such property is acquired by pre- rogative. Read 1 Bl. Comm., pp. 290-299. 2 Bl. Comm., pp. 408-411. 2 Kent Comm., Lect. xxxvi, pp. 357-360. Cooley Const. Lim., pp. 479-521. 94 ELEMENTARY LAW. § 158. Of Title by Forfeiture. Title hy forfeiture is the litle by which an estate in per- sonal property is acquired as a consequence of some fault or crime on the part of its former owner. By this title fines and penalties for crime, and in some cases the implements of crime, vest in the government. Conditional estates in chattels, as in real property, may be forfeited by breach of condition ; and the misuse of a chattel, by a person hav- ing a qualified estate therein, wiU sometimes determine his estate in favor of the absolute owner. Read 2 Bl. Comm., pp. 420, 421. 2 Kent Coram., Lect. xxxvii, pp. 385-387. 1 HiU. Torts, Ch. i, §§ 20, 21. § 159. Of Title by Succession. Title hy succession is the title by which the personal rep- resentatives or successors of a former owner of personal property acquire an estate in the same. Such is the title by which the successive members of a corporation acquire its property and franchises from their predecessors. In judgment of law, a corporation never dies, and property, once vested in it, continues to belong to it, although the persons, who composed it at the time such property was acquired, have ceased to be its members. "When new members succeed the old, they therefore succeed to the property and corporate rights which their predecessors, as such members, obtained and enjoj'ed, and the title of such new members is a title bj' succession. Bv the same title also are the remaining goods and chattels of a deceased intestate vested in his personal representatives, after ad- ministration on his estate, and the distribution thereof. Read 2 Bl. Comm., pp. 430-433, 515-520. 2 Kent Comm., Lect. xxxvii, pp. 420-436. TITLE TO ESTATES IN PERSONAL PROPERTY. 95 160. Of Title by Marriage. Title by marriage is the title by which a husband ac- quires an- estate in the personal property of the wife, or by which the wife acquires an estate iu the personal property of her husband. The entire personal estate of the wife was formerlj' vested, by her marriage, in the husband. Her chases in possession became absolutely and immediately his. Her choses in action became his if reduced bj- him to pos- session, or in any other way converted bj' him to his separate use. Her chattels real he could dispose of at his pleasure, or they might be taken for his debts. The rents and profits of her real estates were also his, as well as all the avails of her personal skill and labor. The wife, on the other hand, acquired no rights in the personal prop- erty of the husband during the coverture, except to those articles of clothing and ornament (called her parapherna- lia) , which were purchased by him for her use. After the cessation of the coverture by his death, she became enti- tled, if he died intestate, to succeed to a certain propor- tion of his personal estate. In most of the States, these rules of the common law have been greatly modified by statutes. Kead 2 Bl. Comm., pp. 433-436, 515. Will. P. P., pp. 273-284. 2 Kent Comm., Leet. xxviii, pp. 130-143. Reeve Dom. Rel., pp. 1-27, 87-39, 60-63. Schouler Dom. Rel., pp. 111-142, 158-163, 168-175. § 161. Of Title by Judicial Decree. Title by judicial decree is the title by which a person ac- quires an estate in personal property, as the direct result of judicial action. When the owner of personal property has recovered and collected damages, in an action of tres- pass or trover, from one who has wrongfully dispossessed 96 ELEMENTARY LAW. him of such property, the defendant in such action be- comes the owner of such property, by virtue of the judg- ment and execution against him. Damages recovered in an action of tort, and costs or penalties recovered in any form of action, are acquired by the same title. Upon the involuntary bankruptcy of a tradesman, his personal estate is transferred to his assignee, by the judicial action which determines him to be bankrupt and appoints his assignee. The administrator of the estate of a deceased intestate becomes, for the time being, the owner of such decedent's personal propertj', by virtue of the decree of the probate court appointing him to administer tliereon ; and a guar- dian, appointed by a court, derives his title to the personal estate of his ward from the same source. Read 2 Bl. Comm., pp. 436-439, 485, 486. Will. P. P., pp. 42, 47, 258. 2 Kent Comm., Lect. xxxvii, pp. 387, 388,399,408. 1 Plill. Torts, Ch. i, §§ 40, 41. 3 Pars. Cent., Part ii, Ch. xii. Sec. 8, 9, 10. § 162. Of Title by Occupancy. Title bj- the sole act of the present owner is of three kinds : Title by Occupancy ; Title by Accession ; and Title b}' Creation. Title by occupancy is the title bj' which a per- son acquires an estate in such personal propertj' as, at the time of such acquisition, belonged to no cue. The ele- ments of light, air, and water, animals /e?-® natures, goods abandoned and found on the surface of the earth, are the principal classes of property acquired by occupancy. Eead 2 Bl. Comm., pp. 400-404. 2 Kent Comm., Lect. sxxvi, pp. 855-360. TITLE TO ESTATES IN PERSONAL PEOPERTY. 97 § 163. Of Title by Accession and Confusion. Title by accession is the title by which the owner of per- sonal property acquires an estate in such other personal property, as is naturally or artificially produced bj', or united to, his own. The owner or hirer of animals is en- titled to their progeny produced during his ownership or term. When materials, belonging to one person, are used in the construction of an article, \>y another person who furnishes the principal materials, the article constructed belongs to the latter. If an artist paints a picture on the canvas of another, the whole belongs to the artist. In these, and all other instances, the owner of the principal article becomes the owner of the accession. Akin to accession is confusion, which occurs when one person wil- fullj' so mingles his own goods with those of another, that they cannot be distinguished from each other. In such cases, if the intermixture was by consent, each has his pro rata interest therein. But if the intermixture was not by consent, the wrong-doer loses his property, and the other becomes entitled to the whole. Read 2 Bl. Comm., pp. 404, 405, 407. 2 Kent Comm., Leet. xxxvi, pp. 360-365. 2 Pars. Cont., B. iii, Ch. xi, Sec. 5, pp. 134-137. § 164. Of Title by Creation. Tith hy creation, is the title by which a person acquires an estate in such personal property as owes its existence or value to his skill and labor. The principal classes of property acquired by this title are inventions and literarj' property. An invention is any new and useful art, ma- chine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not before known and used. 7 98 ELEMENTARY LAW. Literary property consists of the sentiments and language of books or otlier writings, the original designs of maps, charts, prints, cuts, or engravings, and the arrangement and composition of pieces of music. Both inventions and literary propertj' belong solely to the author, as long as they are kept within his exclusive possession, but when circulated abroad, with his consent, become common prop- erty, and subject to the free use of the community. For the protection and encouragement of authors, however, the law now so provides that the benefits of their inventions or literary compositions may be secured to them, and that the public may, at the same time, enjoy the results of their literary or inventive skill. This is done, in the case of inventions, by what is called & patent, which is a grant by the state of the exclusive privilege of making, using, and vending, and authorizing others to make, use, and vend, an invention ; and, in the case of literary propertj', by what is called copyright, which is a grant of the exclusive right of printing, reprinting, publishing, and vending the productions, in which such literary property' is contained. In this countrj', both patents and copyrights are granted by the United States, under the provisions of the Acts of Congress relating thereto. Read 2 Bl. Comm., pp. 405-407. Will. P. P., pp. 171-185. 2 Kent Comm., Leot. xxxvi, pp. 365-384. 2 Pars. Cont., B. iii, Ch. xiii, xiv. § 165. Of Title by Gift. Title by the joint act of the present and the former owner is of three kinds : Title by Gift ; Title by Testa- ment ; and Title by Contract. Title by gift is the title by which a person acquires an estate in personal property, through the immediate, A'oluntary, and gratuitous transfer TITLE TO ESTATES IN PERSONAL PEOPEUTY. 99 thereof to him, by its former owner. Gifts are of two kinds ; gifts inter vivos, and gifts causa mortis. A gift inter vivos has no reference to the future, but goes into immediate and absolute effect. A gift causa mortis is a gift made by the donor in his last illness, or in contempla- tion and expectation of death, to be effective if he then dies, but, if he recovers, to be void. To both these kinds of gifts delivery is essential. If the property is subject to actual delivery, it. must be so delivered. If not subject to actual delivery, there must be some act equivalent to it, whereby the donor parts not only with the possession, but with the dominion, of the property. If the gift be a chose in action it must be transferred by an assignment, or by some act equivalent thereto. When a gift is once per- fected it is irrevocable, unless prejudicial to creditors, or unless the donor was under a legal incapacity, or was cir- cumvented by fraud. Head 2 Bl. Comm., pp. 440-442, 514. Will. P. P., pp. 32-34, 287. 2 Kent Comm., Lect. xxxviii, pp. 437-448. 1 Pars. Cont., B. i, Ch. xv. 2 Redfield Wills, Ch. xii. § 166. Of Title by Testament. Title by testament is the title by which one person ac- quires an estate in personal property from another, after the death of that other, and by his voluntary act. A tes- tament is a will operating upon personal property alone. Such a will was formerly good when made by parol, in which case it was called a nuncupative will. In later times, parol wills were discouraged, and justified only in cases of great necessity, as of a soldier in actual militarj'^ service, or of a sailor while at sea. The property disposed of in a testament is called a legacy, and the person, to 100 ELEMENTARY LAW. whom it is given, is known as a legaiee. Although given absolutely by the will, such legacy is nevertheless condi- tional in its character ; for if the debts due by the testator exceed the amount provided by him for their payment, the legacies may be abated, in part or entirely, according to the amount required to pay the debts. If a legatee dies before the testator, the legacy is lost or lapsed, and sinks into the residue of the estate. The assent of the executor is necessary to perfect the legal title of the legatee, and where the executor unreasonably withholds such assent, he may be compelled to yield it by decree of a court of equity. Legacies are ordinarily payable one year after the decease of the testator. Read 2 Bl. Comm., pp. 489-520. Will. P. P., pp. 233-255. 4 Kent Comm., Lect. Ixviii, pp. 516-518. 1 Kedfield Wills, Ch. vi. 2 Eedfleld Wills, Ch. xiii, Sec. 8, 14, 16, 17. § 167. Of the Requisites of a Testament. The requisites of a will of personal property, as well as the mode and time of the vesting and payment of legacies, are now usually determined by statute in the different States. The rules, concerning the execution and construc- tion of a written testament, are generally the same as those governing a devise. Read 1 Redfield WiUs, Ch. ii, iv, v, vi, vii, ix. § 168. Of Title by Contract. Title hy contract is the title by which a person acquires an estate in personal property, through the transfer thereof to him by another person, for a valuable consideration. A TITLE TO ESTATES IN PERSONAL PROPERTY. 101 contract is an agreement between two or more persons, upon sufficient consideration, to do or not to do a particu- lar thing. Four things are necessary thereto : (1) Parties able to contract ; (2) A sufficient consideration ; (3) A subject-matter to be contracted for ; (4) An actual con- tracting by proposal on the one side and acceptance on the other. Kead 2 Bl. Comm., p. 442. 1 Pars. Cont., Prelim. Ch.,Sec. 2, 3. § 169. Of the Parties to a Contract. Any person, not debarred therefrom by law, may make a contract. An infant cannot bind himself by any con- tract except for necessaries. A married woman, not aban- doned by her husband, can make no contract except as to her sole and separate estate, unless empowered so to do by statute. Insane persons, and. persons under guardianship, are also usually unable to contract. Kead 1 Bl. Comm., pp. 442-445, 465, 466. 2 Bl. Comm., pp. 290-293. 2 Kent Comm., Lect. sxviii, pp. 150-161 ; Lect. xxxi, pp. 234-243; Lect. xxzix, pp. 450-453. 1 Pars. Cont., B. i, Ch. xvii. Sec. 1,3, 5-9 ; Ch. xviii, xix. § 170. Of the Consideration of Contracts. The consideration of a contract must be both valuable and lawful. Any benefit arising to the partj' promising, or any prejudice to the party to whom the promise is made, is a sufficient consideration. Mutual promises, made at the same time, are sufficient considerations for each other ; 102 ELEMENTARY LA"W". and a subsisting legal obligation to do a thing is a suf- ficient consideration for a promise to do it. Kead 2 Bl. Comm., pp. 444-446. Will. P. P., pp. 62-66. 2 Kent Comm., Lect. xsxix, pp. 463-468. 1 Pars. Cont., B. ii, Ch. i. § 171. Of the Subjeot-Matter of Contracts. The sutject-matter of a contract may be either some es- tate in real property, some visible and tangible chattel, some exercise of skill and labor, some forbearance of an existing right, or anj' other matter beneficial to the person to whom it is to be given or for whom it is to be done. In all cases, this subject-matter is property, whether it be a material object, or a mere right and obligation. Kead 2 Bl. Comm., p. 446. 1 Pars. Cont., B. iii, Ch. i, Prelim. Rem. § 172. Of the "Meeting of the Minds." The actual contract consists in the meeting of the minds of the parties upon the same thing, and in the same sense. In other words, the thing, intended to be proposed and actu- ally proposed on one side, must be, in all material respects, the very thing intended to be accepted and actually ac- cepted on the other. In the absence of this meeting of minds there can be no contract. Bead 2 Kent Comm., Lect. xxxix, p. 477. 1 Pars. Cent., B. ii, Ch. ii. § 173. Of Oral and 'Written Contracts. Statute of Frauds. Contracts may be either oral or in writing. "Where they are in writing and under seal, they are called specialties ; TITLE TO ESTATES IN PERSONAL PROPERTY. 103 when not under seal, they are called simple contracts. Cer- tain contracts are, by the Statute of Frauds, 29 Charles II. ,0. 3, required to he in writing. Among these are : (1) Con- tracts for the sale of anj' interest in lands ; (2) Contracts that cannot be performed within one year from their date ; (3) Contracts binding an executor or administrator to pay a debt of his decedent out of his own estate ; (4) Contracts to answer for the debt, default, or miscarriage of another ; (5) Contracts made upon consideration of marriage. The principal legal difference, between a contract under seal and one not under seal, is that in the former the seal im- ports a sufflcient consideration. Read Will. P. P., pp. 62, 66-70, 75. 2 Kent Comm., Lect. xxsis, pp. 450, 510-512. 1 Pars. Cont., Prelim. Ch., Sec. 3. 3 Pars. Cont., Part ii, Ch. v. § 174. Of Xizpress and Implied Contracts. Contracts are said to be express when the mutual promises of the parties are declared, in so many words, either orally or in writing. They are implied when the law presumes the existence of such promises from the acts or circum- stances of the parties. Eead 2 Bl. Comm., p. 443. Will. P. P., p. 61. 2 Kent Comm., Lect. xxxix, p. 450. § 175. Of Executed and Executory Contracts. Contracts are said to be executed when the thing, agreed to be done, has actually been performed. They are execu- tory when the thing to be done has not been performed. A mutual contract may thus be executed as to one party, and remain executory as to the other. Read 2 Bl. Comm., p. 443. 2 Kent Comm., Lect. xxxix, p. 450. 104 ELEMENTARY LAW. § 176. Of The Validity and Construction of Contracts. The validity and construction of contracts are governed by the kx loci contractus, or the law of the place where the contract is made and is to be performed. If made in one State and to be performed in another, the general rule is that the law of the State, where it is to be performed, will govern it. When a contract is broken, the remedy for such breach is governed by the lex fori, or law of the place where the suit is brought. Eead 2 Kent Coram., Lect. xxxix, pp. 453-463. 2 Pars. Cont., Part ii, Ch. i, ii. § 177. Of Contracts of Sale. The principal contracts, by which estates in personal property maj^ be acquired, are the following : Contracts of Sale ; Contracts of Bailment ; Contracts of Agency ; Con- tracts of Partnership ; Contracts of Insurance ; Contracts of Indorsement ; and Contracts of Guaranty or Suretyship. A contract of sale is a contract by which the ownership of some specific existing chattel is transferred from one per- son to another, in consideration of some specific price or recompense in value. Where this price or recompense is in mone}', the contract is a sale proper; where it is in goods, it is exchange or barter. All personal property which is bought and sold, or manufactured to order, and all loaned property, whose use consists in its consumption and for which a like quantity of the like property is to be returned, are acquired by this title. Read 2 Bl. Comm., pp. 446-451. Will. P. P., pp. 34-41. 2 Kent Comm., Leot. xxxix, pp. 468-477, 492-552, 1 Pars. Cont.,B. iii, Ch. iv. TITLE TO ESTATES IN PEESONAL PROPEETY. 105 § 178. Of Contracts of Bailment. A contract of bailment is a contract by which the possession of some specific existing chattel is transferred from one per- son to another in trust, in consideration that the trust shall be duly executed, and that the chattel itself shall be re- stored to the owner by the bailee, as soon as the purposes of the bailment shall be fulfilled. This contract is of five kinds : (1) Depositum, a bailment of a chattel to be kept for the bailor and returned upon demand without a recom- pense ; (2) Mandatum, a bailment of a chattel to one who undertakes, without recompense, to do some act for the bailor in respect to the thing bailed ; (3) Commodatum, a bailment of a chattel, for a certain time, to be used by the bailee without paj-ing for its use ; (4) Pignus, a bailment of a chattel by a debtor to his creditor to be kept by the creditor till the debt be discharged ; (5) Loeatio, a bail- ment of a chattel to one who is to enjoy the temporary use thereof and paj-, for such use, a reasonable compensation to the bailor, or who is to expend labor or services thereon and receive, for such labor or services, a reasonable com- pensation from the bailor. Read 2 Bl. Comm., pp. 451-453. Will. P. P., pp. 24-26. 2 Kent Comm., Lect. xl. 2 Pars. Cont., B. iii, Ch. xi. § 179. Of Contracts of Agency. A contract of agency is a contract by which one person appoints another to act for him in the transaction of some business, and by which that other undertakes to transact • such business properly, and to render an account thereof. Agents are of two kinds : general agents, who are appointed to do all the business of the principal of a particular kind or at a particular place, and whose acts bind the princi- 106 ELEMENTARY LAW. pal as long as they are within the general scope of his authoritj', even though they are contrary to his private instructions ; and special agents, who are appointed for a particular purpose and under a limited power, and whose acts do not bind the principal when they exceed that power. The contract of agency may arise from an express agreement, or it may be implied from the conduct of the parties. Read 2 Kent Comm., Lect. xli. 1 Pars. Cont., B. i, Ch. iii. § 180. Of Contracts of Partnership. A contract of partnership is a contract by which two or more persons unite their property or labor in some lawful business, and agree to divide the profits, or bear the loss, in certain proportions. By this contract each partner acquires an interest in all the partnership property, be- comes responsible for the partnership engagements, and is empowered, in transactions relating to the partnership, to bind by his acts the other partners as well as himself. Read 3 Kent Comm., Lect. sliii. 1 Pars. Cont., B. i, Ch. xii. Walker Am. Law, §§ 95-100. § 181. Of Contracts of Insurance. A contract of insurance is a contract by which one person, in consideration of a stipulated premium paid to him by another, undertakes to indemnify that other against certain injuries to his property, or to pay to him, or his legal repre- sentatives, a certain sum of money upon the occurrence of some specified event. Fire and marine insurance are con-' tracts to indemnify the assured against loss or damage to his property from fire, or from the perils and dangers of the sea. Life and accident insurance are contracts to pay cer- TITLE TO ESTATES IN PERSONAL PROPERTY. 107 tain sums of money, upon the death or accidental injury of some particular person. Besides these, there are other forms of contract, resulting in the existence of annuities or endowments, whicli are usually classed under the general name of insurance. Read WiU. P. P., pp. 133-136. 3 Kent Comm., Lect. xlviii, 1. 2 Pars. Cont., B. iii, Ch. xvii, xviii, xix. § 182. Of Contracts of Indorsement. Bills and Notes. A contract of indorsement is a contract by which the holder of a negotiable bill or note agrees with another per- son, to whom, at the same time, he transfers the right to the sum of money named in such bUl or note, that he will himself pay that sum to such person or his assigns, in case the prior parties to the bUl or note fail to pay it when it becomes due. A bill of exchange and a 'promissory note are both, in effect, written promises to pay a definite sum of money after a definite period of time. Such a bill or note is negotiable when made paj'able " to bearer," or " to or- der ; " in the former case, the rights arising under it being- transferred by mere delivery of the instrument itself, in the latter, by its indorsement and delivery. Indorsement con- sists in the writing, by the holder, of his name across the back of the bill or note ; and from this, when followed bj' delivery, the law implies (unless the contrary appears in writing in connection with the indorsement) an agreement, on his part, with all subsequent bona fide holders of the bill or note, that it shall be paid at maturity, provided the requisite demand be made, and notices given, by the person who shall then be the holder thereof. Read 2 Bl. Comm., pp. 466-470. Will. P. P., pp. 72-75. 8 Kent Comm., Lect. xliv, pp. 71-121. 1 Pars. Cont., B. i, Ch. xyi. 108 ELEMENTARY LAW. § 183. Of Contracts of Guaranty and Suretyship. A contract of guaranty or suretyship is a contract by ■which one person agrees with another to pay a debt, or discharge an obligation, due from some third person to that other, in case such third person shall fail to pay or discharge the same. This contract somewhat resembles that of indorsement, but it is not restricted, like that, to negotiable paper, nor are the rights and liabilities of the parties thereto, in all ijespects, the same. Read Will. P. P., pp. 98-100. 3 KentComm., Lect. xliv, pp. 121-124:. 2 Pars. Cent., B. iii, Ch. vii. § 184. Of Collateral Contracts. Debt. Warranty. In addition to these contracts, by which an estate in personal property may be originally acquired, there are others, collateral to or resulting from these, by which additional, though not independent, rights may be ob- tained. Such is the contract of warranty, by which the vendor of chattels agrees with the vendee that the chattels sold are of a given quality and quantity, and which is col- lateral to the contract of sale. Such also is the contract of debt, by which one person agrees to paj"^ to another a cer- tain sum of money ; and which results from a contract of sale where the price is not immediately paid, or from a contract of bailment whereby compensation becomes due to either party, or from any other contract, the fulfilment of which, on one side, creates an obligation, on the other, to pay a definite sum of money. Kead 2 Bl. Comm., pp. 451, 464-466. 8 Bl. Comm., p. 165. Will. P. P., pp. 293, 294. 2 Kent Comm., Lect. zzxix, pp. 478-481. 1 Pars. Cent., B. iii, Ch. v. EIGHTS OF HUSBAND AND WIPE. 109 CHAPTER XIII. OF THE RIGHTS ARISING FROM THE RELATION OF HUSBAND AND WIFE. § 185. Of the Contract of Marriage. The relation of husband and wife is created by marriage. In the eye of the law marriage is a civil contract, and, like any other contract, it requires parties able to contract, a sufficient consideration, a subject-matter to be contracted for, and an actual contracting. Read 1 Bl. Coram., p. 433. Reeve Dom. Rel., pp. 195, 196. Schouler Dom. Rel., pp. 22-25. 1 Bish. Mar. and Div., B. i, Ch. i. § 186. Of the Parties, Consideration, and Subject-Mat- ter of the Contract of Marriage. Any person may contract in marriage who is not de- barred therefrom by law. Persons so debarred are of four classes: (1) Those under age; i. e. males under fourteen and females under twelve ; (2) Those who have another lawful husband or wife living ; (3) Those within certain degrees of relationship ; i. e. all related linealljs and all related collaterally within the third degree ; (4) Those who are not of sound mind. The mutual prom- ises of the parties are the consideration of the contract of maniage. The suhject-matter of the contract is the rela- 110 ELEMENTARY LAW. tionship of husband and wife, with its entire duties and responsibilities as defined by law. Read 1 Bl. Comm., pp. 434r-439. 2 Kent Coram., Lect. xxvi, pp. 75-86. 2 Pars. Cont., B. iii, Ch. x, Sec. 4, pp. 81-83. Reeve Dom. Rel., pp. 200-204. Schouler Dom. Rel., pp. 26-38. 1 Bish. Mar. and Div., B. i, Ch. i, §§ 2, 3 ; B. iii, Ch. viii, is, s.vi, xviii, six, XX. Walker Am. Law, § 102. § 187. Of the Form of the Contract of Marriage. To the actual contract no specific form is made neces- sary by the common law. Both parties must freely con- sent thereto, and must express that consent per verba de presenti, or bj* words which denote an actual and present acceptance of each other as husband and wife. Public policy, however, requires that some fixed mode of cele- brating marriages should be observed, and the several States have, therefore, provided by statute for the form in which the contract should be made. Read 1 Bl. Comm., pp. 439, 440. 2 Kent Comm., Lect. xxvi, pp. 86-93. 2 Pars. Cont., B. iii, Ch. x. Sec. 4, pp. 74-81. Schouler Dom. Rel., pp. 39-50. 1 Bish. Mar. and Div., B. iii, Ch. xi, xii, xiii, xiv. Walker Am. Law, § 102. § 188. Of Divorce. The relation of husband and wife can be dissolved either by death or by divorce. The death of either party puts an end to the relation, and leaves the survivor free to RIGHTS OF HUSBAND AND WIFE. Ill enter into another contract of marriage. The form of divorce known as divorce a vinculo has the same effect. Divorce a mensa et thoro is only a legal separation of the parties, leaving the relation itself intact. The methods and grounds of divorce, and its effect upon the mutual rights of property of the husband and wife, are matters generally regulated by statute. Read 1 Bl. Comm., pp. 440, 441. 2 Kent Comm., Lect. xxvii, pp. 95-118, 125-128. 2 Pars. Cont., B. iii, Ch. x, Sec 5. Reeve Dom. Rel., pp. 205-210. Schouler Dom. Rel., pp. 295-302. 1 Bish. Mar. and Div., B. i, Ch. ii. § 189. Of the Merger of the Legal Ezistence of the Wife in that of the Husband. By marriage the husband and wife become one person at law, and, for most purposes, her legal existence and authority are merged in his. No contracts can be made between them without the intervention of trustees, and the contracts, which subsisted between them prior to the marriage, are dissolved. The wife cannot bind herself hy any contract made without her husband's consent, nor can she sue, or be sued, separately and apart from him. The husband is responsible for all debts due from the wife at the time of the marriage, and for all the torts and frauds committed by her during coverture. Any invasion of her right of personal security, or personal liberty, is an injury' to him, for vrhich he is entitled to redress in a suit at law ; and her private property, as we have already seen, vests in him either absolutely or temporarily, according to its nature or the mode in which he deals therewith. Courts of equity, however, recognize, to some extent, ike separate legal existence of the wife, and regard as valid the exercise 112 ELEMENTARY LAW. by her of powers which at law she does not possess. The statutes of different States have also changed, in many re- spects, the liability of the husband for the debts and torts of the wife, as well as his interest in and control over her estate. Read 1 Bl. Comm., pp. 442-444. 2 Kent Comm., Lect. xsviii, pp. 129, 143-146, 149- 181. 1 Pars. Cont., B. i, Ch. xviii, See. 1, 2, 4, 5. Reeve Dom. Rel., pp. 63, 64, 67-78, 86-91, 162- 173. Schouler Dom. Rel., pp. 62, 63, 69-75, 101-110, 187-239. § 190. Of the Rights of the Husband over the Wife. The rights of a husband, in and over his wife, are two : Obedience and Service. The husband has the legal con- trol of the person of his wife, and may put moderate re- straints upon her liberty, if her conduct be such as to require it. If he changes his domicil, it is her duty to fol- low him. K she elopes and abandons him without cause, he may compel her to return. But he has no right to chas- tise her or to use physical violence toward her, except so far as is necessary to prevent her from doing violence to himself or others. The services of the wife, and the result thereof, also belong to the husband, at common law; though in some States, by statute, he is entitled to the re- sult of her services only as a trustee, and holds them for her use. Read 1 Bl. Comm., pp. 444, 445. 2 Kent Comm., Leot. xxviii, pp. 181, 182. Reeve Dom. Rel., pp. 63, 65, 66. Schouler Dom. Rel., pp. 53-61, 242-250. Walker Am. Law, § 103. RIGHTS OF HUSBAND AND WIFE. 113 § 191. Of the Duties of the Husband toward the 'Wife. The rights of the wife, in and from the husband, are also two : Protection and Support. Whatever he may lawfully do in his own defence he may do, and is naturally obliged to do, in defence of her. It is his dutj' to provide her with necessaries according to her station in life, and, if he refuses to do so, she may contract for them in his name, and he will be bound thereby. If he abandons her, or drives her from him, he leaves or sends his credit with her, and she may still contract debts for her necessaries in his name. This right will be forfeited by the wife if she elopes with an adulterer, or if she abandons her husband without cause and does not repent and offer to return to him. But the husband is not bound to support the wife out of his family, if he provides for her and treats her prop- erly there ; and, in all eases, persons supplying a wife with necessaries, without the consent of the husband, are bound to mate inquiries, and, even after such inquiries, if they supplj' her they do it at their peril. Read 1 Bl. Comm., pp. 442, 443. 2 Kent Comm., Lect. xxviii, pp. 146-149. 1 Pars. Cont., B. i, Ch. xviii, Sec. 3. Keeve Dom. Rel., pp. 81-85. Schouler Dom. Rel., pp. 76-08. Walker Am. Law, § 104. 114 ELEMENTARY LAW. CHAPTER XIV. OF THE EIGHTS ARISING FROM THE RELATION OF PARENT AND CHILD. § 192. Of Legitimate and Illegitimate Children. The reciprocal rights of parent and child depend, in the first instance, upon the character of the child, as legiti- mate or illegitimate. A child is legitimate when it is born during, or within the usual period of gestation after, the coverture of its mother, and is not the offspring of an adul- terous intercourse. A child is illegitimate when it is not born during, or within a competent time after, the cover- ture of its mother, or is born during such coverture as the result of an adulterous intercourse. Read 1 Bl. Comm., pp. 446, 454-457. 2 Kent Comm., Lect. xxix, pp. 208-212. Reeve Dom. Rel., pp. 270-274. Schouler Dom. Rel., pp. 303-314. § 193. Of the Rights of Parents over Legitimate Chil- dren. The rights of parents, in and over their legitimate chil- dren, are two: Obedience and Services. The father has control of the person of his legitimate minor child, and may compel its obedience by any reasonable exercise of force, but has no right to abuse it, or to inflict any permanent injury upon it. The same rule applies to schoolmasters, and all those who stand in loco parentis. The father is also entitled to the services of his legitimate minor child and to all the results thereof, and such results are subject RIGHTS OF PARENT AND CHILD. 115 to the debts of the father, like any other portion of his es- tate. But a father may relinquish to his child the right to such services, after which they become the property of the child, even as against the creditors of the father. Read 1 Bl. Coram., pp. 452-454. 2 Kent Comm., Lect. xxix, pp. 203-208. 1 Pars. Cont., B. i, Ch. xvii, Sec. 2, pp. 310-312. Keeve Dom. Rel., pp. 288, 289, 290. Schouler Dom. Rel., pp. 332-350, 367-371. § 194. Of the Duties of Parents tcward Legitimate Children. The rights of legitimate children, in and from their par- ents, are also two : Protection and Support. A parent is the natural guardian of the person of his child. As such it is his duty to protect it from external injury, and, in its defence, he may lawfullj' do anything that he might do in defence of himself. He is also bound to support his minor child, and provide it with necessaries suitable to his own rank and condition in life. In these necessaries are in- cluded not merely shelter, food, and clothing, but medical attendance to the child when sick, and instruction in such branches of learning as are deemed essential for children of the same station. If the father fails to supply these necessaries to his children living under his protection, or if by his cruelty he drives his children from him, a third person may supply^ them and charge the father with the amount. In this case, however, as in that of a wife, the third person is bound to make due inquiry, and even after such inquiry, if he supplies the child, will do so at his peril. Read 1 Bl. Comm., pp. 446-4.'52. 2 Kent Comm., Lect. xxix, pp. 189-208. 1 Pars. Cont., B. i, Ch. xvii, Sec. 2. Reeve Dom. Rel., pp. 283, 286, 287. Schouler Dom. Rel., pp. 315-331. 116 ELEMENTARY LAW. § 195. Of the Duties of Parents toward Illegitimate Children. An illegitimate child has no rights, as against its parents, except that of support. An illegitimate child is said to be nullius Jilius, or the son of nobodj'. At common law he has no inheritable blood, and no name until, by reputation, he acquires one of his own. Both the mother and the putative father are liable for the support of such a child, so far as may be necessary to keep it from becoming a public burden, and this liability may be enforced against the father, either at the suit of the mother, or of the town or parish upon which the child has been thrown for support. Read 1 Bl. Comm., pp. 458, 459. 2 Kent Comm., Leot. xxix, pp. 212-217. 1 Pars. Cont., B. i, Ch. xvii, Sec. 10. Keeve Dom. Re]., pp. 274-282. Schouler Dom. Rel., pp. 379-388. § 196. Of the Reciprocal Rights and Duties of Parents and their Adult Children. The reciprocal rights of parents and children generally cease on the arrival of the children at the age of twenty- oae years. Yet if a child should, after that time, become a pauper and chargeable to the public, the parents would again be liable for its support ; and the liability of an adult child, in case its parents become paupers and chargeable, is the same. Read 1 Bl. Comm., p. 453. 2 Kent Comm., Lect. xxix, p. 206. 1 Pars. Cont., B. i, Ch. xvii, Sec. 2, p. 311. Reeve Dom. Rel., pp. 283-286. Schouler Dom. Eel., pp. 365, 366. EIGHTS OF GUAEDIAN AND WAED. 117 CHAPTER XV. OF THE EIGHTS ARISING FROM THE RELATION OF GUARDIAN AND WARD. § 197. Of Guardian and Ward. The relation of guardian and ward is of legal origin, and is intended partly to supply the place of, and partly to supplement, that of parent and child. A guardian is one, upon whom the care of the person or estate of a minor child has been conferred by law. Such minor child is called a ward. Read 1 Bl. Comm., p. 460. Keeve Dom. Rel. , p. 311. Schouler Dom. Rel., p. 389. § 198. Of G-uardians by Nature. Guardians are of two kinds : Guardians by nature, and Guardians by appointment. A guardian hy nature has the care of the person of the ward. The father of a child, and, in some States, after his death its mother, is its guardian by nature. Their control over the estate of the child is usu- ally regulated by statutes. Read 1 Bl. Comm., p. 461. 2 Kent Coram., Lect. xix, p. 220. Reeve Dom. Rel., pp. 315, 320. Schouler Dom. Rel. , pp. 390-392, 406. § 199. Of Guardians by Appointment. Guardians hy appointment are such as are appointed, by some competent authority, to take charge of the person or 118 ' ELEMENTAEY LAW. estate of a minor child. In some States, a father may, by his will, appoint such a guardian for his children, who is then called a testamentary guardian. Courts of probate and courts of equity also have the power to appoint guardians ; and every court, before which civil or criminal proceedings against an infant, who has no parent or guardian, may be pending, is bound to appoint a guardian ad litem over him, to counsel and protect him in matters pertaining to the suit. All guardians by appointment are under the control of the court, by which they were appointed, or which has jurisdic- tion over the estates of their wards, and may at any time be called to account by such court, or removed by it for cause. Read 1 Bl. Coram., pp. 462 note 8, 463. 2 Kent Comm., Leot. xxx, pp. 224-229. 1 Pars. Cont., B. i, Ch. ix, Sec. 1. Reeve Dom. ReL, pp. 315-318, 321. Schouler Dom. Rel., pp. 392-408, 405, 406-484. Walker Am. Law, §§ 110, 111. § 200. Of tlie Reciprocal Rights and Duties of Guar- dians and "Wards. The reciprocal rights of guardian and ward depend upon the nature of the guardianship. A guardian of the person has a right to the obedience of the ward but not to its services, and owes it the duty of protection but not of sup- port. A guardian of the estate is bound to support and ed- ucate the ward, out of the estate, in a manner suited to its station in life, but is not bound to protect it, or entitled to its obedience or services. His general duty is to manage the property of the ward with reasonable care and skiU, and to account for and restore such property to the ward, when his guardianship has ceased. Read 1 Bl. Comm., pp. 462, 463. Reeve Dom. Rel., p. 324. Schouler Dom. Rel., pp. 435, 448-460. EIGHTS OS" GUARDIAN AND WAED. 119 § 201. Of the Management of the Ward's Estate by the Gruardian. The management of the ward's estate, though left largely to the discretion of the guardian, is in some respects strictly regulated by law. A guardian has power to lease the real property of the ward, and receive the rents and profits thereof, but no power to seR it, unless directed so to do by an order of court. He may sell the personal propertj'^ without an order of court. He is not per- mitted to reap any benefit to himself from the ward's estate, other than is allowed him by the court as a remu- neration for his services. If he makes an advantageous speculation with the ward's money, or settles a debt due from the estate on beneficial terms, the advantage accrues to the ward. If he suffers any waste or damage to the real propertj^, or is guilty of negligence in regard to the personal property, he must make good the loss resulting therefrom. If he mingles the ward's monej' with his own, or lets it lie idle without cause, or purchases land therewith, he will be liable to pay over the same to the ward with in- terest, when his guardianship determines. Read 2 Kent Comm., Leot. xxx, pp. 228-231. 1 Pars. Cont., B. i, Ch. iz, Sec. 2. Keeve Dom. Eel., pp. 325, 326, 834-337. Schouler Dom. Eel., pp. 461-517. Walker Am. Law, § 113. § 202. Of the Cessation of the Relation of Guardian and Ward. The relation of guardian and ward ceases on the arrival of the ward at the age of twenty-one years. The guardian- ship of a female ward ceases, as to both her person and es- tate, when she marries an adult, and as to her person when 120 ELEMENTARY LAW. she marries a minor. The guardianship of a male ward continues after his marriage as to his estate, but not as to his person. Read 1 Bl. Comm., pp. 463, 464. 2 Kent Comm., Lect. xxx, pp. 225, 226; Lect. xxxi, p. 233. Reeve Dom. ReL, pp. 327, 328. Schouler Dom. Rel., pp. 423-426, 518, 519. BIGHTS OF MASTER AND SEBVANT. 121 CHAPTEE XVI. OF THE BIGHTS ARISING OUT OF THE EELATION OP MASTER AND SERVANT. § 203. Of Master and Servant. The relation of master and servant is practically the most important known to our law. A master is one who has a legal right of authority over another, by virtue of a contract subsisting between them. A servant is one who, by virtue of such contract, is subjected to authority. Read 1 Bl. Coram., pp. 422-425. 2 Kent Comm., Lect. xxxii, pp. 248, 258. Eeeve Dora. Rel., p. 339. Schouler Dom. Kel., pp. 599, 606-612. § 204. Of Apprentices. Servants are of two kinds : Apprentices and Hired Ser- vants. An apprentice is one who is bound out to a mas- ter, to learn some art or trade. When the person so bound out is an infant, the contract with the master must generally be made by the parent or guardian, with the con- sent of the infant, though there are cases in which an in- fant can bind himself. An apprenticeship can be created only by a deed, to which the infant is a party, and ceases at the death of the master, or on the arrival of the appren- tice at the age mentioned in the deed. It may also be determined by the decree of a competent court, or by a deed in which the parties mutually release each other. During the continuance of the apprenticeship, the master 122 ELEMENTARY LAW. has the control of the person of the apprentice, and may command his time and labor to any extent within the terms of the contract. All results of the services rendered by the apprentice, whether with or without the master's consent, also belong to the master. But the master can- not assign to another his rights over the apprentice, nor send him abroad, nor employ him in labor not contem- plated by the contract. The apprentice, on his part, has a right to be supported and instructed by his master, in the manner specified in the deed. Although the master cannot assign his rights to another, yet the contract, as a whole, may be assigned by consent of all parties, and a new master thus be substituted for the old. Read 1 Bl. Comm., pp. 426-428. 2 Kent Comm., Leot. xxxii, pp. 261-266. 2 Pars. Cont., B. ill, Ch. viii, Sec. 2. Keeve Dom. Rel., pp. 341-346. Sohouler Dom. Rel., pp. 604, 605. § 205. Of Hired Servants. A hired servant is one who enters into the service of another, under a contract to render certain specific ser- vices in consideration of the payment of certain wages. The master has a right to the obedience of such servant, in all matters within the scope of the contract, and may have redress at law, against the servant, for any negli- gence or misfeasance of which he may be guilty. Such servant has a right to continue in the employment of the master during the time for which he was hired, and to re- ceive the wages, or recompense, which the contract of ser- vice provides. The master is bound by the acts of his hired servant within the scope of his authoritj', and is liable for the injuries committed by him when in pursuit of the master's business. The relation, between the mas- EIGHTS OF MASTER AND SERVANT. 123 ter and the hired servant, may be terminated by the death of the master, by mutnal consent, or by the completion of the term of service. Read 1 Bl. Comm., pp. 428-432. 2 Kent Comm., Lect. xxxii, pp. 258-261. IPars. Cont., B. i, Ch. v. '2 Pap. Cont., B. iii, Ch. viii, Sec. 1. Keeve Dom. Rel., pp. 336-373, 377. Sohouler Dom. Rel., pp. 606-627, 633-647. § 206. Of Menials. Hired servants are of three kinds : Menials ; Day-labor- ers ; and Agents. A menial is one who dwells in the household of the master, and is employed about domestic concerns, under a contract, express or implied, to con- tinue in service for a certain time. A day-laborer is one who is hired upon occasion, to continue in service while occasion serves. An agent is one who is employed to transact business for, and in the stead of, another. Read 1 Bl. Comm., pp. 425, 427. Reeve Dom. Rel., p. 347. Schouler Dom. Rel., pp. 600, 608, 609. § 207. Of Agents. Agents may be divided into four classes : Agents com- monlj' so called ; Factors and Brokers ; Auctioneers ; and Attorneys. Agents commonly so called include clerks, sales- men, and others, whose services are devoted for the time being to the business of one master. These are governed by the ordinary rules which control the relation of master and servant. Read 2 Kent Comm., Lect. xli, pp. 612, 617, 618. Reeve Dom. Rel., pp. 347, 348. 124 ELEMENTARY LAW. § 208. Of Factors and Brokers. A factor or broker is one who is employed in the manage- ment of mercantile affairs, and usually acts for a number of persons at the same time. He is bound entirely by his instructions, and is liable for any negligence, want of punctuality, breach of orders or fraud. He has a lien on the goods of his principal for his commi^ion, but cannot pawn them so as to deprive the owner of his property therein. Read 2 Kent Comm., Lect. xli, pp. 622-628, 640. 1 Pars. Cont., B. i, Ch. iv. fleeve Dom. Eel., pp. 348-351. § 209. Of Auctioneers. An auctioneer is one who is employed to sell the goods of another to the highest bidder. He is the agent of both vendor and vendee. He is liable to the vendor for any negligence in the discharge of his dutj"^, and for any credit he gives to the vendee. When he does not disclose the name of the vendor, he is liable to the vendee as if he were himself the vendor. He has a right to charge a com- mission for his services, and has a lien on the goods there- for. Bead 2 Kent Comm., Lect. xxxix, pp. 530-540. 1 Pars. Cont., B. iii, Ch. ii, pp. 493-498. Keeve Dom. Rel., p. 351. § 210. Of Attorneys in Pact. An attorney is one who is appointed to do a thing in the name of another. Attorneys are of two kinds : At- torneys in fact, and Attorneys at law. An attorney in fact is one who is appointed by some special act for some spe- cial purpose. Any person of sufficient understanding may RIGHTS OF MASTER AND SERVANT. 125 be such an attorney. The mode of appointment is usually by letter or power of attorney, which must be under seal when the attorney is to execute a covenant or deed. Such an attorney is bound to act with due diligence, and, at the conclusion of the business, to account to the principal. Read 1 Pars. Cont., B. i, Ch. vi, pp. 110-112. Reeve Dom. Rel., pp. 354, 355. § 211. Of Attorneys at Law. An attorney at law is a sworn oflBcer of a court of justice, who is employed by a partj- in a cause, to manage the same for him. The authority of an attorney extends to all matters necessary to the progress and determination of the cause, but he cannot release damages, or settle the points in controversy, without his client's consent. His duty is to be true to the court and his client, to manage the cause of his client with care, skill, and integrity, to preserve his client's secrets, and to keep Ms cHent in- formed of the state of his business. He has a right to reasonable compensation for his services, and, to secure this, generally has a lien upon such papers of his client as are in his hands, as weU as on the judgment and costs which he may obtain. Read 3 Bl. Comm., pp. 25-29. 2 Kent Comm., Lect. xli, pp. 640, 641. 1 Pars. Cont., B. i, Ch. vi, pp. 113-118. Reeve Dom. Rel., pp. 351-354. PEIVATE WBONGS. 127 BOOK II. OF PRIVATE WRONGS. § 212. Of the Nature of a Private Wrong. A private wrong, or tort, consists in the wrongful act or omission {injuria) of one person, resulting in actual or legal damage {damnum) to another. Such wrong may be committed in three ways : (1) By nonfeasance, or the not- doing of that which the non-doer was under a legal obli- gation to do ; (2) By misfeasance, or the doing, in an improper manner, of that which the doer was either bound to do, or had a right to do ; (3) By malfeasance, or the doing of that which the doer had no right to do. Anj' wrongful act or omission, not resulting in actual or legal damage to another, is known as injuria sine damno, and is not a tort. Damage resulting from inevitable accident, or from the proper performance of a lawful act, is known as damnum absque injuria, and is also not a tort. Only when both damnum and injuria concur is a tort com- mitted. Read Broom Comm., pp. 74-108. 1 Hill. Torts, Ch. i, § 1 note c ; Ch. iii, §§ 5-19, 23, 24, 35-48. 1 Addison Torts, §§ 1-12, 16. Ccoley Torts, pp. 62-81. 128 ELEMENTAKY LAW, CHAPTEK I. or WRONGS WHICH VIOLATE THE EIGHTS OF PERSONAL SECUEITT AND PERSONAL LIBERTY. § 213. Of Menaces and Assaults. The wrongs, which violate the right of personal security, are those by which a man is disturbed in the lawful en- jo3'^ment of his life, limbs, bodj', health, or reputation. Wrongs, by which a man is disturbed in the lawful enjoy- Tnent of his life, limbs, and body, are of two kinds: Threats and Violence. A threat is the manifestation by one person of an intent to do actual violence to another. Such manifestation may take place in two ways : (1) By words, or menaces ; (2) B}'' acts, or assaults. Menaces are torts whenever they cause actual loss or damage to the person menaced. Assaults are always torts, damage from them being implied by law. EeadSBl. Comm.,p. 120. 1 Hill. Torts, Ch. v, §§ 2-7. 2 Addison Torts, §§ 787-789. Cooley Torts, pp. 29, 160, 161. Bigelow L. C. Torts, pp. 217-234. § 214. Of Battery, "Wounding, and Mayhem. Violence is any wrongful act of one person, whereby either he, or his instrument of wrong-doing, is brought into contact with the limbs or body of another person. From such wrongful contact the law always implies damage. ■WEONGS AGAINST SECURITY AND LIBERTY. 129 When such contact produces either no actual damage, or but slight damage,, it is called a lattery. When it results in serious injury, it is called a wounding. When it causes the loss of a limb, it is called a mayhem. Read 3 Bl. Comm., pp. 120, 121. 1 Hill. Torts, Ch. v, § 9. 2 Addison Torts, §§ 790, 791. Cooley Torts, pp. 162-169. Bigelow L. C. Torts, pp. 217-234. § 215. Of Nuisances to Health. The wrong, by which a man is disturbed in the lawful enjoyment of his health, is nuisance. Nuisance, as a wrong against personal security, is any act or omission of one person, not amounting to violence, by which another is unlawfully annoj-ed or rendered uncomfortable. The production of offensive noises, the exposure and sale of unwholesome provisions, the leaving unguarded of wells, mining-shafts, or cellars, and the keeping of ferocious animals, are instances of nuisance. Kead 3 Bl. Comm., pp. 122, 123. 1 Hill. Torts, Ch. vi, §§ 30-32 ; Ch. six, §§ 6, 9, 10. 1 Addison Torts, §§ 217-225, 228, 229, 253-258, 260-265. Cooley Torts, pp. 596-607. Bigelow L. C. Torts, pp. 454-492. § 216. Of Libel. The wrongs, which disturb a man in the lawful enjoy- ment of his reputation, are three : Libel ; Slander ; and Malicious Prosecution. A libel is the wilful and malicious publication, in a permanent and visible form, of some mat- ter tending to injure the reputation of another. Anj'thing 9 130 ELEMENTARY LAW. whicli tends, to disgrace or degrade a person, or to tender him ridiculous, is libellous matter. If it be expressed either by printing, writing, signs, efligies, or pictures, it is libellous in form. Sending or exhibiting such libellous matter to anj' third person, or printing it in a book, news- paper, or handbill, which is intended for general circulation, is a svif&cient publication. Malice is presumed from the fact of publication, but this presumption may be rebutted by showing that the publisher acted in good faith and upon lawful occasion. All persons concerned in the publication are participators in the wrong. Kead 3 Bl. Comm., pp. 125,126. Bac. Abr., Libel. 1 Hill. Torts, Ch. vii, §§ 2, 11,13, 14; Ch. ix,§§2,7; Ch. xi-xiv. 2 Addison Torts, §§ 1087-1115, 1140, 1147, 1148, 1157. Cooley Torts, pp. 198-195, 204-221. Bigelow L. C. Torts, pp. 90-99, 107-121, 151-177. § 217. Of Slander. Slander is the wilful and malicious publication, by spoken words, of some matter tending to injure the reputation of another. Slanderous words are of two kinds : (1) Words from which the law implies damage, called words actionable per se ; (2) Words from which the law does not implj- dam- age, called words not actionable pi^ se. Words actionable per se are of four kinds : (1) Words which charge a crime ; (2) Words which impute an infectious disease : (3) Words derogatory to a person in his trade or profession ; (4) Words derogatory to a person in his official character. Words not actionable per se become actionable when they are maliciously spoken, and produce actual damage. 3Ialice is implied by law from the utterance of the words, unless the WRONGS AGAINST SECURITY AND LIBERTY. 131 circumstances of the speaking are sucli as to show that the speaker did not intend to attack the reputation of the per- son spoken of. This presumption of malice maj' be rebut- ted by proof that the occasion justified the speaking, or that the words themselves were true. Read 3 Bl. Comm., pp. 123-125. Bac. Abr., Slander. 1 Hill. Torts, Ch. vii-xiv. 2 Addison Torts, §§ 1116-1187, 1157. Cooley Torts, pp. 193-221. Bigelow L. C. Torts, pp. 73-177. § 218. Of Malicious Prosecution. Malicious prosecution consists in the malicious preferment of a groundless criminal charge against another, without probable cause, and to his actual damage. The falsehood of a criminal charge is established by the determination of criminal proceedings in favor of the accused, either by a verdict of acquittal, or by the voluntaiy act of the public prosecutor. Probable cause is the existence of such facts and circumstances as would lead a reasonable and prudent man to believe in the guilt of the accused. Malice may be presumed from the want of probable cause, but the pre- sumption may be rebutted by showing that the accuser acted in good faith, and in the reasonable belief that the charge was true. Actual damage to person, property, or reputation, must result from the preferment of the charge, for the law does not imply damage either from its malice, falsehood, or want of probable cause. The preferment of a true charg?, however malicious, is no wrong. . Read 3 BI. Comm., pp. 126, 127. 1 Hill Torts, Ch. xvi. 2 Addison Torts, §§ 852-860, 880, 882. Cooley Torts, pp. 180-192. Bigelow L. C. Torts, pp. 178-206. 132 ELEMENTAEY LAW. § 219. Of False Imprisonment The wrong, by which the right of personal liberty is vio- lated, is that of False Imprisonment. False imprisonment is the unlawful detention of the person of another. Every confinement or restraint of the person of another, in any place, in any manner, and for any period of time whatever, if unlawful, is a false imprisonment. Such confinement or restraint is unlawful in every case where it is not expressly authorized by law, and, even where so authorized, it is unlawful unless it be in the mode, in the place, and at the time, prescribed by law. All persons voluntarily aid- ing and assisting in a false imprisonment are responsible for the wrong committed thereby. Kead 3 Bl. Comm., p. 127. 1 Hill. Torts, Ch. vi, §§ 1-2 a, 6, 7, 9-29. 2 Addison Torts, §§ 708-819. Cooley Torts, pp. 169-180. Bigelow L. C. Torts, pp. 235-285. WRONGS AGAINST PKOPEETY. 133 CHAPTER II. OF WRONGS 'WHICH VIOLATE THE RIGHT OF PRIVATE PROPERTY. § 220. Of Disseisin. Wrongs, which violate the right of private property, are those whereby the owner of such property is disturbed in the lawful use, enjoyment, or disposal thereof. The wrongs, by which the owner of estates in real propertj'^ may be thus disturbed, either deprive him of the possession of such property, or destroy or decrease the value of his estate therein without disturbing the possession. Wrongs involving dispossession are of two kinds : (1) Those which consist in the entering of one person into lands already in the lawful occupation of another, and the excluding that other from the enjoyment of the same ; (2) Those which consist in the exclusion, from the possession of lands, of a person who has the right of enjoyment, but has never had the actual enjoyment thereof. The former of these wrongs is called disseisin. Disseisin is the privation of seisin. It takes the seisin of the estate from one man and places it in another. To constitute it there must not only be an entry upon lands, but the entry must be open, ad- verse, and unlawful, and with intent to exclude, and actual exclusion of, the lawful owner. It may be committed either by a stranger against the tenant, or by one of several tenants in common against his co-tenants. Bj- it the dis- seisor acquires a right to the land, as against all persons 134 ELEMENTARY LAW. except the lawful owner, and, if his disseisin continue for a sufficient period, he gains a title bj possession. Read 3 Bl. Comm., pp. 167, 169-171, 188, 189, 196, 198, 199. Bae. Abr., Disseisin. 1 Cruise Dig., Tit. i, §§33-35. Cooley Torts, pp. 322-328. § 221. Of Abatement, Intrusion, Discontinuance, and Deforcement. The wrongs, which consist in the exclusion from posses- sion of a lawful owner who never had possession, are of four kinds : Abatement ; Intrusion ; Discontinuance ; and Deforcement. Abatement is the unlawful entry of a stranger into lands held in fee, after the death of the ten- ant in fee, and before the entry of the heir or devisee. Intntsion is the unlawful entry of a stranger, into lands held in remainder or reversion, after the determination of the particular estate, and before the entry of the remainder- man or reversioner. Discontinuance is the occupation of lands held in fee-tail, after the death of a tenant-in-tail, by a person to whom such tenant-in-tail has granted an estate for a longer period than during the life of such ten- ant-in-tail. Deforcement is any exclusion, from the pos- session of lands, of a lawful owner never in possession, otherwise than by abatement, intrusion, and discontinur ance. Withholding her dower from a widow, the retention of possession by a grantor, or by a tenant upon condition subsequent after the condition is fulfilled, are instances of deforcement. Read 3 Bl. Comm., pp. 168, 169, 171-174. Bac. Abr., Discontinuance. 1 Cruise Dig., Tit. i, §§ 31, 32 ; Tit. ii, Ch. ii, §§ 7-9. WRONGS AGAINST PROPERTY. 185 § 222. Of Trespass Quare Clausum. The wrongs, which destroy or decrease the value of the estate without disturbing the possession, are four : Tres- pass ; Nuisance ; Waste ; and Disturbance. Trespass is the unlawful entry of one person into the lands of another. Trespass to land is usually called trespass quare clausum fregit, every such trespass being, in the eye of the law, a forcible breaking into the enclosure of another. Any entry, however slight, and whether resulting in actual damage or not, if it be unlawful, is a trespass, and from it the law implies damage. Such entry is unlawful unless made by consent of the person in possession of the land, or in pursuance of some legal right or privilege. Trespass may be committed either by the personal entry of the trespasser himself, or bj' that of his servants acting under his orders, or by that of his cattle "when it results from his act or neglect. It can be committed by a stranger against the tenant, or by one tenant in common against his co-tenants, or by a landlord against his own tenant. It can be committed only against a person who is in actual possession of the land, or, if there be no actual possession, against one who has the right of immediate possession. A person, whose original entry was by license of the possessor, or by authority of law, becomes a tres- passer ah initio if he abuses such license or authority. Kead 3 Bl. Comm., pp. 208-215. Bac. Abr. , Trespass F, G 2. 1 Hill. Torts, Ch. xviii, §§ 6-11, 19-21, 35. 2 Hill. Torts, Ch. xxiv, §§ 1, 5 b, 6, 14, 18-27. 1 Addison Torts, §§ 875-385, 419-422. Cooley Torts, pp. 302-382. Bigelow L. C. Torts, pp. 341-887. 136 ELEMENTARY LAW. § 223. Of Nuisances to Property. A nuisance is any act or omission of one person, not amounting to a trespass, wliereby anottier is disturbed in the enjoyment of liis lands, or of incorporeal hereditaments annexed thereto. The methods, by which land may be subjected to this injury, are almost innumerable. The erection of adjacent buildings overhanging and discharg- ing water upon it, the obstruction of ancient lights or watercourses, the excavation of adjoining and supporting lands, the removal of party-walls, the production or main- tenance of injurious or offensive substances in proximity thereto, are instances of such nuisance. Nuisances to in- corporeal hereditaments, annexed to land, consist in any act or omission of another, which renders them less useful to the owner of the land. The obstruction of a way or common, the erection and maintenance of rival ferries or markets, are instances of such nuisance. Everj' continu- ance of a nuisance is itself a wrong, and a person omitting to remove a nuisance, which he dionot create but over which he has control, is a wrong-doer, and responsible for the injury occasioned thereby. Read 3 BI. Comm., pp. 216-219. 1 Hill. Torts, Ch. six, §§ 1-9, 16-16 c ; Ch. xx. 2 Hill Torts, Ch. xxi, xxii. 1 Addison Torts, §§ 78-99, 217-229, 238-243, 282, 283. Cooley Torts, pp. 366-374, 565-595, 608-614. Bigelow L. C. Torts, pp. 454-558. § 224. Of •Waste. Waste is any act or omission of the tenant of a particular estate, by which the estate of the reversioner or remainder- man is diminished in value. It is of two kinds : Volun- tary and Permissive. Voluntary waste is the wilful act of WRONGS AGAINST PEOPERTT. 137 the tenant, permanently damaging the property. Permis- sive waste is the unlawful omission of the tenant to repair and preserve the property. Cutting down timber trees, destroying or removing buUdings, opening new mines or quarries, are instances of voluntary waste. Suffering buildings or fences to become ruinous, or to be destroyed by fire for want of care, are instances of permissive waste. Waste can be committed by tenant for life or for j'ears against the owner of the fee, but not by tenant in fee-sim- ple against his heir, or by tenant in fee-tail against the next donee, each of these latter tenants being owners, for the time being, of the entire inheritance. Eead 2 Bl. Comm., pp. 281, 282. Bac. Abr.,WasteA, B, C. 2 Hill. Torts, Ch. xxvii. 1 Addison Torts, §§ 319-358, 362. Cooley Torts, pp. 332-336. § 225. Of Disturbance. Disturbance is any act of one person by which another is disturbed in the enjoj'ment of an incorporeal heredita- ment. If the incorporeal hereditament is annexed to an estate in lands, such disturbance is also a nuisance. A common is said to be disturbed where a person, who has no right to the common, pastures his cattle therein, or where a person, who has such' a right, puts more cattle therein than he ought, or where the common itself is wrongfully enclosed so that it cannot be used by the commoners. A franchise is disturbed by any act of another, which diminishes its profits. Tenure is disturbed by any fraud or threat, which induces a tenant to abandon his land. A way is disturbed hy obstructing it. Read 3 Bl. Coram., pp. 236-242. 1 Addison Torts, §§ 78-99, 113-123, 125-196. Cooley Torts, pp. 866-374. 138 ELEMENTARY LAW. § 226. Of the Asportation and Detention of Choses in Possession. The wrongs, whereby a man is disturbed in the lawful use, enjoyment, and disposal of his choses in possession, either deprive him of their possession, or destroy or de- crease their value without disturbing the possession. Wrongs which involve dispossession are of two kinds : Asportation and Detention. Asportation is the unlawful taking of a chose in possession out of the possession of another. It can be committed either hy the removal and destruction of the chose, or by its removal without de- struction. It can be committed against any one who has the lawful possession of the chose, and by any one, even the owner, who has not the right of immediate possession. Detention is the unlawful keeping of a chose in posses- sion out of the possession of another. Every asportation includes a detention, but detention may exist where the original taking was lawful. This injury can be committed by any person, even the owner of such chose, and against any person who has a right to its immediate possession. Asportation and detention are sometimes classed together under the name of conversion, which is any wrongful usur- pation of dominion over the personal property of another, whether by an original wrongful removal, by a subsequent wi'ongful detention, or by an appropriation of the property to a use not consented to by the lawful owner. Read 3 Bl. Coram., pp. 144-151. Bac. Abr., Trespass E ; Trover B, D. 2 Hill. Torts, Ch. xxv. 1 Addison Torts, §§ 466-500, 515-519, 521-526. Cooley Torts, pp. 436-470. Bigelow L. C. Torts, pp. 388-453. WRONGS AGAINST PEOPEETY. 139 § 227. Of Injuries to Choses in Possession. The wrongs whicli destroy or decrease the value of a chose in possession, without disturbing the possession, are of two kinds: (1) Those in wliich the destruction or de- crease of value results directly from the wrongful act of another ; (2) Those in which such destruction or decrease results indirectly, or consequentially, from the wrongful act or omission of another. The particular wrongs, embraced in these two classes, are almost without number, and gen- erally are without specific names. To the former class belong all injuries resulting from the wrongful application of anj' degree of force to the object injured. To the latter belong all injuries resulting from negligence, or from sec- ondary causes which have been set in operation by a force, wrongfully exercised, but not applied to the object injured. Read 3 Bl. Comm., p. 153. Bac. Abr., Action on the Case C, F ; Trespass E. Cooley Torts, pp. 436-441. § 228. Of Breaches of Contract. The wrongs by which a man is disturbed in the lawful use, enjoyment, and disposal of his choses in action, are known as breaches of contract. All choses in action arise from or are founded in contract, and the fulfilment of such contract is the reduction of such choses into the possession of their owner. This is as strictly true in contracts to render services, or to forbear a right, as in contracts to deliver goods. When the goods are delivered, when the right is forborne, when the services' are rendered, the chose or property, which during the pendencj' of the contract was in action, becomes a chose in possession, and is as fully possessed and enjoyed by its owner as, in the nature of things, it can ever be. The non-fulfllment or breach of a contract is, therefore, the wrongful retention in action of 140 ELEMENTARY LAW. a chose which should be vested in possession, and contains all the elements of a private wrong. Breaches of contract are as numerous in kind as the contracts, which may he violated thereby. Any contract is broken by the failure of either party to do, or to refrain from doing, the thing which he agreed to do or not do, in the manner, time, and place, in which it was agreed to be done or not done. Such failure is itself, in the eye of the law, a wrongful act, unless excused or justified by the conduct of the other party, and from such wrongful act the law implies damage. KeadSBl. Comm., p. 153. 1 liill. Torts, Ch. i, §§ 1 note a, 2. 1 Addison Torts, §§ 27, 28. Cooley Torts, pp. 2, 90, 91. § 229. Of Fraud. The law presumes that the parties to every contract deal fairly and honestly with each other, and authorizes each of the parties to assume such fairness and' honesty on the part of the other. "Whenever, therefore, one of the parties wilfully deceives and thereby damages the other, a wrong is committed additional to, and distinct from, the breach of that contract, in which such fairness was pre- sumed. This wrong is called frauds and consists in any false representation, by word or act, made knowingly by one party to a contract, with intent to mislead the other party to such contract in some matter connected there- with, and resulting in actual damage to such other party. Read 3 Bl. Comm., pp. 163-166. 2 Hill. Torts, Ch. xxvi. 2 Addison Torts, §§ 1174-1199, 1202-1210. Cooley Torts, pp. 473-507. Bigelow L. C. Torts, pp. 1-72. WEONGS AGAINST PEOPEKTY. 141 § 230. Of Conspiracy. Where two or more persons conspire together to do an unlawful act, and do such act in pursuance of such con- spiracy, and to the damage of the party conspired against, such conspiracy itself becomes a wrong additional to, and independent of, the particular injury sustained by the un- lawful act, and renders all parties to such conspiracy liable therefor. Kead 2 Hill. Torts, Ch. sxxiii, §§ 16-19 b. 2 Addisoa Torts, § 850. Cooley Torts, pp. 124-127, 279-282. Bigelow L. C. Torts, pp. 207-216. 142 ELEMENTAHY LAW. CHAPTER in. OP -WKONGS WHICH VIOLATE RELATIVE EIGHTS. § 231. Of Wrongs Committed against each other by the Parties to a Relation! Wrongs, whicli violate relative rights, are such acts or omissions, of persons outside of a relation, as disturb the superior in such relation, in the enjoyment of those rights which, by virtue of that relation, he has in the inferior. The wrongs, by which the parties to a relation may vio- late the reciprocal rights of each other, are included in the wrongs against absolute rights. Thus if one party to a relation abuse, or unlawfully confine, the other, it is a wrong against the right of personal security or personal liberty ; and, in the e3'e of the law, is an injury of the same nature as if committed against a person outside of such relation. So if one party to a relation withhold from the other some duty or service, which, by virtue of such re- lation, should be rendered to that other, the law, so far as it takes notice of such withholding, regards it as a breach of contract, and a violation of the right of private prop- erty. The wrongs which violate relative, as distinguished from absolute, rights, are, therefore, those committed by persons outside of the relation from which such rights arise. Read 3 Bl. Comm., pp. 138, 142. 2 Addison Torts, §§ 1233-1261. Cooley Torts, pp. 227, 228, 241, 549. Reeve Dom. Rel., pp. 65, 288. WROKGS WHICH VIOLATE EELATIVE RIGHTS. 143 § 232. Of Wrongs Committed by Third Persons against the Parties to a Relation. Wrongs, which violate relative rights, are also wrongs which violate the right of the superior in a relation, as dis- tinguished from the inferior. An inferior in a relation (as a wife, child, ward, or servant) has, by the common law, no rights in the superior which can be violated by third persons ; and though a husband, parent, guardian, or master be prevented, by third persons, from fulfilling the duties of his relation, yet the other party to such relation sustains, at the hands of such third persons, no legal wrong. On the other hand, if the inferior in a relation be prevented, by a third person, from fulfilling his or her du- ties, the superior in such relation does sustain a legal wrong, at the hands of that third person, and such wrongs are therefore said to violate relative rights. Eead 3 Bl. Comm., pp. 142, 143. Cooley Torts, pp. 222, 223, 235. § 233. Of the Abduction of a Wife. The wrongs, which violate the rights of a husband to the obedience and services of his wife, are three : Abduction ; Criminal Conversation ; and Battery. Abduction is the un- lawful taking or detention of a married woman from her husband. The taking or detention may be either by fraud, by persuasion, by violence, or even by harboring the wife against the will of her husband ; and it is unlawful in all cases when not done in obedience to legal process, or in the necessary protection of the wife from the abuse of her husband. Kead 3 Bl. Comm., p. 139. 2 Hill. Torts, Ch. xlii, § 23. 2 Addison Torts, § 1271. Cooley Torts, p. 225. Bigelow L. C. Torts, pp. 328-337. Sohouler Dom. Eel., pp. 57-59. 144 ELEMENTARY LAW. § 234. Of Criminal Conversation. Criminal conversation is the carnal knowledge of a mar- ried woman, to the damage of her husband. In this wrong, as in abduction, the law presumes the injury to have been accomplished by violence, since the wife has no legal power to consent thereto. If the husband consents to the inter- course he sustains no wrong, and such consent may be pre- sumed if he suffers his wife to live as a prostitute. So if thej' be separated, by agreement, he sustains no injury, for the legal rights, which are violated by this wrong, have been relinquished by him. Read 3 Bl. Coram., pp. 139, 140. 2 Hill. Torts, Ch. xlii, §§ 17-22. Cooley Torts, pp. 224, 225. Bigelow L. C. Torts, pp. 337-340. Reeve Dom. Rel., p. 64. Schooler Dom. Rel., p. 109. § 235. Of the Battery of a "Wife. Battery is the unlawful exercise of violence toward the person of a married woman, to the damage of her husband. Any threat or violence, offered to a wife, is a violation of her right of personal securitj-, and renders the wrong-doer liable to her. If such violence so far injure her as to de- prive her husband of her societj" or services, it becomes a violation of his rights in her, and renders the wrong-doer liable to him. ReadSBl. Comm.,p. 140. 2 Hill. Torts, Ch. xlii, §§ 1-3. Cooley Torts, p. 226. Reeve Dom. Rel., p. 63. Schouler Dom. Rel., pp. 108, 109. WRONGS WHICH VIOLATE RELATIVE RIGHTS. 145 § 236. Of the Abduction of a Child. The wrong, which violates the right of a parent in his child, is Abduction. Abduction, as a wrong against this re- lation, is the unlawful taking or detention of a child from the custody and control of its parent. The taking or de- tention may be either by force, by fraud, by persuasion, or bj' harboring a fugitive child with intent to encourage him in his disobedience. It is unlawful unless done in pursu- ance of legal process, or in the necessarj' shelter or pro- tection of the child, or after a voluntary relinquishment by the parent of his right to the control of the child. Read 3 Bl. Coram., p. 140. 2 Hill. Torts, Ch. xliii, § 12. Cooley Torts, p. 229. Reeve Dom. Eel., pp. 291, 293. Schouler Dom. Rel., p. 354. § 237. Of the Abduction of a Ward. The wrong, which violates the right of a guardian of the person of a ward, in such ward, is the same as that which violates the right of a parent in his child. Read 3 Bl. Comm., p. 141. Cooley Torts, p. 236. Schouler Dom. Rel., pp. 448, 454, 455. § 238. Of Retainer. The wrongs, which violate the rights of a master in his servant, are three : Retainer ; Batter}' ; and Seduction. Retainer is the unlawful taking or detention of a known servant from his master, during the period of service. This taking or detention may be by fraud, by persuasion, by force, or by harboring a fugitive servant with intent to 10 146 ELEMENTAEY LAW. encourage him in withholding his service from his master. Any person in the employment of another, whether as a menial, laborer, or agent, maj' be thus unlawfully taken or detained ; and every such taking or detention is unlawful, unless it is done in obedience to legal process, or in the necessary protection of the servant from the abuse of his master. Kead 3 Bl. Comm., pp. 141, 142. 2 Hill. Torts, Ch. xl» §§ 29-31. 2 Addison Torts, §§ 1272, 1273. Bigelow L. C. Torts, pp. 806-328. Keeve Dom. Kel., p. 377. Schooler Dom. Rel., pp. 354, 631-633. § 239. Of the Battery of a Servant. Battery is the unlawful exercise of violence toward the servant of another, to the damage of that other. Threats or violence toward a servant are a violation of his abso- lute rights, and render the wrong-doer liable to him. If the violence be so extreme as to impair the value of his ser- vices to the master, it is a violation of the rights of the master, and renders the wrong-doer also liable to him. Read 3 Bl. Comm., p. 142. 2 Hill. Torts, Ch. xl, § 28. Reeve Dom. Rel., pp. 291, 376, 377. Schouler Dom. Rel., pp. 631, 632. § 240. Of Seduction. Seduction is the unlawful carnal knowledge of the female servant of another, to the damage of that other. The carnal knouvledge may be procured by means of fraud, by persuasion, or by consent of the servant seduced. It must "WRONGS WHICH VIOLATE RELATIVE RIGHTS. 147 be unlawful ; i. e. by a person other than the husband of such servant. It must damage the master, by impairing the value to him of the services of such servant. Read 2 Hill. Torts, Ch. xliii, §§ 1-5. Bigelow L. C. Torts, pp. 286-305. § 241. Of Wrongs against Persons In Loco Parentis. The relation of master and servant is implied by law be- tween persons, who stand in loco parentis, and the minors, to whose services they are thus entitled. A parent, or guardian of the person, as well as a master, may thus be injured by the retainer, battery, or seduction of a minor daughter or ward, whether she resided with him or not, provided he was entitled to her services. If an adult daughter resides with her father and renders services to him, the relation of master and servant exists also between them, and her retainer, batterj^ or seduction becomes an injury to the father, which renders the wrong-doer liable to him. Read 2 Kent Comm., Lect. xxix, p. 205. 2 Hill. Torts, Ch. xliii, § 6. 2 Addison Torts, §§ 1274-1280. Cooley Torts, pp. 230-235, 236. Bigelow L. C. Torts, pp. 286-305. Reeve Dom. Rel., pp. 291-293. Schouler Dom. Rel., pp. 353-361. 148 ELEMENTARY LAW. CHAPTER IV. OF LEGAL REMEDIES. § 242. Of the Nature of Legal Remedies. For every -violation of a legal right the law, in some form, gives redress. This principle is expressed in the maxim ubi jus ihi remedium ; the jus being a right recog- nized or created by law ; the remedium consisting either in a restoration of the injured party to his former condition, so far as that can be done, or the payment to him of a compensation for his injury out of the property' of the wrong-doer. Read 3 Bl. Comm., pp. 22, 23, 116. Broom Leg. Max., pp. 191-210. 1 Addison Torts, § 51. Cooley Torts, pp. 19-21. § 243. Of Cases vrhere the Law Refuses to Apply its Remedies. There are, however, certain cases of violated legal rights in which, although the law recognizes the existence of the right and has a remedy by which the wrong could be re- dressed, it refuses to apply that remedy, on account of the encouragement to negligence or wrong-doing, which tlie appUcation of such remedy would afford. These are : (1) Joint wrongs; i. e. where the damage has resulted from the joint act of the injured party and his injurer ; (2) Cases involving contributory negligence; i. e. where the damage has resulted from negligence, and the injured party, by LEGAL REMEDIES. 149 his own negligence, has directly contributed thereto ; (3) Cases involving equal fault ; i. e. where the damage has resulted from the engagement of the injured partj' in an illegal transaction; (4) Cases involving an estoppel; i.e. where the damage has resulted from an act, which the wrong-doer was wilfull}' prevailed upon or influenced to do, by the words or conduct of the injured party ; (5) Cases barred by the Statute of Limitations ; i. e. where the injured party fails to pursue his remedy within the pre- scribed time. Read Bao. Abr., Limitation of Actions. Broom Leg. Max., pp. 265-2,95, 857-868. 1 Hill. Torts, Ch. Iv, §§ 1-37. 1 Addison Torts, §§ 34, 427, 428. 2 Addison Torts, §§ 1360-1362, 1376. Cooley Torts, pp. 151-159, 674-683. 2 Pars. Cont., Part ii, Ch. iii, Sefi. 3, 11; Ch. iv. 3 Pars. Cont. , Part ii, Ch. vi. 2 Greenleaf Ev., §§ 430-448. § 244. Of Self-Defence. Legal remedies are of four classes : (1) Those which the injured party may himself apply ; (2) Those which are ap- plied by the joint act of both the injured and the injurer ; (3) Those which are applied by the act of the law alone ; (4) Those which are applied by the joint act of the parties and the law. The remedies, which the injured party may him- self apply, are five : Self-defence ; Recaption ; Entry ; Abate- ment ; and Distress. Self-defence is the act of a party, forcibly resisting a forcible attack upon his own person or property, or upon the persons or property of those, whom by law he has a right to protect and defend. The degree of force, permissible in self-defence, depends upon the force of the attack, and the object against which that attack is di- 150 ELEMENTARY LAW. rected. In defence of life or limb a man may, if necessary, destroy life. To prevent or resist" certain felonious attacks upon his property he may also, if necessary, take life; In defence of his body against ordinary assault or battery, or of his property against a trespass or a misdemeanor, he has no right to take life or do serious injury to limb. And whenever the force used in defence is unnecessary or ex- cessive, the person using it becomes himself a wrong-doer, and is liable for the injuries, which such excess occasions. Read 3 Bl. Comm., pp. 3, 4. 1 Hill. Torts, Ch. v, §§ 11-15. 2 Addison Torts, §§ 792-797. Cooley Torts, pp. 45, 49, 50, 1G5-169.- § 245. Of Recaption. Recaption is the act of a party, whose wife, child, ser- vant, or goods have been unlawfully taken or detained from him, whereby he retakes possession of the same. This he may do wherever he can find them, provided he does not thereby endanger the public peace, or trespass on the lands of any person who is not privj' to the unlawful detainer. Read 3 Bl. Comm., pp. 4, 5. 1 Addison Torts, § 523. Cooley Torts, pp. 50-56. § 246. Of Entry. Entry is the act of a party, entitled to the immediate pos- session of lands, whereby he takes possession of the same. Anj' act, which assumes in the doer thereof a dominion over the land, is a sufficient entrj'. Entry may be made either by a landlord upon lands held by his tenant at wiU LEGAL EEMEDIES. 151 or tenant by sufferancej or by any person who has been ousted by the wrongful entry of an abator, intruder, or dis- seisor. Where the original entry of the present possessor was lawful, as in discontinuance and deforcement, or where the right of entry has been tolled, or taken away from the owner of the land by the death of the disseisor and the vesting of his apparent estate in his heir, entry cannot be made, and the remedy is by action or suit at law. Entry cannot be made when it will endanger the public peace. Kead 3 Bl. Comm.,pp. 5, 174-179. 1 Hill. Torts, Ch. xviii, §§ 18, 35. Cooley Torts, pp. 57, 58. § 247. Of Abatement. Abatement is the act of a party, who is suffering from the wrongs called nuisance, whereby he removes the cause of his injury. This remedy must also be so pursued as not to endanger the public peace. Eead 3 BI. Comm., pp. 5, 6. J Hill. Torts, Ch. xix, §§ 18, 18 a; Ch. xx, § 24. 1 Addison Torts, §§ 266-272. Cooley Torts, pp. 46-49. § 248. Of Distress. Distress is the act of a party, who has sustained some legal wrong, whereby he seizes the goods of the wrong- doer, and retains them until satisfaction be made. This remedy may be applied in two cases : (1) By landlords, who may distrain the goods or cattle of their tenants for non- paj'ment of rent ; (2) By possessors of land, who may distrain cattle found damage feasant, or doing damage, in their land. This remedy was anciently guarded by strict 152 ELEMENTARY LAW. rules, and, in this country, is now generally regulated by statute. Read 3 Bl. Comm., pp. 6-15. Bac. Abr., Distress. 1 Hill. Torts, Ch. xvii, §§ 21-26. 1 Addison Torts, §§ 706-753. Cooley Torts, pp. 58-60. § 249. Of Accord and Satisfaction. The remedies, which are applied by the joint act of the injured and the injurer, are two : Accord and Satisfaction, and Arbitration. Accord and satisfaction is the agreement of the injurer to give, and of the injured to receive, some valuable thing as a satisfaction for the wrong done, fol- lowed by the actual giving and receiving of such valuable thing. EeadSBI. Comm., p. 16. Bao. Abr., Accord and Satisfaction. 2 Addison Torts, § 1353. 2 Pars. Cont., Part ii, Ch. iii, Sec. 4. 2 Greenleaf Ev., §§ 28-33. § 250. Of Arbitration. Arbitration is the agreement of the injurer and injured to submit, to the decision of a third person, all questions as to the wrong alleged to have been done, followed by the decision of such third person, and the compliance of both parties therewith. The agreement to submit is called the submission, and the decision of the third person is called the award. The award must be conformable to the terms of the submission, must specify without ambiguity what is to be done by the parties, must be possible and reason- able, and leave no point, that is contained in the submis- sion, open to further controversy or discussion. When LEGAL REMEDIES. 153 sueli an award has been performed by the parties, the remedy of the injured party is complete. Read 3 Bl. Comm., pp. 16, 17. Bac. Abr., Arbitrament and Award. 2 Pars. Cont., Part ii, Ch. iii, Sec. 5. 2 Greenleaf Ev., §§ 69-81. § 251. Of Retainer. The remedies, which are applied by the act of the law alone, are two : Eetainer and Eemitter. Retainer is the remedy which the law gives to a creditor, who has been appointed executor or administrator upon the estate of his deceased debtor, whereby he retains out of the estate a sum sufficient for the paj-ment of his debt, in preference to other creditors of the same degree. This remedy is usually now applied only where the estate of the deceased debtor is solvent. Read S Bl. Comm., pp. 18, 19. Bac. Abr., Executors and Administrators A, 9. § 252. Of Remitter. Remitter is the remedy which the law gives to the right- ful owner of a freehold estate in real property, who has been ousted of possession, but afterwards has another freehold estate and the possession cast upon him under a defective title, whereby he is presumed to hold both his estate and his possession under his former and perfect title. This remedy is applied only where the defective estate is cast upon the disseisee by operation of law. If he purchases such an estate, no remitter takes place. Read 3 Bl. Comm., pp. 19-21. Com. Dig., Remitter. 154 ELEMENTARY LAW. § 253. Of Actions at Law. The remedies, which are applied bj' the joint act of the parties and the law, are called actions, or suits at law. An action is the pursuit of a legal remedy in a court of justice. The person pursuing the remedy is called the plaintiff; the person, against whom the remedy is sought, is called the defendant. The mode, by which the defendant is brought into court to answer to the claim of the plaintiff, is called the process. The mutual formal allegations of the parties in court, in affirmance or denial of the cause of action, are called the pleadings. The decision of the court is called ihB judgment. The proceeding, by which the judgment is enforced, is called the execution. Read 3 Bl. Comm., pp. 23-25, 272, 279, 293, 395, 412. § 254. Of Real Actions. Actions at common law are of three classes : Real Ac- tions ; Mixed Actions ; and Personal Actions. A real action is an action brought to recover the possession of a freehold estate in real propertj', from which the plaintiff has been ousted. These actions were formerly numerous, and constituted a large portion of the business of the courts of common law. In later times, thej' have given place to mixed actions. Read 3 Bl. Comm., pp. 117, 118. 1 ChittyPL.p. 97. 2 Greenleaf Ev., §§ 547-559. Pomeroy Rem., §§ 15-21. § 255. Of Mixed Actions. Ejectment. A mixed action is an action brought to recover the pos- session of real property, from which the plaintiff has been ousted, together with damages for such ouster. The only mixed action, now of practical importance, is the action of LEGAL EEMEDIES. 155 disseisin or ejectment. This action may be brought for the recovery of any real property, npon which entry can be made, and of which a sheriff can deliver the actual pos- session. It cannot be brought to recover an incorporeal hereditament or a personal chattel. Any person, who has a right to enter upon land and hold the exclusive posses- sion thereof, may maintain this action, whether his estate therein be personal or real. Ejectment will lie against any person, who has wrongfully taken or retained possession of the land, to the exclusion of the lawful possessor, and under a claim of right. Certain acts of trespass may also be treated as an ouster, at the election of the lawful pos- sessor, and this action sustained thereon. The plaintiff in ejectment must recover, if at all, by the strength of his own title, not by the weakness of that of the defendant, for actual possession of land gives the possessor a right thereto, as against every one but the lawful possessor. The damages recovered in this action are either nominal, (in which case an action of trespass lies to recover the value of the rents and profits during the period of dis- possession,) or are measured by the amount of such rents and profits. The judgment, if for the plaintiff, is that he recover quiet and peaceable possession of the land with damages ; which judgment the sheriff enforces by deliver- ing the land into his possession, and collecting and paying over the damages out of the defendant's estate. KeadS Bl. Comm., pp. 118, 199-206. Bac. Abr., Ejectment. 1 ChittyPl., pp. 187-196. 2 Greenleaf Ev., §§ 303-337. Hill. Rem., B. ii. § 256. Of Personal Actions. A personal action is an action brought to recover the possession of personal property, or to recover damages 156 ELEMENTARY LAW. for some violation of absolute or relative rights. Personal actions are of two kinds : Actions ex delicto, and Actions ex contractu. Actions ex delicto are actions brought to re- cover the possession of personal property, or to recover damages for some wrong other than a breach of contract. Actions ex contractu are actions brought to recover damages for a breach of contract. Read 3 Bl. Comm., p. 117. Bae. Abr., Actions in General. lChittyPl.,pp. 97,' 125. § 257. Of Trespass. Actions ex delicto are five : Trespass ; Case ; Trover ; Eeplevin ; and Detinue. Trespass is an action brought to recover damages for an injury, to person or property, di- rectly resulting from the wrongful act of another. It is sometimes called an action of trespass vi et armis, from the fact that the wrongs, which it is intended to redress, involve the application of force to the object injured. Hence where the injured object is incorporeal, and not capable of being affected by force, this action will not lie. It is a proper remedj' for threats or violence to the person, for false imprisonment, for trespass guare clausum /regit, for as- portation of, or forcible damage to, personal property, for abduction, criminal conversation, or batteiiy of a wife, for abduction of a child or ward, and for the battery or seduc- tion of a servant. Read 3 Bl. Comm., pp. 120-123, 138, 142, 151, 211. Bao. Abr,, Trespass. 1 ChittyPl., pp. 125-132, 166-186. 1 Hill. Torts, Ch. iii, §§ 12, 13. 1 Addison Torts, § 97. • • Cooley Torts, pp. 436-441. 2 Greenleaf Ev., §§ 612-635 a. LEGAL REMEDIES. 157 § 258. Of Trespass on the Case. Case is an action brought to recover damages for an in- jury, to person or property, indirectly and consequentially resulting from the wrongful act or omission of another. It is sometimes called an action of trespass on the case, from the fact that the wrongs, which it is intended to redress, do not necessarily involve the doing of a specific wrono-ful act in reference to the object injured, but grow out of the cu-cumstances of the case, among which circumstances is some wrongful omission of the defendant, leading to the injury, or sooae wrongful act of his, by which are set in operation other and secondary causes, which, in their turn, produce the injury. Hence this action is a proper remedy for nuisance to the person, for libel, slander, and malicious prosecution, for nuisances to land, for waste and disturb- ance, for damage without force to personal property, for the retainer of a servant, for conspiracy, and for fraud. Read 3 Bl. Comm., pp. 122, 123, 126, 142, 153, 165, 166, 220-237. Bac. Abr., Action on the Case. 1 Chitty PL, pp. 125-145. 1 Hill. Torts, Ch. iii, §§ 12, 13. Cooley Torts, pp. 436-441. 2 Greenleaf Ev., §§ 223-232 b. § 259. Of Trover. Trover is an action brought to recover damages for the wrongful taking or detention of goods from the posses- sion of another. It is also called conversion, since every unlawful taking or detention of goods is a conversion, or usurpation of dominion over the same. It is a proper remedy for asportation or for detention, where the taking 158 ELEMENTARY LAW. or detaining of the property is the sole element of in- jury. Eead 3 Bl. Comm., p. 152. Bao. Abi*., Trover. 1 Chitty PL, pp. 146-162. 2 Hill. Torts, Ch. xxv, §§ 1-3. 1 Addison Torts, §§ 524-542. Cooley Torts, pp. 441-458. 2 Greenleaf Ev., §§ 636-649. § 260. Of Replevin. Replevin is an action brought to recover the possession of personal property, which is unlawfully taken or detained, and, in some eases, damages for the unlawful asportation or detention. In ancient times, this remedy was principally used in cases of distress, to recover the possession of the property distrained, but has, in many of the States, been so extended as to lie in all cases, where goods are in the possession of one party and ought to be in that of another. The property to be replevied must be capable of actual de- livery, and must be distinguishable from all other prop- erty. Kead 3 Bl. Comm., pp. 145-151. Bac. Abr. , Replevin and Avowry. 1 Chitty PI., pp. 162-166. 1 Hill. Torts, Ch. xvii, §§ 23-26. 1 Addison Torts, §§ 754, 760-786. 2 Greenleaf Ev., §§ 560-570. Hill. Rem., B. i. § 261. Of Detinue. Detinue is also an action brought to recover the posses- sion of personal property, which is unlawfully taken or de- tained. This remedy is of the same nature as replevin, LEGAL EEMEDIES. 159 and is designed to afford the same redress. Wlien the action of replevin was confined principally to cases of original wrongful taking, this was the only remedy where- by goods lawfully taken, but unlawfully detained, could be recovered. The extension of the action of replevin has taken from the action of detinue much of its importance, and, in some of the States, it is now scarcely known. ReadSBl. Comm., p. 151. Bae. Abr., Detinue. 1 Chitty PL, pp. 121-125. ' 1 Addison Torts, §§ 631-648. § 262. Of Assumpsit. Implied Contracts. Actions ex contractu are three : Assumpsit ; Debt ; and Covenant. Assumpsit is an action brought to recover dam- ages for the breach of an implied contract, or of an ex- press contract not under seal. Implied contracts are of two classes : (1") Those implied between the state and its sub- jects, from the nature of the relation between them : (2) Those implied between individuals, from the nature of their ' dealings with each other. The first class includes the im- plied contracts to pay all legal taxes and imposts, to fulfil or submit to all judgments legally rendered, and to pay all fines and forfeitures legally incurred. The second class includes the following : (1) The contract called quantum meruit, or the implied agreement of every master to paj' his servant what the services are reasonably worth ; (2) The contract called quantum valehat, or the implied agree- ment of the vendee to pay the vendor what the property sold is reasonably worth ; (3) The contract of mmiey had and received, or the implied agreement of one who receives another's money, without giving valuable consideration for it, to pay it over to that other on demand ; (4) The con- tract of money laid out and expended, or the implied agree- 160 ELEMENTAEY LAW. ment of one, for ' whom another, at his request, has expended money without himself receiving valuable con- sideration for it, to pay it to that other on demand ; (5) The contract of money lent and advanced, or the implied agreement of one, to whom another has loaned money, to pay it to that other on demand ; (6) The contract on ac- count stated, or the implied agreement of two merchants, who have adjusted their accounts with each other, that the balance due from either to the other shall be paid upon de- mand ; (7) The contract /or fidelity and skill, or the implied agreement of one, who undertakes to perform any service for another, that he will discharge his duties with the requi« site diligence and skill, and the implied agreement of all contracting parties that fairness and honesty shall be ob- served between them. Read 3 Bl. Comm., pp. 157-166. Bac. Abr., Assumpsit. IChitty Pl.,pp. 98-108. 2 Greenleaf Ev., §§ 101-136 a. § 263. Of Debt. Debt is an action brought to recover a specific sum of monej', due and owing by one man to another. This ac- tion will lie whenever, by any contract, whether under seal or not and whether express or impUed, a certain sum of money has become due and paj'able. It also lies upon judgments and records, to recover the amount due thereon. Read 3 Bl. Comm., pp. 154, 155. Bac. Abr., Debt. IChitty PI., pp. 109-115. 2 Greenleaf Ev., §§ 279-292. LEGAL REMEDIES. 161 § 264. Of Covenant. Covenant is an action brought to recover damages for the breach of a contract under seal. In cases where, by such breach, a specific and ascertained, or liquidated, sum be- comes due as damages, covenant is a concurrent remedy with debt. In cases where such damages are unliquidated, covenant is the onlj' remedy. Read 3 Bl. Coram., pp. 155-157. Bac. Abr., Covenant. 1 Chitty PL, pp. 115-120. 2 Greenleaf Ev., §§ 233-247. § 265. Of Account. In addition to the ordinary common law actions, there are certain special actions, which are intended to apply to certain special cases, or to supplement and enforce the remedies already mentioned. These are the following : Account ; Scire Facias ; and Foreign Attachment or Gar- nishment. Account is an action brought by a principal against his agent, or by one copartner against another, or by a ward against a guardian, to compel him to account for money or property intrusted to his care. Reads Bl. Coram., p. 162. Bac. Abr., Acoorapt. 1 Chitty PL, p. 39. 2 Greenleaf Ev., §§ 84-39. § 266. Of Scire Facias. Scire facias is an action brought upon some recoi'd, as a judgment or recognizance, to compel a party, interested in such record, to show cause why the mandate of the record should not be fulfilled or vacated. Read 3 Bl. Coram., pp. 416, 421. Bac. Abr. , Scire Facias. 2 Tidd Prac, pp. 1139-1187. 11 162 ELEMENTARY LAW. § 267. Of Foreign Attachment. Foreign attachment or Garnishment is an action brought to compel a debtor of the plaintiff's debtor to pay to the plaintiff so much of the debt, due to the plaintiff's debtor, as will satisfy the plaintiff's claim. Read Com. Dig., Attachment. Drake Attachment, §§ 450-723. § 268. Of Mandamus. Finally, there is a class of legal remedies known as Pre- rogative Writs, extraordinary in their character, and de- signed to afford peremptory relief in cases where no action ■ could give adequate redress. These are the following: The Writ of Mandamus ; The Writ of Prohibition ; The Writ of Quo Warranto ; and The Writ of Habeas Corpus. These four great writs issue either upon the application of the counsel for the government or the party aggrieved, and compliance with the orders contained therein may be enforced, if necessarjr, by fine and imprisonment. The Writ of Mandamus is an order issued by some superior court to an inferior court, or to a corporation, or to an officer, commanding such court, corporation, or officer to discharge some legal duty. Read 3 Bl. Comm., pp. 110, 111, 26i, 265. Bac. Abr., Mandamus. 2 Addison Torts, §§ 1481-1523. High Ex. Leg. Rem., Part i. Moses Mandamus, Ch. i, ii. § 259. Of Prohibition. The Writ of Prohibition is an order issued by a superior court to an inferior court, forbidding it further to take cog- nizance of a given action, then pending before such infe- LEGAL REMEDIES. 163 rior court, but either beyond its jurisdiction, or proceeded with in an improper manner. Read 3 Bl. Comm., pp. 111-114. Bac. Abr., Prohibition. 2 Addison Torts, §§ 1453-1465. High Ex. Leg. Rem., Part ii, Ch. xxi. § 270. Of Quo Warranto. The Writ of Quo Warranto is an order issued by a supe- rior court, requiring a person or corporation to show by what authority it discharges certain duties, or enjoys cer- tain franchises. Reads Bl. Comm., pp. 262-264. Com. Dig., Quo Warranto. High Ex. Leg. Rem., Part ii, Ch. xiii-xx. § 271. Of Habeas Corpus. The Writ of Habeas Corpus is an order issued by a court, directing a person in confinement to be bi-ouglit before it, that the legality of the confinement may be determined. Read 3 Bl. Coram., pp. 129-137. Bac. Abr., Habeas Corpus. Com. Dig., Habeas Corpus. Hard Hab. Corp., B. ii. 164 ELEMENTARY LAW. CHAPTER V. OF THE PROCEEDINGS IN AN ACTION AT LATT. § 272. Of the Courts of Law and Equity. An action is the pursuit of a legal remed}' in a court of justice. A court is a place where justice is judicial!}' administered. In a court of law, justice is judicially ad- ministered according to the principles and forms of law. In a court of equit}-, justice is judicially administered according to the principles and forms of equity. Courts of law and courts of equity thus differ from each other, not only in regard to the nature of the remedies they offer for the prevention or redress of wrongs, but in the forms of procedure by which those remedies are practically applied. Head 3 Bl. Comm., pp. 23-25, 429-439. 1 Story Eq. Jur., §§1-37. Pomeroy Mun. Law, §§ 40-43, 140-167, 218-233. § 273. Of Judges, Clerks, Sheriffs, and Juries. A court of law is composed of one or more judges, clerks, a sheriff, and sometimes a ]wv, sitting for the transaction of judicial business, in the place, time, and manner prescribed by law. It is the duty of the judge to preside over and direct all the proceedings of the court, and to decide all questions of law arising in the course of such proceedings. It is tJie duty of the clerks to make and preserve true and complete records of the proceedings of the court, and to perform such ministerial functions as the PROCEEDINGS IN AN ACTION AT LAW. 165 law, the ordinary course of practice, or the rules of the court may require. It is the duty of the sheriff to serve the process of the court, to preserve order during its ses- sions, and to execute its judgments. It is the duty of the jury to decide fairly and impartiallj' the questions of fact presented to them, according to the evidence, and accord- ing to the rules of law as stated to them by the judge. Read 1 Bl. Comm., pp. 339, 344. 8 Bl. Comm., pp. 24, 273, 317, 324, 365, 372, 375, 391-393. Bac. Abr., Sheriff M. ' Com. Dig., Record, Viscount C 4. 1 Tidd. Prac, pp. 37-53. 1 Starkie Ev., pp. 764-880. Pomeroy Mun. Law, §§ 100-139, 241. Walker Am. Law, § 48. § 274. Of Causes and Parties. A court can exercise judicial functions only when some question or controversy, either of law or fact, is presented to it for decision ; and since, to every controversy, there must be at least two parties, one of whom affirms, while the other denies, the point in question, it is essential to the action of a court that parties litigant appear before it, invoking its assistance and determination. Hence it is often said that every court of law has three constituent parts ; the 'plaintiffs who affirms his right to the application of a given remedy ; the defendant, who denies this right ; and the judicial power, which, after due examination, must determine whether or not such remedy shall be applied. Read 3 Bl. Comm., p. 25. Pomeroy Mun. Law, §§ 300-303. 166 ELEMENTARY LAW. § 275. Of Plaintiffs in Actions Ez Contractu. The party-plaintiff, in an action at law, must be the per- son or persons, wliose legal right has been violated by the alleged wrong. In actions ex contractu, the proper plain- tiff is the person or persons, in whom the legal interest in the contract was vested, at the time the contract was broken. When one person has a legal, and another per- son has an equitable, interest in a contract, only the former can be the plaintiff in a court of law. Where several per- sons have a joint legal interest in a contract, they must all be joined as one plaintiff ; where their legal interest is several, they cannot join, but each must bring his separate action. Where, of several persons, who have a joint legal interest in a contract, some are dead, the survivors only constitute the plaintiff; and where a person dies, in whom resided a sole or several legal interest in a contract, his executor or administrator is the proper plaintiff. An assignee in bankruptcy is the proper plaintiff in actions upon contracts, in which the bankrupt had a legal interest ; and the husband is the proper plaintiff in actions upon contracts, in which his wife is legally interested, she being joined with him as plaintiff in actions upon contracts made by her before her marriage, and in actions for rent or other obligations accruing to her before marriage, in respect of her real estates in real property. Read 1 Chitty PI., pp. 1-32. Gould PL, Ch. iv, §§ 52-65. § 276. Of Plaintiffs in Actions Ex Delicto. la actions er delicto, for wrongs against the rights of personal security and personal liberty, the proper plaintiff is the person, whose security or libertj- has been invaded. Where the security or liberty of several persons has been PROCEEDINGS IK AK ACTION AT LAW. 167 violated by the same act of the defendant, each must bring his separate action, unless, as maj- sometimes occur, the damage resulting from the injury be joint. In actions for wrongs against the right of property, the plaintiff must be the person or persons, whose legal interest in the prop- erty has been affected by the alleged injury. Where this legal interest in the property vests in several persons jointly, all together constitute one plaintiff; but, where each has a several interest, each must sue alone. Where the legal interest is in one person, and the equitable inter- est is in another, only the former can be plaintiff in a suit at law. In actions ex delicto which survive the injured party, as is the case with most of those which lie for in- jiu-ies to property, the executor or administrator of the decedent is the proper plaintiff ; but where, of several per- sons, who were jointly interested at the date of the injury, some are dead, only the survivors can be joined as plain- tiffs. In actions for the violation of relative rights, the sui^erior in the relation must be the plaintiff. Read 1 Chitty PL, pp. 60-75. Gould PL, Ch. iv, §§ 52-57. § 277. Of Defendants in Actions Zz Contractu. The party defendant, in an action at law, must always be the person or persons, bj' whom the alleged wrong has been committed. In actions ex contractu,, for the breach of an express contract, the proper defendant is the person or persons, by whom the broken promise was originally made. In actions on implied contracts, the per- son or persons, who, under all the circumstances of the case, are subject to the legal liability, must be the defend- ant. Several persons, binding themselves jointly by their contract, must be joined also as defendant in an action for 168 ELEMENTARY LAW. the breach of such contract ; though, where one of two or more joint-contractors is dead, the survivors only are named as defendant. Where each of several parties to the same contract is separately, and not jointly, bound thereby, each must be sued separately for his own breach of contract. Where the contract is several as well as joint, each ma^- be separately sued, or all raay be joined as the defendant in one action, as the plaintiff may prefer. Upon the death of a contracting party, if the contract- Habilit}^, or the right of action for its non-fullilment, can survive, the proper defendant is his executor or adminis- trator. Upon the contracts of a married woman, made before her marriage, the husband must be joined with her as the defendant. Read 1 Chitty PI., pp. 33-59. Gould Pi., Ch. iv, §§ 6S-73. § 278. Of Defendants in Actions Ex Delicto. In actions ex delicto the person who commits the injury, whether by himself or by his agents, is to be made defendant. Where several persons join in the same wrongful act, each may be separately sued, or all may be joined as the de- fendant in one action, if the plaintiff so elect. Upon the death of the wrong-doer, if the action survive, his execu- tor or administrator must be made defendant. In actions brought against a married woman for torts committed by her, either before or after marriage, both husband and wife must be named as defendant. Bead 1 Chitty PI., pp. 76-93. Gould PI., Ch. iv, §§ 66, 74-78. § 279. Of the Nature, Kinds, and Service of Process. The first step, in the institution of an action at law, is to bring the defendant into court, to answer to the claim PROCEEDINGS IN AN ACTION AT LAW. 169 of the plaintiff, and to submit to tlie judgment of the court. This is done by means of process. Process is a general term, embracing all formal mandates of the court which are issued during the progress of a cause. The formal mandate of a court, by which the defendant is directed to appear and answer, is original process. The intermediate mandates, by which proceedings, that are subordinate or collateral to the main action, are com- menced or forwarded, are known as mesne process. The mandate, by which the judgment of the court is enforced, is Jinal process. Original and final process, and such mesne process as is directed against the defendant or his property, are known by the general name of writs. Origi- nal process is a written mandate, issued by the court, or by some other competent authority, directing the sheriff, or other proper officer, to summon the defendant to appear in court, at a day named therein, (called the return-day,) then and there to answer to the plaintiff's claim. When this process is a simple notice to appear, it is called a summons, and is served upon the defendant by reading it to him, or by leaving with him, or at his usual place of abode, a true and attested copy thereof. If the nature of the action be such that .the defendant is liable to arrest upon original process therein, the process, by which the sheriff is com- manded to arrest him, is known as a capias, and is served by taking his body into custody, and detaining him until duly released on bail, or committed in satisfaction of the judgment, or discharged by due course of law. In some States, the property of the defendant may be seized at the commencement of the suit, and held as security for his satisfaction of the judgment. The process, by which this is effected, is called an attachment, and is served by taking the property into the possession of the sheriff, as far as the nature of the property will permit, and holding it until the judgment be satisfied, or the property be otherwise 170 ELEMENTARY LAW. released by law. In some States also, a debt, due by a third person to the defendant, may be seized in the hands of such third person, and held as security for the satis- faction of the judgment. This is accomplished by a pro- cess known as foreign attachment or garnishment, and is served by notifying the third person to hold the debt, due from him to the defendant, subject to the order of the court or to final process. In all these forms of process, a summons to the defendant, to appear and answer, is neces- sarily embodied, all other original process being, in a cer- tain sense, collateral and subsidiary to the mandate, by which the defendant is brought before the court. Kead 3 Bl. Coram., pp. 272-292. Com. Dig., Attachment; Process A, C, D, E. Stephen PI., pp. 5-21. 1 Tidd Prac, pp. 116-130, 145-149, 165-199, 21&- 281. 3 Chitty Gen. Prac, pp. 140-145. § 280. Of the Return of Process. Appearance. The sheriff, having served the process, must endorse thereon a short statement of his mode of service, (called his return,) and lodge the process, so endorsed, with the clerk of the court, on or before the return-day. It is the duty of the defendant to appear in court on the return- day, and, on his failure so to do, judgment may go against him hy defaidt. The plaintiff likewise must appear, or judgment may be taken against him by the defendant upon nonsuit. Anciently, both parties to a suit appeared in per- son, and orally made their respective claims concerning the matter in dispute. Appearance is now generally made by PROCEEDINGS IN AN ACTION AT LAW. 171 attornej', and the mutual allegations of the parties are sub- mitted to the court in writing. Read 3 Bl. Comm., pp. 25-29, 273, 277, 278, 282, 287, 295, 296. Com. Dig., Pleader B ; Process B, D 3-7, E 1-3 ; Eetorn. Stephen PL, pp. 5, 21-28. 1 Tidd Prac.,pp. 262-269. § 281. Of Pleadings. These mutual allegations are called the pleadings. Their object is to apprise the court of the exact point or points, concerning which its judgment is desired. lu order to secure this object, numerous technical rules concerning them have been from time to time adopted, tending to certainty, clearness, and brevity, in the statement of the real material issue. The discussion and illustration of these rules forms the subject-matter of the treatises on Pleading. Read 3 Bl. Coram., pp. 293, 310-313. 1 Chitty PL, pp. 213, 214, 221-239. Stephen PL, pp. 123-137, 240-426. Gould PL, Ch. i, §§ 1-3 ; Ch ill ; Ch. viii, §§ 1-31, 65-79. § 282. Of the Classes and Order of Pleadings. The questions, presented to the court in any action at law, may be grouped in three classes : (1) Has the court, to which the process has been returned, authority to hear and determine the points in controversy? (2) Has the action itself been properly instituted? (3) Upon the mer- its of the controversy, which of the parties is entitled to a judgment, and for what amount shaU such judgment 172 ELEMENTARY LAW. be rendered? Pleadings may, therefore, be grouped into three corresponding classes : (1) Pleadings which raise the question, whether the court has the requisite authority, called pleadings to the jurisdiction ; (2) Pleadings which raise the question, whether the action has been properlj' instituted, called pleadings in abatement ; (3) Pleadings which raise the question, whether, on the merits of the controversy, the plaintiff or defendant should have judg- ment, and which embrace all other pleadings than those previously named. These three classes of questions must be raised, when raised at all, in the foregoing order. An objection to the jurisdiction must be made, if ever, before the attention of the court has been directed to proceedings, which would become useless if the objection were after- ward made and sustained. An objection to the mode, in which the action has been instituted, must be urged before the merits of the controversj' are submitted to the court. In either of these cases, failure to raise these questions, at the proper time, is regarded as a waiver of the right to raise them , and an irrevocable submission of the parties to the judgment of the court, upon the action as already in- stituted. Kead 3 Bl. Comm., pp. 301, 303. Bac. Abr., Pleas and Pleadings A. Com. Dig., Abatement C. 1 ChittyPl., pp. 440,441. Stephen PI., pp. 46, 430, 431. Gould PL, Ch. ii; Ch. v, §§ 1-9. § 283. Of Demurrer. Traverse. Confession and Avoid- ance. The question finally presented to the court for its deci- sion, under any of these classes of pleadings, is called the issue, and is reached in one of three different ways : (1) PROCEEDINGS IN AN ACTION AT LAW. 173 By a denial, upon one side, that the facts, alleged upon the other, are legally sufficient to sustain the action or the pleading, which denial is called a demurrer ; (2) By a direct denial, upon one side, of the facts alleged upon the other, which denial is called a traverse; (3) By an admis- sion, upon one side, of the facts alleged upon the other, coupled with an allegation of new facts, which justif}' or excuse or change the legal character of the facts admit- ted, which admission and allegation are called a confession and avoidance. A demurrer creates an issue of law. A traverse creates an issue of fact. A confession and avoid- ance may be traversed, or answered by another confession and avoidance, or by a demurrer ; in the end, however, alwaj-s terminating in a traverse, raising an issue of fact, or in a demurrer, raising an issue of law. Read 3 Bl. Comm., pp. 314-324. Bac. Abr., Pleas and Pleadings H, N. Com. Dig., Pleader G, Q, R 1-16. 1 Chitty PL, pp. 604, 653, 654, 660-670. Stephen PL, pp. 44, 52-59, 137-240. Gould PL, Ch. i, §§ 2-25 ; Ch. vii ; Ch. ix,§§l-46. 2 Tidd Prac, pp. 750-773. § 284. Of the Jurisdiction of Courts. The jurisdiction of a court is defined bylaw, and depends upon the character of the parties-litigant, and upon the subject-matter of the controversj'. Where no jurisdiction has been given by law to the court over the subject-matter of the controversy, all proceedings in regard to it must inevitably be void ; and the court should at once dismiss the action, whenever the want of jurisdiction becomes apparent. If the want of jurisdiction is dependent on the character of the parties-litigant^ it can be waived, and 174 ELEMENTARY LAW. will be waived in case they suffer the action to proceed without objection. Read Gould PI., Ch. v, §§ 14-25. Cooley Const. Liiii., pp. 398-407. § 285. Of Fleas to the Jurisdiction. An objection to the jurisdiction of a court may be taken either by motion or by plea. When the character of the parties and the subject-matter are so far disclosed by the process, or by the process taken in connection with the declaration, that an inspection thereof shows at once the want of jurisdiction, the attention of the court may be directed to the error by a motion, and it will immediately dismiss the action. But if the fault be not apparent upon such inspection, a formal pleading, on the part of the de- fendant, becomes necessar}-, in which the want of jurisdic- tion and its causes are distinctly stated, and which is called a plea to the jurisdiction. To this plea the plaintiff must reply either by a traverse, or confession and aroidance, or demurrer, and the defendant must answer, until an issue either of fact or law is reached. Read 3 Bl. Comm., pp. 302, 303. Bao. Abr., Pleas and Pleadings E. Com. Dig., Abatement D. 1 Chitty PL, pp. 441-446. Gould PI., Ch. V, §§ 13-30. § 286. Of Pleas in Abatement. An objection to the mode, in which the action has been instituted, must be made hjplea in abatement. The grounds of this objection are manifold, embracing: (1) Defects in the process ; (2) Defects in the service of the process ; (3) Incapacity of the plaintiff to sue ; (4) Incapacity of the defendant to be sued ; (5) Misdescription of the plaintiff; PROCEEDINGS IN AN ACTION AT LAW. 175 (6) Misdesciiption of the defendant ; (7) Misjoinder of parties ; (8) Nonjoinder of parties ; (9) Pendency of an- other action between the same parties, in which the same remedy is sought for the same wrong; (10) Variance be- tween the cause of action as stated in the process, and as. stated in the declaration. This plea must state the objec- tion, and the grounds thereof, with the greatest possible precision ; and in cases of misdescription, nonjoinder, and the like, must give the plaintiff such information as will enable him to correct his error. To this plea the plaintiff may repl}-, either by a traverse, or a confession and avoid- ance, or a demurrer ; and, upon the issue thus attained, the court will either sustain the action in its present form, or will dismiss the action, or will permit the plaintiff to amend in such a manner as to cure the defect. Read 3 Bl. Comm., pp. 302, 303. Bac. Abr., Abatement, Misnomer. Com. Dig., Abatement B, C, E-Jf. lChittyPl.,pp. 440-467. Stephen PI., pp. 47-51, 432. Gould PI., Ch. V, §§ 31-159. 1 Tidd Prac, pp. 685-694. § 287. Of the Declaration, Fleas in Bar, and Subse- quent Pleadings. The first in order of those pleadings, which raise the question, whether on the merits of the controversj' the plaintiff or defendant should have judgment, is the dec- laration. This is the plaintiff's statement of his cause of action. It must contain, in legal form and with all the necessary technical averments, a clear and concise descrip- tion of the facts of which he complains, of the damage which he has sustained, and of the remedy for which he seeks. To this declaration the defendant may demur, de- 176 ELEMENTARY LAW. nying that the facts alleged constitute a cause of action ; 01' he may plead in bar, either 'by traverse, or by confession and avoidance. Upon a traverse or demurrer, issue is immediately joined ; but to a confession and avoidance the plaintiff may replj' hy traverse, or demurrer, or a new confession and avoidance, until, by final traverse or de- murrer, issue is at last attained. Each stage of plead- ing, which is characterized by the affirmation or denial of any of the facts in controversj', has its own distinctive name; to wit, the plaintiff's rfecZaraiJora; the defendant's plea; the plaintiff 's repZicaiion ; the defendant's rejoinder; the plaintiff's surrejoinder ; the defendant's rebutter ; the plaintiff's surrebutter. Few pleadings ever reach this latest stage. Read 3 Bl. Comm., pp. 293-295, 303-310. Bac. Abr., Pleas and Headings. Com. Dig., Pleader C, E, F, H, I, K, L. 1 Chitty PI., pp. 239-240, 244-261, 409-414, 469- 472, 521-548, 566-568, 577-580, 601- 652. Stephen PI., pp. 30-44, 51-66. Gould PI., Ch. iv, §§ 1-51, 79-103; Ch. vi. 1 Tidd Prac, pp. 422-471, 695-715. § 288. Of Code-Pleading. In many of the States, the system of Code-Pleading (so called to distinguish it from Common-Law Pleading) has been introduced, by which the ancient forms of pleadings have been simplified, and the issues, which involve the merits of the controversy, are more speedily and clearly ascertained. The object of the pleadings, however, re- mains the same, and the rules, by which that object is at- tained, are substantially unchanged. Read Pomeroy Rem., §§ 28-111. Bliss Code PI., §§ 1-10, 135-142. PROCEEDINGS IN AN ACTION AT LAW. 177 § 289. Of Issues and Trial. When the parties are once at issue upon any point, the next step in the proceedings is to hear and determine the questions, which are presented by such issue. An issue of law is heard and decided by the judge alone. An issue of fact may, and sometimes must, be heard and decided by a jury. Read 3 Bl. Comm., pp. 324, 3i9-351. Stephen PJ., p. 76. § 290. Of the Svay. Challenges. A jury is a body of twelve men, summoned from the county where the court is held, and duly sworn to tr3' the issues between the plaintiff and defendant, and to decide them according to the law and the evidence. The process, by which the sheriff is directed to summon into court the men who are to constitute the jury, is known as a venire, and must be served and returned in the manner provided by law. When the jurors appear in court, and before they are sworn to try the issue in axiy particular action, the parties to the action have a right to make objection, either to the whole body of jurors, or to any individual among them. Such an objection is called a challenge. Challenges are of two kinds : Challenges to the Array, and Challenges to the Polls. A challenge to the array is an objection to the whole body of jurors, on account of some defect in the venire or in its mode of service, or of some partiality in the sheriff by whom it was served. A challenge to the polls is an objection to one or more individual jurors, on account of legal disqualification, or of known or probable bias in favor of one of the parties. In some States also, either party may peremptorily challenge a certain number of ju- rors, without giving any reason therefor. If a challenge to the poUs is sustained by the court, the juror is dis- 12 178 ELEMENTARY LAW. charged from ser\ace in that particular action, and another juror is substituted in his place. When a challenge to the avraj' is sustained, a new venire is issued and served. Read 3 Bl. Comm., pp. 352-366. Bac. Abr., Juries. Corn. Dig., Challenge, Enquest. 2TiddPiac.,pp. 904-908. § 291. Of Direct and Circumstantial Evidence. The jury being sworn, the pleadings are read, and some- times an explanatory statement of the issues is made by the counsel, in order that the applicability of the evidence, now to be introduced, maj' be more clearly understood. Ecidence is the means by which the existence or non-ex- istence of an alleged fact is legally ascertained. The existence or non-existence of an alleged fact may be as- certained in three ways: (1) Bj- actual observation; (2) Bj' the testimony of persons, who have a knowledge thereof derived from actual observation ; (3) By inferring it from other facts, which have been actual!}- observed or are es- tablished by proper testimony. Evidence of the first and second classes is known as direct evidence. Evidence of the third class is known as indirect, inferential, or circumstantial evidence. Read 3 Bl. Coram., pp. 366-371- 2 Tidd Prac, pp. 908-910. 3 Chitty Gen. Prac, pp. 872-888. 1 Stavkie Ev., pp. 15-17, 80-96, 820-866. 1 Greenleaf Ev., §§1,2, 7-13 a. Burrill Circ. Ev., pp. 1-8, 76-247. § 292. Of Material and Relevant Pacts. The sole questions, to he considered and decided by the jury, are those which are embodied in the issue. A fact PEOCEEDINGS IN AN ACTION AT LAW. 179 which, when proved, determines some question embodied in the issue, is a material fact. A fact from which, when proved, some material fact may legallj' be inferred, is called a relevant fact. Facts neither material nor relevant are, therefore, excluded from the consideration of the jury, and evidence concerning them is inadmissible. Read Stephen PL, p. 83. 1 Sfcaikie Ev., pp. 10-12, 15-17. 1 Greenleaf Ev., §§ 50-73. Stephen Ev., In trod. Part i. § 293. Of Facts Judicially Noticed. In the trial of every issue, certain facts are presumed by law to be personally known, both to the judge and jury. Of these there are six classes : (1) Political facts, such as the existence of other nations, their flags and seals, the law of nations, the territorial divisions and political con- stitution of the state, the public matters which affect the state, its elections and general legislative meetings, its weights and measures, coins, and other circulating me- dium, and its public and special fasts and festivals ; (2) Legal facts, including the public laws of the state, its vari- ous courts with their jurisdiction and rules of practice, their ofHcers and seals, the names and persons of their judges, the general customs of trade, and such other matters re- lating to law and usage as are equally well known to all citizens ; (3) Official facts, embracing the names and func- tions of the President, senators, representatives, ambassa- dors, marshals, sheriffs, and all who hold office in the state by virtue of public election or appointment, the signatures of the President, marshals and sheriffs, and the signatures and seals of notaries ; (4) Public history, including the facts which constitute the political, social, and topographical 180 ELEMENTABY LAW. development of the state, and which are generally known and regarded as true ; (5) Natural history, comprising such facts in nature as are permanent and uniform, and do not require special investigation in order to discover them, such as the number of daj's in a given month, the succession of the seasons, and the coincidence of week-daj's with certain daj^s of the month and year ; (6) The vernacular language, or the meaning of all common English words, and of such terms in art as are of ordinary use. Of all these facts courts take judicial notice, and regard them as established without further proof. All other facts, whether material or relevant, must be established by legal and sufficient evi- dence. Read 1 Starkie Ev., pp. 735-741. 1 Greenleaf Ev., §§ 4-6. § 294. Of Written and Oral Evidence. Evidence, as to its form, is of two kinds : Written and Oral. Written evidence consists of public and judicial rec- ords, deeds, bonds, and other instruments in writing. Written evidence is admissible, whenever the fact in ques- tion is the existence of the instrument itself, or whenever the contents of the instrument are legally sufficient to es- tablish some material or relevant fact. Oral evidence con- sists of the viva voce statement of a witness, who is duly sworn and subjected to examination. Oral evidence is admissible only when the witness can testif)', from his personal knowledge, as to the existence or non-existenCe of some material or relevant fact, or when he is called, as an expert, to testify to his opinion. Read 3 Bl. Comm., pp. 367-369. 1 Starkie Ev., pp. 96, 102, 255. 1 Greenleaf Ev., §§ 306-308. PROCEEDINGS IN AN ACTION AT LAW. 181 § 295. Of Primary and Secondary Evidence. The existence and the contents of a written instrument may be proved by the production of the instrument itself, or in certain cases where this cannot be done, by a prop- erly- attested copy, or where no copy even can be had, by oral evidence. The instrument itself is primary evidence of its existence and its contents ; copies and oral evidence are secondary evidence ; and secondarj' evidence is inadmis- sible, whenever primary evidence can be produced. The meaning or construction of an instrument is a matter for the decision of the judge, and oral evidence that the maker of the instrument did not himself mean what the instru- ment, as so interpreted, expresses is inadmissible. Read Bac. Abr., Evidence F, G, I. Com. Dig., Testmoigne — Evidence. . 2 Tidd Prac, pp. 849-855. 1 Staikie Ev., pp. 255-583, 642-733. 1 Greenleaf Ev., §§ 82-97, 275-305, 470-583. § 296. Of Depositions. Oral evidence is usually produced in open court, in the presence of the jury. Where this is impossible, by reason of the sickness of the witness or other cause, it may be taken in writing by some person, appointed for the pur- pose by the court, or authorized to do so b}' the general rules of law. The evidence, thus written, is called a de- position, and is read in court to the jury as the testimony of the witness. Read 2 Tidd Prac, pp. 860-863. 1 Starkie Ev., pp. 409-434. 1 Greenleaf Ev., §§ 320-325. 182 ELEMENTAKY LAW. ' § 297. Of Subpoenas. Subpcenas Duces Tecum. The process, by whieh witnesses are summoned to ap- pear and testify, is known as a suhpcena. "When written in- struments, in the possession of a third person, are needed as evidence, he may be summoned to appear and produce them, by a process known as a subpoena duces tecum. If such instruments are in possession of the opposite party, notice may be given to him to produce them, and if he refuse, secondary evidence of their existence and coutents may be given. KeadS Bl. Comm., p. 363. Bac. Abr., Evidence D. 2 Tidd Prac, pp. 855-860. 1 Starkie Ev., pp. 103-114. 1 Greenleaf Ev., §§ 309-319. § 293. Of the C.ompetency of WitnesseB. Any person, who understands and recognizes the obliga- tions of an oath, is a competent witness; unless disqualified by positive law. Formerly, all those who had been con- victed of certain infamous crimes, and all those who were interested in the merits of the controversj-, were so dis- qualified ; but such interest or conviction is now regarded as affecting the credibility, rather than the competency, of a witness. Read 3 Bl. Comm., pp. 389, 370.' Bac. Abr., Evidence A 4-6, B. Com. Dig. , Testmoigne — Witness. 1 Starkie Ev., pp. 22-34, 114-146. 1 Greenleaf Ev., §§ 326-333, 347-430. § 299. Of Confidential Communications. With few exceptions, any witness may testify to any material or relevant fact within his personal knowledge. PROCEEDINGS IN AN ACTION AT LAW. 183 But hushand and wife are not allowed to testify against each other, unless in actions where some personal injury, inflicted by one upon the" other, is the subject-matter of the controversy. Public officers are not permitted to tes- tify to any secret affairs of state, or to any matters which the public interest requires to be concealed. Counsel are not allowed to testify to any matter confided to them by their clients, nor can a client be compelled to disclose anj' communication passing between himself and his counsel. No witness can be compelled to reveal matter, which would expose him to prosecution for a criminal oifenee, or to any public penalty or forfeiture. Read 3 Bl. Comm., p. 370. Bao. Abr., Evidence A 1-3. 1 Starkie Ev., pp. 38-42. 1 Greenleaf Ev., §§ 238-254 a, 334-346. § 300. Of Hearsay Evidence. With few exceptions also, no witness is allowed to tes- tify to statements, made to him or in his presence by other persons. Among these exceptions are the following : (1) Where the making of tlie statement is itself a material or relevant fact ; (2) Where the statement was made by a party-litigant, or his agent, or some person in whose right he claims, and is an admission or a declaration against his interest ; (3) Where the statement was a dying declaration, made under apprehension of immediate death by a per- son alleged to haye been killed hy another, and describ- ing the method and the perpetrator of the homicide ; (4) Where the statement was made by a person, since dead, insane, or be3'ond the reach of a subpoena, who at the time was testifjing under oath in the same action, or in another action involving the same issues between the same parties, or their repi-esentatives in interest ; (5) 184 ELEMENTARY LAW. Where the statement was made by a person, since de- ceased, in the oi-dinary course of business, or in the dis- charge of some professional dut}-, or in reference to the existence of some public right or custom and while no dis- pute concerning such right or custom existed ; (6) When the statement was made by a person, since deceased, con- cerning relationship, births, deaths, or marriages, provided these facts are actually in issue, and the statement was made by the blood-relative of the person to whom they relate, or by the wife or husband of such blood-relative, and was also made before the facts themselves became matter of dispute ; (7) When the statement was made by a testator, since deceased, concerning the contents of his will, and the will, though proved to have once existed, cannot now be found ; (8) When the statement was made by a person, who, having been called as a witness in the same action, has testified inconsistentlj' therewith ; (9) Where the statement was made by a person, who, at the same time, performed some act, which has been shown in evidence, and which this statement is calculated to explain. Statements, not embraced in these exceptions, are known as hearsay, and are inadmissible. Read 3 Bl. Comm., p. 368. Bac. Abr., Evidence K, L, N. 1 Starkie Ev., pp. 35-39, 43-66. 1 Greenleaf Ev., §§ 98-235. Stephen Ev., Part i, Ch. iv. § 301. Of the Esaminatiou of Witnesses. The examination of a witness is divided into three stages : (1) Direct examination bj- the party who produces him ; (2) Cross-examination bj- the adverse party ; (3) Re-direct examination by his first examiner. The rules, which gov- ern the direct examination, are few and simple. The witness PROCEEDINGS IN AN ACTION AT LAW. 185 can be questioned only conoerning material or relevant facts, or concerning matters necessary to explain such facts. Except in the case of adverse -witnesses, no ques- tion, which suggests the desired answer, can be asked con- cerning anj' material or relevant fact ; nor can a question, which assumes the existence of a fact not jet established, be permitted. The witness may, when uecessarj-, assist his memory by reference to written memoranda, provided he can thereupon testify to the facts from his own recollec- tion. On cross-examination a far gTeater latitude is al- lowed. Leading questions, suggesting the desired answer to the witness, may be employed. Collateral facts may also be elicited, and questions may be asked concerning almost any matter, which, in the discretion of the judge, maj- appear proper in order to test the veracity and knowledge of the witness. A witness cannot, however, be cross-ex- amined as to any immaterial and irrelevant fact, merely for the purpose of contradicting him by other evidence. The re-direct examination is intended to enable the witness to explain the statements made on cross-examination, and is governed by the same general rules as the direct. Read Bac. Abr., Evidence E 1. 3 Chitty Gen. Prac, pp. 890-903. 1 Starkie Ev., pp. 146-254. 1 Greenleaf Ev., §§ 431-469. § 302. Of the Burden of Proof. The burden of proof, or the duty of supporting his position by a preponderance of evidence, rests on the affirmative. This may be either the plaintiff or defendant, according to the nature of the issue. The affirmative also usually goes forward in the presentation of his claims and in supporting them by evidence, and the negative having 186 ELEMENTARY LAW. followed with his claims and proof, the contest is then closed by the affirmative. Read 1 Starkie Ev., pp. 585-595. 1 Gi-eenleaf Ev., §§ 74-81. § 303. Of Presumptions. The admissibility of the evidence offered on the trial is to be determined by the judge, according to the settled rules of law, or, in cases where no rule exists, according to his own discretion. The sufficiency and weight of evidence are to be, in almost everj' case, determined by the jury. There are, however, certain classes of facts, from which the law conclusivelj' infers the existence or non-existence of other facts, and the jury are, therefore, compelled to find the latter whenever the former have been proved. From other classes of facts the law infers, but not conclusively, the existence or non-existence of other facts, and the jmy, in such cases, are compelled to find the latter, onl}^ when the former have been proved, and when the inference, which the law usually derives therefrom, has not been rebutted. The rules of law, necessitating these conclusive or prima facie inferen- ces, are called presumptions. The jurj' are also compelled to decide in accordance with the evidence actually' presented ; and a verdict clearly against the evidence is illegal, and will be set aside by the court on due application, and a new trial granted. Ivead 3 Bl. Coram., pp. 371, 3S7. Bac. Abr., Evidence H. 1 Starkie Ev., pp. 70-80, 96-101, 741-763. 1 Greenleaf Ev., §§14-43. Burrill Circ. Ev., pp. 9-75. PROCEEDINGS INT AN ACTION AT LAW. 187 § 304. Of the Charge of the Judge. After the evidence is closed and the arguments of coun- sel have been made, the judge instructs the jury in those rules of law, which are to guide them in arriving at -their verdict. This instruction is called the charge, and in it he must not only state the law correcti}-, but so clearly and completely as to enable the jury to properly apply the evidence, and to decide legally every question embodied in the issue. Any default of tlie judge, in this respect, may become ground for a new trial, at the instance of the party prejudiced therebj'. KeadS Bl. Comm., p. 375. 3 Chitty Gen. Prac, pp. 911-916. § 305. Of the Deliberations of the Jury. The charge being finished, the jury deliberate in private upon the questions thus submitted to them, haying before them the pleadings, documents, depositions, and other writ- ten evidence. The oral evidence the}- are expected to re- member, and, if thej' do not remember it, they should return to the court-room, and hear anew so much of it as thej' may have forgotten. They cannot give evidence to each other, or examine anj' witness b}' themselves. If they are in doubt concerning anj- question of law, which was, or should have been, embraced in the charge, they may return and receive additional instructions. If, after due dehberation, they cannot agree on a decision, thej' report the disagree- ment to the judge, who takes back the papers and orders a new trial before another jury. "When they do agree, they return into the court-room, and announce their decision in the mode prescribed bj' the statutes or the rules of court. This decision is called a verdict. Bead 3 Bl. Comm., pp. 375, 376. 2TiddPrao., pp. 916,917. 3 Chitty Gen. Prac, p. 917. 188 ELEMENTARY LAW. § 306. Of the Verdict. Verdicts are of two kinds: General and Special. A general verdict finds the issue, in general terms, for the plaintiff or defendant, and is presumed to embrace a decision upon ever}' question of fact presented in the issue. A special verdict recites all the facts in detail, as the jury find them to have been proved, and prays the advice of the court thereon ; concluding conditionally, that if, upon all the facts so found, the court should be of the opinion that the plaintiff had a cause of action, then the verdict is for the plaintiff; if otherwise, for the defend- ant. The latter form of verdict is seldom adopted. Read 3 Bl. Coram., pp. 377, 378. Bac. Abr., Verdict. Com. Dig. , Pleader S. 1 Chitty PI., pp. 673-684. Stephen PI., pp. 91-93. 2TiddPrac.,pp. 928-932. § 307. Of New Trials. The verdict of the jury has no validity until accepted by the judge. Any illegal conduct, in relation to the action, on the part of one or more of the jurors, or on the part of the prevailing partj' in relation to the jurj- ; any material contradiction between the facts found by the verdict and the facts established by the evidence ; any palpable vari- ance between the rules of law delivered in the charge, and the rules by which the jury have been guided in their ap- plication of the testimonj-, or their decision of the issue ; ■when duly brought to the attention of the judge, renders it his duty to set aside the verdict and to order a new trial. Proceedings for this purpose are usuallj' bj' motion, ad- dressed orally or in writing hy the defeated party to the PKOCEEDINGS IN AN ACTION AT LAW. 189 judge, upon the allegations in which witnesses may, if necessary, be examined. Read 3 Bl. Comm., pp. 878, 386-393. Bac. Abr., Trial L. Com. Dig., Pleader R 17. Stephen PI., pp. 94-96, 100. 2 Tidd Prac, pp. 934-919. 1 Starlde Er., pp. 799-806. 1 Graham and Waterman N. T. , Introd. pp. 1-502. 2 Graham and Waterman N. T., pp. 1-50. § 308. Of Arrest of Judgment. Where it Is apparent on the face of the pleadings that the verdict is improper, or that if accepted it cannot be sustained, a motion in arrest of judgment may be made by the defeated party, which, if successful, will result in the refusal of the judge to accept the verdict as the basis of a judgment, and in an order for the reconstruction of the pleadings from the point where the first defect appears. This correction of the pleadings is known as a repleader. When a verdict has been improperly rendered in favor of the defendant, and when neither on his present plea, nor on any other plea which he can offer, a verdict in his favor can legally be given, the judge maj' order a judgment nan obstante veredicto to be entered for the plaintiff. Upon these motions, onlj' material defects in the pleadings can he regarded, all formal defects being cured by verdict. Read 3 Bl. Comm., pp. 393-395. Com. Dig., Pleader R 18, S 47. 1 Chifcty PI., pp. 655-657. Stephen PL, pp. 96-100. Gould PL, Ch. X. 2 Tidd Prac, pp. 949-954. 190 ELEMENTAKY LAW. § 309; Of Judgments. "When a verdict is accepted, and no motion in arrest is interposed, it is followed by the judgment. A judgmeni is the sentence of the law, awarded and pronounced by the judge upon some question legaUj' submitted to him. Judgments are of two kinds : Interlocutory and Final. An interlocutory judgment is a sentence pronounced by the judge, upon some question arising during the proceedings in an action. A final judgment is the sentence which deter- mines the action itself. Final judgments maj- be rendered in several cases : (1) Upon nonsuit ; i. e. where the plaintiflf, having commenced an action, abandons it, and the defend- ant enters and takes a judgment for his costs ; (2) Upon default; i.e. when the defendant does not appear to de- fend, and the plaintiff takes judgment against him for the debt, or damages, and costs ; (3) Upon confession ; i. e. where the defendant, in an action of debt, acknowledges the indebtedness in court, and the plaintiff takes judgment against him for the amount and costs ; (4) Upon nihil dieit; i. e. where the defendant appears but refuses to plead ac- cording to the due course of law, and the plaintiff takes judgment against him for the debt, or damages, and costs ; (5) Upon demurrer ; i. e. where an issue of law, which is decisive of the action, is presented to the judge, and the prevailing party, if he be the plaintiff, taljes judgment for the debt, or damages, and costs ; but, if he be the defend- ant, for the costs only ; (6) Upon verdict rendered by the jur}'. In all cases of judgment where debt or damages may be awarded, except npon the verdict of a jurj-, tlie amount must be determined by a writ of inquiry, or a hearing in damages, either before the judge or before some other per- son or persons appointed for the purpose. In judgments rendered upon verdict, the amount named in the verdict must be followed in the judgment, unless this amount be greater than the one claimed in the declaration. In such PROCEEDINGS IN AN ACTION AT LAW. 191 a case, the prevailing party must enter a remittitur for the eui-plus, and take judgment only for the amount claimed, or the judgment will be erroneous. The recovery of costs, botli as to the right thereto and the amount thereof, is gen- erallj" regulated by statute. Read 3 Bl. Comm., pp. 298, 297, 303, 324, 305-399. IJac. Abr., Nonsuit. Com. Dig., Pleader M, X, Y, Z. Stephen PL, pp. 104-110. 1 Tidd Prac, pp. 606, 609-631. 2 Tidd Prac, pp. 794-799, 917-927, 962-984. § 310. Of Audita Querela. The process, by which a final judgment is enforced against the person or property of the defeated party, is called an execution. This issues, as a matter of course, out of the court, on the rendition of the judgment, unless staj-ed b}' the court on account of some proceeding on the part of the defeated part}-, which may render it unneces- sar}'. The proceedings, of which the defeated party may avail himself for this purpose, are two: (1) An Audita Querela ; (2) A Writ of Error. An audita querela is a proceeding, in which the defeated party claims that, since the rendition of the judgment, he has been legally released or discharged from the same, and pra3-s that it may not be enforced against him. The question thus raised being ex- amined by the court, in which the judgment was rendered, execution will be granted or withheld as justice may re- quire. Read 3 Bl. Coram., pp. 401, 405, 406. Bac. Abr., Audita Querela, Supersedeas D 1. Com. Dig., Audita Querela, Supersedeas. 192 ELEMENTARY LAW. § 311. Of Writs of Error. A writ of error is a proceeding in which the defeated party claims that the judgment is invalid, either on account of errors in law apparent on the face of the record, or on account of his own legal incapacity or want of opportunity to appear, or on account of a want of authority, on the part of the court, to render such a judgment. The record regu- larly consists of the process, pleadings, verdict, and judg- ment. When questions of law arise in the course of the proceedings, (as upon the admission or rejection of evi- dence and the like,) they can be made part of the record by a written statement, called a bill of exceptions. If the defeated party prevails in this proceeding, the judgment will be reversed and a new trial ordered, or such further proceedings had as will, if possible, correct the error. If he be also here defeated, the original judgment will be affirmed, and execution issued. A writ of error may be brought even after execution has been levied, and, if then successful, not only will the judgment be reversed, but the execution-creditor will be compelled to pay back the sum collected on the execution. In some of the States, mo- tions, in the nature of writs of error, are permitted to be made, within a certain time after judgment has been ren- dered, and a correction of errors, or other desired relief, is thus secured as a part of the proceedings in the original action. Read 3 Bl. Coram., pp. 406-411. Bao. Abr., Bill of Exceptions, Error, Supersedea."! D, E, F. Com. Dig., Error, Pleader 3 B. Stephen PL, pp. 88, 89, 117-122. 2 Tidd Prac, pp. 910-914, 1188-1246. 1 StavkieEv., pp. 790-797. PROCEEDINGS IN AS ACTION AT LAW. 193 § 312. Of the Nature, Kinds, and Service of Execu- tions. An execution is a process, directed to the sheriff or other proper officer, commanding him to satisfy the judgment upon the body, or the personal property, or the real prop- erty', of the defeated party. An execution, issued against the body of the defeated party, is called a capias ad satis- faciendum. It is served by arresting him and committing him to prison, there to be detained until discharged bj' due course of law. An execution, issued against the personal property of the defeated party, is called a jieri facias. It is served bj' seizing and selling so much of his goods and chat- tels, as may be needed for the paj-ment of the judgment-debt. An execution, issued against the real property of the de- feated part\-, is called sometimes a levari facias, sometimes an elegit, according to the method by which the lands them- selves, or the profits thereof, are appropriated to the pay- ment of the judgment-debt. In some States, the real propertj' may be sold and the proceeds applied in payment ; in other States, the property is deeded by the sheriff to the judgment-creditor ; in still others, the possession of the property may be delivered to the creditor to hold until the income pa3's the debt. Certain special forms of action have also their peculiar forms of execution. In ejectment, the execution is called an habere facias, and is served by dispos- sessing the defendant and putting the plaintiff into peace- able possession of the lands. In the action of replevin, an execution sometimes issues to secure the restoration, to the defendant, of the property wrongfully replevied by the plaintiff. And in detinue, the execution may command the goods, for which, or for the price of which, the plaintiff sues, to be seized and restored to him. When the execu- tion has been served according to its nature, it must be returned to court, with an account of the doings of the sheriff endorsed thereon. If the judgment is satisfied, 13 194 ELEMENTARY' LAW. proceedings are at an end. If it is unsatisfied, otter exe- cutions may be issued, at any time within such period as the statute permits, until satisfaction of the judgment be obtained. Read 3 Bl. Comm., pp. 412-425. Bac. Abr., Execution. Com. Dig., Execution. Stephen PL, p. 116. 2 Tidd Prac, pp. 1030-1086. EQUITABtfe BEMEDIES. 195 CHAPTER VI. OF EQUITABLE REMEDIES. § 313. Of FroMbitory and Mandatory Injunctions. Equitable remedies are those wliich are applied by courts of equitj', in cases where the only proper legal remedies would fail to give adequate relief. They are of two classes : (1) Those which are designed to prevent the com- mission or continuance of wrongs ; (2) Those which are designed to redress wrongs already committed. Those which are designed to prevent wrongs are called injunc- tions; An injunction is a mandate, issuing out of a court of equity and enjoining the respondent, under suitable pen- alties, to refrain from the commission of some wrongful act, or to prevent the continuance of some wrong already in operation. When it merely forbids the doing of an act, it is known as a prohibitory injunction. Where it necessi- tates the doing of an act in prevention or suppression of a wrong, it is known as a mandatory injunction. Kead 1 Story Eq. Jur., §§ 25-33, 59-74. 2 Story Eq. Jur., §§ 861, 862. Willaid Eq. Jur., pp. 341, 342. Kerr Inj., pp. 11, 230-232, 605-646. Highlnj., §§1,2, 982-996. § 314. Of Temporary and Perpetual Injunctions. An injunction, as to its eflfect, may be either temporary or perpetual. A temporary injunction prohibits the commis- sion of the alleged wrongful act only until some definite date, or until further order of the court. Its object is to pre- 196 ELEMENTARY LAW. serve the rights of parties intact, until the merits of the controversy can be fully investigated. When such injunc- tions are issued upon the application of the petitioner, without previous notice to the respondent, they are called ex ■parte injunctions. A perpetual injunction is granted at the conclusion of an investigation, and forever prohibits the contemplated wrong. Read 2 Story Eq. Jur., § 873. WillardEq. Jur., p. 341. Kerr Inj., pp. 11, 12, 224-230. High Inj., §§ 3-17, 878-945, 1001-1019. § 315. Of Injunctions against Fraud. The principal purposes, for which injunctions may be issued, are the following: (1) To prevent fraud; (2) To prevent irreparable injury to property ; (3) To prevent certain wrongs against personal security ; (4) To prevent certain wrongs against relative rights. Fraud embraces ever}' kind of artifice, by which one person can obtain an unjust advantage over another. It may consist in actual falsehood and deceit, or in the concealment of material facts, or in any other acts by which a proper confidence and trust are violated. It is also implied, in equity, from the circumstances or relations of certain contracting par- ties, and from the intrinsic nature of certain transactions. Any attempt to enforce against another an advantage ob- tained over him by fraud, whether such advantage were obtained by proceedings at law, or by a contract, or in any other manner, may be frustrated by an injunction. Read 1 Story Eq. Jur., §§ 187-189. 2 Story Eq. Jur., §§ 874-908. Willard Eq. Jur., pp. 345-367. Adams Eq. Jur., pp. 194-197. Kerr Inj., pp. 13-51. , High Inj., §§ 44, 45, 84-89, 109-128, 248, 709-782. EQUITABLE EEMEDIES. 197 § 316. Of Injunctions against Irreparable Injury to Property. An irreparable injury to property is an injury for which the owner of the property cannot be compensated by the mere payment of monej'. In reference to real property, waste, nuisance, and certain forms of trespass are gener- ally regarded as irreparable injuries. The destruction of some kinds of personal propertj', the infringement of pa- tents, copj-rights, and trade-marks, and sometimes even the misuse of personal propertj-, in which another has an interest, are of the same nature, and, like them, may be prevented by injunction. Kead 2 Story Eq. Jur., §§ 909-959. Willard Eq. Jur., pp. 367, 368, 370-401. Adams Eq. Jur. , pp. 207-219. Kerr Inj., pp. 196-200, 235-255, 267-274, 287-297, 332-334, 337-340, 350, 354, 380-369, 393-395, 400-403, 439, 441-445, 474- 489, 492-497, 535-539, 590-597. High Inj., §§388-673. § 317. Of Injunctions against Injuries to Health and Comfort. The wrongs against personal securitj^, for the preven- tion of which injunctions are most frequently issued, are injuries to health. These are all classed under the head of nuisances, and may arise from the production, by an- other, of offensive and injurious odors or disagreeable noises, or from the collecting together of persons, in a turbulent manner, to the disturbance of the peace and quiet of a neighborhood, or from the keeping unguarded of ferocious animals in such a manner as to excite fear and apprehension, or from any other acts of similar character 198 ELEMENTARY LAW. and effect. ..Injunctions have also been granted to .pre- vent threatened assaults. Bead 2 Story Eq. Jar., § 926. Willard Eq. Jur., pp. 389, 390. Kerr Inj., pp. 360-366. High Inj., §§ 491-493. § 318. Of Injunctions against Injuries to Relative Rights. "Wrongs against relative rights may be prevented by injunction, when irreparable injury might otherwise be committed. Thus a guardian may, by injunction, prevent the marriage of an infant ward ; a parent may obtain the same relief bj' settling property upon his child, and pro- curing himself to be appointed as its guardian ; parents may be enjoined against an unwarranted interference with their children, and a husband may be enjoined against tyrannical restraint upon his wife. Read 2 Story Eq. Jur., §§ 1341-1360. Willard Eq. Jur., p. 369. Kerr Inj., pp. 597-599. § 319. Of the Specific Performance of Contracts. Equitable remedies of the second class are applied chiefly in the following cases : (1) To secure the specific performance of certain contracts ; (2) To set aside cer- tain contracts ; (3) To correct the language of written contracts in accordance with the original intention of the parties ; (4) To give an equitable interpretation to con- tracts ; (5) To relieve against fraud ; (6) To settle mutual accounts, where, by reason of the number of the parties or the cha,racteir of their respective claims, justice cannot.be dona EQUITABLE REMEDIES. 199 in a court of law ; (7) To foreclose or redeem mortgages ; (8) To regulate the separate property of married women ; (9) To appoint and control receivers ; (10) To regulate trusts; (11) To perpetuate evidence; (12) To compel a discovery ; (13) To enforce or set aside awards ; (14) To aid the execution of the judgment of a court of law. The specific performance of a contract can he enforced only in a court of equit}-, the only redress, obtainable at law for breach of contract, being a money-compensation for the damage actuallj* sustained. In many eases, how- ever, such a compensation would be entirely inadequate. This is especially true of contracts for the sale of lands, where the vendor refuses to perfect the sale, but is also true in many contracts concerning personal property. In all such cases, if the contract is fair, equitable, and capa- ble of being fully executed, a court of equity will order that it be specifically performed by the defaulting party. Kead 3 Bl. Comm., p. 426 n. 1. 2 Story Eq. Jur., §§ 708-793 b. Willard Eq. Jur., pp. 263-300. Adams Eq. Jur., pp. 77-92. § 320. Of the Rescission of Contracts. A court of equity will also set aside or abrogate a con- tract which it would be inequitable to enforce. In general, a contract, entered into honestly and understandingly by both parties, will bind both, however disadvantageous to one or the other the performance of the same may be. But when either party has practised any fraud upon the ' other, or taken advantage of any confidential relationship between them, or exercised undue influence over the other, or where both parties have entered into the contract under a mistake, or where the contract is itself contrary to pub- lic policy, it is within the province of the court to protesct 200 ELEMENTARY LAW. the just rights of the parties, by decreeing that the con- tract shall be null and void. Bead 1 Story Eq. Jur., §§ 191-251, 260-348, 384. 2 Story Eq. Jur., §§ 692-707. Willard Eq. Jur., pp. 302-304. Adams Eq. Jur., pp. 174-191. Kerr Inj., pp. 47-51. § 321. Of the Correction of Mistakes. The correction of mistakes, made by the parties in the language of their written contracts, is the peculiar duty of a court of equity. A court of law can recognize only the contract as actually written, and as interpreted according to the rules of law. Equity, however, has the power to carry out the exact intention of the parties, whatever the language which they have mistakenly employed, and to reform and amend the written instrument to make it cor- respond with their intention. These mistakes must have been mutual, since otherwise there could have been no such meeting of the minds of the parties, as to constitute a con- tract with which the written contract can be made to cor- respond ; and, in such cases, if the written contract cannot be set aside for fraud or other cause, the parties must abide by its interpretation in the courts of law. These mistakes may have been either as to some material fact, or as to some matter of form, or even, in some cases, as to matter of law. Kead 1 Story Eq. Jur., §§ 110-181. Willard Eq. Jur., pp. 59-84, 300-802. Adams Eq. Jur., pp. 168-174. Kerr Inj., pp. 52-55. § 322. Of the Interpretation of Contracts. Contracts have usually the same interpretation both in law and equity. The rules which govern courts of equity. EQUITABLE REMEDIES. 201 in this respect, are, however, less rigid than the rules of law ; and the true intention of the parties, when it can be ascertained, will always be regarded. Read 1 Story Eq. Jur., §§ 156-160, 168, 179-181. 2 Story Eq. Jur., § 1531. Kerr Inj., pp. 55, 497-501. § 323. Of Relief against Fraud. Courts of equity also afford relief in all cases where fraud of any kind has been, or is about to be, practised by one person against another. Equitable jurisdiction, in matters involving this form of injurj', is most extensive, and relief ma}- be obtained in anj- manner which the cir- cumstances of the particular case require. When a contract is tainted with fraud it may be set aside, or so far enforced onlv as equity requires. Where penalties and forfeitures are legally due from one person to another, but cannot be honestly and justly insisted on, equity will compel the latter to forego his claim. Where a principal refuses to indemnify his surety^ or a trustee refuses to give a proper bond for the performance of his duties, equity can compel them to fulfil the obligations, which legally or justly rest upon them. Where one creditor has two funds, by which his debt is secured, and a subsequent creditor has security in only one of these funds, equity will marshal the securities by compelling the former creditor to resort to and exhaust the fund, in which he is solely interested, before applying the other to the satisfaction of his debt. When title-deeds are in the possession of a person, who has no right to retain them, equity will compel him to deliver them to the owner of the land. Where void or satisfied notes, or other obliga- tions, are in the hands of a payee or other person who has no right thereto, equity will compel their return to the alleged maker. In all these cases, as in any others where it would 202 ELEMENTAEY LAW. be unjust to leave the parties in statu quo, or would enable one to work an injury to another, or to drag him into useless litigation, equity affords prompt and sufficient remedies. Read 1 Story Eq. Jur., §§ 78-110, 184-440, 550-577, 633- 645. 2 Story Eq. Jur., §§ 692-707, 849, 850, 1301-1826. Willard Eq. Jur., pp. 55, 56, 145-259, 304r-308, 337-339. Adams Eq. Jur., pp. 106-109. Kerr Inj., pp. 31-51, 69-98. § 324. Of Account, Equitable Assignment, and. Inter- pleader. The determination of a controversj', involving the account of one person against another, is within the ordinary juris- diction of the courts of law. A court of law, however, with its peculiar systems of pleading, trial, and judgment, cannot adjust reciprocal accounts where more than two interests are represented, or where some of the conflicting interests are legal and others merely equitable. Thus, in the settlement of copartnership affairs, when there are more than two partners, or in cases where each of the contending parties has an account against the other, con- cerning which dispute exists, a court of equity alone can take cognizance of all the rights in controversj', and do justice to the several interests of each. Thus, also, where the equitable owner of a chose in action, who, not having the legal interest, cannot sue thereon at law, proceeds against the other party to the contract, he must seek the aid of equity. And where two different parties make a claim, for the same subject-matter, on a third party who does not know which claim to recognize, the latter may compel the EQUITABLE REMEDIES. 203 claimants y attorney or solicitor ; and against such as fail to appear the bill may generally be talcen pro confesso, and a decree be entered in favor of the petitioner. Upon appearance, it becomes the duty of the respondent to demur, or plead, or answer, as the exigencies of the case demand. Read 3 Bl. Comm., p. 445. Adams Eq. Jur., pp. 324, 326-329. Mitford and Tyler Eq. PL, pp. 432, 433. 1 Daniell Ch. Prac, pp. 499, 500, 558-564. § 337. Of Demurrers. A demurrer in equity is a pleading, in which the respon- dent points out some defect in the bill, as a reason why he should not be compelled to answer further to its allega- 14 210 ELEMENTARY LAW. tions. This defect must, of course, be apparent on the face of the bill, and may consist either in a want of juris- diction in the court, or in the incapacity of the parties to sue or be sued, or in the want of proper allegations in the bill itself. If a demurrer is sustained, the petitioner may amend his bill, and cure, if possible, the defects therein ; if it is overruled, the respondent may plead or answer, as he deems expedient. Read 3 Bl. Comm., p. 446. Story Eq. PL, §§ 436-646. Adams Eq. Jur., pp. 333-336. Mitford and Tyler Eq. PL, pp. 202-811. 1 Daniell Ch. Prac, pp. 564^572, 623-629. § 338. Of Pleas. A plea in equity is a special answer, in which the respon- dent urges some particular defence, by which the issue may be reduced to a single point. Such particular defences are a want of jurisdiction in the court, incapacity of the parties, or some statute, or matter of record, or other mat- ter of fact, which defeats the claim of the petitioner. If this plea is sustained, the petitioner may amend his bill, or, if that be impossible, the plea will be a bar to his re- covery on so much of the bill as is answered by the plea. If the plea is overruled, the respondent must answer, or suffer a decree to be taken against him. Bead 3 Bl. Comm., p. 446. Story Eq. PL, §§ 647-837. Adams Eq. Jur., pp. 336-342. Mitford and Tyler Eq. PL, pp. 311-393. 1 Daniell Ch. Prac, pp. 630-651, 654, 655, 717-722. § 339. Of Answers. An answer in equity is a denial, or a confession and avoid- ance, of all the material allegations in the bill. Respon- PROCEEDINGS IN EQUITY. 211 dents, who are jointly interested, should answer jointly ; those severally interested may answer separately. An insufficient answer may be excepted to by the petitioner, and, if the exception is sustained, a further answer will be ordered by the court. Read 3 Bl. Comm., pp. 446, 447. Story Eq. PI., §§ 838-876. Adams Eq. Jur., pp. 342-345. Mitford and Tyler Eq. PI., pp. 393-411. 1 Daniell Ch. Prac, pp. 723-786. § 340. Of Replication. Amendments. Upon the filing of the answer, the petitioner may, if he deems it necessary, further amend his bill, or he may file a replication, to which the respondent maj', if necessary, re- join ; and the pleadings may thus proceed until an affirma- tion upon one side, and a denial on the other, is attained, and the parties are prepared to submit their controversy to the investigation and determination of the court. Read 3 Bl. Comm., p. 448. Story Eq. PI., §§ 877-905. Adams Eq. Jur., pp. 346, 347. Mitford and Tyler Eq. PI., pp. 412-414. 2 Daniell Ch. Prac, pp. 826-830. § 341. Of Trial and Evidence. Issues of fact are, in equity, tried and decided by the judge, and not by a jury. The evidence is taken, either before the judge himself, or before commissioners ap- pointed for that purpose by the court. The rules, which govern the admissibility and production of the evidence, are, in general, the same as in courts of law, except in 212 ELEMENTAEY LAW. reference to the admissibility of oral evidence to explain, rebut, or correct a written instrument. Read 3 Bl. Comm., pp. 449-452. Adams Eq. Jur,, pp. 362-373. Mitfoi-d and Tyler Eq. PL, pp. 458-469. 2 Darnell Ch. Prac, pp. 831-981. § 342. Of Decrees. The judgment of a court of equity is called a decree. If the judgment is in favor of the respondent, the bill is dis- missed. If it is in favor of the petitioner, the decree orders the respondents, under a suitable penalty, to do, or to re- frain from doing, the acts specified therein. The process, bj- which information as to this order is communicated to the respondents, answers to the execution in a court of law. If the respondents fail to execute the order of the court, the petitioner may sue for the penalty, or the respondents may be arrested, and punished by fine and imprisonment, for contempt of court. Read 3 Bl. Comm., pp. 452-454. Adams Eq. Jur., pp. 375-395. Mitford and Tyler Eq. PI., pp. 469-471, 490-492. 2 Daniell Ch. Prac, pp. 1000, 1059, 1060. § 343. Of Bills of Review. A decree in equity, like a judgment at law, is final, un- less reversed on account of error on the face of the record, or the discovery of some new evidence. The proceeding, in which such claims are urged and determined, is called a hill of review. Read 3 Bl. Comm., p. 454. Story Eq. PI., §§ 403-428. Adams Eq. Jur., pp. 416-420. Mitford and Tyler Eq. PI., pp. 181-192, 483-488. 2 Daniell Ch. Prac, pp. 1626-1647. PUBLIC EIGHTS. 213 BOOK III. OF PUBLIC EIGHTS. § 344. Of the Nature of Public Rights. Public rights are the rights, which a state possesses over its subjects, and which the subjects, in their turn, possess iu or against the state. In contemplation of law, a state is a political person, endowed with certain rights, and charged with the performance of certain duties. Some of these rights and duties arise out of its relations toward other states, and the rules, by which these are defined and regulated, constitute that division of the law called inter- national law. Other rights and duties arise out of its rela- tions toward its own subjects, and the rules, bj' which these are defined and regulated, constitute one branch of municipal law. The extent and character of the rights and duties, of the latter class, depend mainly upon the nature of the state, and upon the theory of civil government, which underlies its institutions. Kead 1 Bl. Comm., pp. 146, 233-239. Vattel, B. i, § 2. 2 Buriamaqui, pp. 29-41. Austin Jur., Lect, xliv, Pomeroy Mun. Law, § 622. 214 ELEMENTARY LAW. CHAPTER I. OF THE NATURE AND FUNCTIONS OF A STATE. § 345. Of the State. According to the theory, which forms the basis of Amer- ican institutions, a state is a political society, organized by the common consent of the inhabitants of a certain terri- tory, for purposes of mutual advancement, protection, and defence, and exercising whatever powers are necessary to that end. Read Vattel, B. i, §§ 1, 4, 14-23, 31. 1 Burlamaqui, pp. 134, 135. 2 Burlamaqui, pp. 1-15, 23-29, 73. Declaration of Independence, federalist, No. xixix. 1 Wilson, pp. 304-312. Jameson Const. Conv., §§ 18-26. Woolsey Int. Law, §§ 36, 37, 53, 56, 58. Cooley Const. Lira., pp. 1, 2. Cooley Const. Law, pp. 20-22. § 346. Of the Formation of the United States. The United States is such a political society. It was organized by the common consent of the people, inhabiting its territory, to the terms of the compact called the Federal Constitution, and is endowed with those powers, and those only, which are essential to its accomplishment of the pur- poses, for which it was created. The original thirteen States are societies of the same nature. Their existence, as com- NATURE AND FUNCTIONS OF A STATE. 215 munities, began in the common consent of the colonists, of whom they were composed, and, at the Revokition, they came into being, as independent political societies, not more by their deliverance from the English crown, than through the tacit acceptance of them, bj- their members, as the States to which they respectively belonged. Even though no precise act could be designated as the formation of such States by their people, yet the fact that the peo- ple of each State, by adopting the Federal Constitution, stripped their State of its chief attributes of sovereigntj-, and lodged them in another political society, would dem- onstrate that the individual State, as well as the United States, regards its organization as derived from the com- mon consent of its members, and that it owes to them all its prerogatives and powers. The formation of those States, which, since 1789, have been created within the territories of the United States, and the mode and condi- tions of their organization, and admission to the Union, are stUl clearer illustrations of the same theory. Read Federalist, No. xxxix-xlvi. Jameson Const. Conv., §§ 27-51, 125-216.- 1 Kent Comm., Leot. x, xix. Frothingham Rise Rep., pp. 13-32, 104, 403-610. Walker Am. Law, §§ 6, 8-15, 24-29. Const. U. S., Preamble. Cooley Const. Lim., pp. 5-11, 21-28. Cooley Const. Law, pp. 1-19, 169-177, 194-198. 1 Story Const., §§ 207-280, 306-372, 4.57-517. § 347. Of the Dissolution of the State. A political societj", which derives its existence from the common consent of its members, may, by the same con- sent, be re-organized or dissolved. The people of the United States thus have the right to modify its fundamen- 216 ELEMENTAEY LAW. tal law, to change the character of its government, or even to abolish it altogether. The people of the individual States have the same power over their organization, though subject to the limitations voluntarily accepted bj' them, in their adoption of the Federal Constitution. Such act, how- ever, must be the act of the whole people, not of any frac- tional part thereof ; and the whole people act, only when such change or abolition is made in the manner previously pro- vided bj- law, or where all actually unite in the measures which modify or overthrow the state, or when those, who have withheld themselves from active participation in such measures, submit, either willingly or unwilUngly, to the result. Read Vattel, B. i, §§ 32-36. 2 Burlamaqui, pp. 90-97. Declaration of Independence. Walker Am. Law, § 89. Cooley Const. Lim., pp. 28-34, 598. Cooley Const. Law, pp. 25, 28. § 348. Of the Supreme Power of the People. The state is thus, in the American idea, entirely in the hands of the people. It derives all its just powers from the consent of the governed. It exists only to secure to its subjects the enjoj^ment of their inalienable rights ; and when it fails to protect, or becomes destructive of, those rights, "it is the right of the people to alter or abolish it, and to institute a new government, laj"ing its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safetj' and happiness." This idea lies at the foundation of every cor- rect interpretation of American public law, whether it be the law of public rights or the law of public wrongs, and must especially be regarded in comparing the public law of NATURE AND FUNCTIONS OF A STATE. 217 Other nations with our own, and in attempting to apply to American institutions, or the American people, the princi- ples which regulate and govern foreign states. Read Declaration of Independence. Const. U. S., Preamble. Jameson Const. Conv., §§ 54-62. Cooley Const. Lim., pp. 28, 37. Cooley Const. Law, pp. 22-25. § 349. Of the Functions of the State. Government. The functions of a state are of three kinds : Legislative ; Executive; and Judicial. In discharge of its legislative functions, the state makes law. In discharge of its execu- tive functions, it enforces law. In discharge of its judicial functions, it interprets and applies law. The exercise of these three functions is government; and the persons or bodies, by whom they are exercised, taken collectively, are sometimes called the government. Read 1 Bl. Comm., pp. 146-149, 154, 155, 160, 161, 266- 270. 2 Burlamaqui, pp. 51-54. Federalist, No. xlvii-li. 1 Wilson, pp. 394-411. Cooley Const. Law, pp. 43-45. § 350. Of the Government of the United States. In ancient times, as in most countries in our own day, these three functions were centred in one man, or body of men, who thus became the supreme ruler of the state. But in the United States, and in each individual State, the leg- islative, executive, and judicial powers are separated from each other, and lodged in persons, or in public bodies, who are entirelj' distinct from one another, and, at the same 218 ELEMENTARY LAW. time, are so constituted that each shall serve as a salutary restraint upon the others. All these persons and public bodies are representatives of the people, are chosen by the people, and are answerable to the people for any breach of duty, or abuse of power. Bead 1 Bl. Comm., pp. 49-52. 2 Burlamaqui, pp. 41-45, 55-73. 1 Wilson, pp. 389-394, 415. Walker Am. Law, §§ 4-7. 1 Story Const., §§518-544. § 351. Of the Legislative . Function. ITie legislative function, in the United States, is exercised by Congress, and, in the individual States, by their respec- tive legislatures. Both Congress and these State legisla- tures are again divided into two bodies or houses, each of which has its separate powers and duties, but yet can make no law without the sanction of the other. These houses can exercise their legislative powers, only when in actual and lawful session. Read Federalist, No. lii-Ixvi. 2 Wilson, pp. 122-181. 1 Kent Comm., Lect. xi. Walker Am. Law, §§ 30-37. Cooley Const. Lim., pp. 85-92, 115-136. Cooley Const. Law, pp. 45-51. 1 Story Const., §§ 545-570. § 352. Of the Executive Function. The executive function is exercised by the President of the United States, and by the Governors of the individual States. Each has control over the military resources of his state, and is bound to use them, whenever it is necessary in order to enforce the law. Each has the power to veto NATURE AND FUNCTIONS OF A STATE. 219 any measm-e of the legislature, and thereby compel it to reconsider, and either repeat or rescind, its action. Each also has a power, differently limited in different states, over the reprieve ov pardon of convicted criminals. These powers belong to the executive, as such, and are derived, not bj' delegation from a superior authority, or by any legislative act, but from the constitution and organization of the state itself, and cannot be usurped or modified Ity either of the other branches of the government. Head Federalist, No. xlvii-lxxvii. 1 Kent Comm. , Lect. xiii. Walker Am. Law, §§ 38-43. Cooley Const. Lim., pp. 11, 115, 116, 153-155. Cooley Const. Law, pp. 51, 100-107, 159-163. 1 Story Const., §§ 881-891. 2 Story Const., §§ 1410-1572. § 353. Of Subordinate Executive -Officers. Certain subordinate executive functions are exercised by other officers, either in pursuance of some legislative enactment, or in obedience to some mandate of judicial or executive authority. Such officers are marshals, sheriffs, jailers, constables, and others, by whatever name they may be known, whose dutj' it is to execute and enforce the laws. Read 1 Bl. Comm., pp. 339-849. 1 Kent Comm., Lect. xiv, pp. 309-311. Walker Am. Law, § 48. 1 Abbott U. S. Prac, pp. 268, 269. § 354. Of the Judicial Function. The Supreme Court. The judicial function is exercised by the courts of the United States, and of the individual States. The courts of the United States are three : the Supreme Court ; the 220 ELEMENTAEY LAW. Circuit Courts ; and the District Courts. The Supreme Court consists of a chief justice and associate justices, and has jurisdiction over all cases, in which an ambassador, a public minister, a consul, or a State may be a party, or which may lawfuUj' be brought before it by appeal. This court sits only in Washington. Kead Federalist, No. Ixxviii-lxxxiii. 2 Wilson, pp. 201-223. 1 Kent Comm., Lect. xiv, pp. 290-301; Lect. xt, xvi. Walker Am. Law, §§ 44, 45, 49. Cooley Const. Lim., pp. 12-15, 44-54, 399-413. Cooley Const. Law, pp. 52, 53, 108-140. Curtis U. S. Courts, pp. 1-93. 2 Stoi7 Const., §§ 1573-1795. 1 Abbott U. S. Prac, pp. 167-181, 312-343. § 355. Of the Circuit Courts. 77(6 Circuit Courts each consist of three judges : a jus- tice of the Supreme Court ; the judge of the District Court for the district in which the Circuit Court is held ; and the Circuit judge. These courts have jurisdiction over civil causes, involving five hundred dollars or upwards, which are brought bj' a citizen of one State against a citizen of another State, or in which the United States is plaintiff, or in which an alien is a party. They also have jurisdiction over matters in bankruptejs over certain cases arising un- der the revenue laws, over all cases lawfully brought before them by appeal from the District Courts, and over all crimes cognizable under the authority of the United States, unless the Acts of Congress otherwise direct. Kead 1 Kent Comm., Lect. xiv, pp. 301-303. Walker Am. Law, §§ 45, 49. Curtis U. S. Courts, pp. 94-198. 1 Abbott U. S. Prac, pp. 299-311. NATURE AND FUNCTIONS OF A STATE. 221 § 356. Of the District Courts. The District Courts each consist of one judge, resident in the district. These courts have jurisdiction over all admi- raltj' and maritime causes and all matters in bankruptcy, and over all penal and criminal matters cognizable under the laws of the United States, exclusive jurisdiction over which is not vested either in the Supreme or Circuit Courts. Read 1 Kent Comm., Lect. xiv, pp. 303-305; Lect. xvii. Walker Am. Law, §§ 45, 49. Curtis U. S. Courts, pp. 254-287. 1 Abbott U. S. Prac, pp. 283-298. § 357. Of the Courts of the Individual States. There is no uniformity among the individual States, either as to the number or the organization of their courts. In every State there is some supreme tribunal, by which all questions as to the interpretation of laws, and their appli- cability to given states of fact, are finally and conclusively determined. Under these, are one or more inferior courts, in which all cases, ci^•^l or criminal, which are not within the exclusive jurisdiction of the courts of the United States, may be heard and decided. But the mode in which these courts maybe created, their particular jurisdiction,- the ap- pointment or election of their judges, their terms of ofHce, and their duties, are matters upon which each State has legislated for itself, and still, from time to time, exercises its reorganizing powers. Read 2 Wilson, pp. 290-296. Walker Am. Law, §§ 46, 47, 50. Pomeroy Mun. Law, § 157. § 358. Of the Exercise of Judicial Functions. Judicial functions can be exercised by courts, only when they are in actual session at the times and places specified 222 ELEMENTARY LAW. by law, and in the manner which the law provides. Pro- ceedings at another time and place, or in another manner, though in the personal presence and under the direction of a judge, are coram non judice, and void. Read 2 Wilson, pp. 211, 212. 2 Addison Torts, § 884. Cooley Torts, pp. 416, 417. 3 Chitty Gen. Prac, p. 11. 1 Abbott U. S. Prac, pp. 186-188. Cooley Const. Lira., pp. 96, 107. § 359. Of Officers De Jure and De Facto. These several governmental functions can be lawfully exercised only by officers duly elected or appointed there- unto. Such an officer is called an officer de jure. Yet if a person should usurp an office and exercise its functions, under color of an election or appointment in itself not legal, he becomes an officer de facto, and his official acts are valid in reference to the rights, which innocent third per- sons ma}' acquire thereby. Read 1 Bl. Comm., p. 204. 2 Hill Torts, Ch. xxix, §§ 1 note a, 30. Cooley Torts, pp. 401, 402. Cooley Const. Lim., p. 618 n. 2. State t). Carroll, 88 Conn. p. 449. RELATIONS OF THE SUBJECT TO THE STATE. 223 CHAPTER II. OF StTBJECTS AND THEIE RELATIONS TO THE STATE. § 360. Of Subjects. A subject is a person who is under legal obligation to submit to the authority of a state, in matters relating to the public welfare. The extent of this obligation depends upon the poUtical character of the subject, and the duties he may owe to other states. Eead 1 El. Comm., pp. 369, 370. 2 Burlamaqui, pp. 29-31. Jameson Const. Conv., §§ 52, 53. § 361. Of Allegiance. The tie, which binds the subject to the state, is called allegiance. It originates in the compact, which is pre- sumed to have been made, between the subject and the state, at the commencement of their political relations with each other, and is at once the foundation and the measure of the rights, which the state has in its subjects, and which they, in their turn, possess in, or against the state. Allegiance is of two kinds : Natural and Local. Natural allegiance is universal and perpetual. It cannot be forfeited, cancelled, or released by any change of time, or place, or circumstance. Only his own death, or the act of the state, can discharge the subject from its obligations. Local allegiance is territorial and temporary. It binds the 224 ELEMfiNTAKY LAW. subject while actually within the state, but may at any time be terminated by his removal from it. Read 1 Bl. Comm., pp. 366-374. 2 Kent Comm., Lect. xxv, pp. 42-49, 63, 64. Woolsey Int. Law, §§ 66, 74. § 362. Of Native-Born Citizens. Subjects are of two kinds : Citizens and Aliens. A citizen is one who owes to the state, of which he is a citi- zen, an universal and perpetual allegiance. Citizens of the United States are of two classes : Native-born, and Naturalized. A native-horn citizen is one who was born within the jurisdiction and allegiance of the United States. The jurisdiction of the United States is co-extensive with its territory, and embraces all persons resident therein, except Indians and the offloial representatives of foreign states. The allegiance of the United States includes all its citizens, whether at home or abroad, and all other persons, (except Indians, and the ofHcial representatives of foreign states,) who are permanently domiciled within its jurisdic- tion. The persons, born within this jurisdiction and alle- giance, are the following : (1) Those born, either at home or abroad, of parents who are citizens ; (2) Those born, within the territory of the United States, of alien parents (Indians, and the official representatives of foreign states excepted) who are permanently domiciled within the United States. Eead 1 Bl. Coram., pp. 366, 374, 37.5. Vattel, B. i, §§ 212, 213, 215-217. 2 Kent Comm., Lect. xxy, pp. 39-42. Walker Am. Law, § 54. Pomeroy Mun. Law, §§ 718, 720, 722. Cooley Const. Law, pp. 241-243. KELATIONS OF THE SUBJECT TO THE STATE. 225 § 363. Of Naturalized Citizens. A naturalized citizen is one who was originally a citizen of a foreign state, but by the act of the United States has been adopted as its citizen. The right of a citizen thus to determine his allegiance to the state in which he was born, and assume the obligations ■ of natural allegiance toward another state, has been always controverted, and, even in the United States, seems opposed to the current of judi- cial opinion. The right, however, has been practically exercised for many years, and has been expressly affirmed by Acts of Congress. It has also recently obtained a legal sanction, by means of treaties between the United States and certain foreign powers. Eead 1 Bl. Comm., pp. 369, 370. Vattel, B. i, §§ 214, 220-226. 1 Wilson, pp. 312-317. 2 Kent Comm., Lect. xxv, pp. 42-50. Woolsey lut. Law, §§ 65, 70. • "Walker Am. Law, § 54. Pomeroy Man. Law, §§ 721, 723. § 364. Of Naturalization. The subject of naturalization is regulated by the statutes of the United States. Those statutes recognize four classes of persons, as entitled to become adopted citizens : (1) Persons who have resided in the United States since June 18th, 1812 ; (2) Persons over twenty-one j-ears of age, who have resided in the United States for a period of at least five years, and legally declared their intention to become citizens of the United States more than two years before their naturalization ; (3) Persons over twentj'-one j-ears of age, vrho have resided in the United States for a continuous period of five j-ears, three of which were during their minority ; (4) Persons over twent3'-one years of age, who have resided in the United States for one year, and 15 226 ELEMENTARY LAW. who have served in the military forces of the United States, and have been honorably discharged therefrom. Any such persons, appearing before a court of record, proving their compliance with these conditions, and taking the requisite oaths of allegiance, are admitted, together with such of their minor children as are resident in the United States, to all the privileges and responsibilities of citizen- ship. Kead 2 Kent Comm., Leot. xxv, pp. 51-53, 64-66. Walker Am. Law, § 54. Cooley Const. Law, pp. 243, 244. Eev. Stat. U. S., 1878, Tit. xxx. § 365. Of Aliens. An alien is a person born outside of the jurisdiction and allegiance of the United States, and not naturahzed therein. Such persons, (Indians, and the representatives of foreign states excepted,) when within the terrttorj' of the United States, owe thereto a local and temporary alle- giance. They are of two classes : Alien-friends and Alien- enemies. An alien-friend is an alien, resident in the United States, and with whose state the United States is at peace, An alien-enemy is an alien, resident in the United States, and with whose state the United States is at war. Read 2 Kent Comm., Lect. xxv, pp. 50, 51. Walker Am. Law, § 54. § 366. Of Citizens of the Individual States. All citizens of the United States are citizens of the in- dividual State, in which they were born or naturalized, or in which they may have become permanently domiciled. They are entitled to enjoy, during their residence in or RELATIONS OF THE SUBJECT TO THE STATE. 227 transit through any other State, all the immunities and privileges which belong to its own citizens. Eead Const. U. S., Art. iv, Sec. 2 ; Amend, xiv, Sec. 1. Pomeroy Mun. Law, § 724. Cooley Const. Lim., pp. 15-17, 397, 487. Cooley Const. Law, pp. 187-189, 245-248. 2 Stoiy Const., §§ 1930-1968. 228 ELEMENTARY LAW. CHAPTER III. OP THE EIGHTS OF A STATE OVEE ITS SUBJECTS. § 367. Of the Hights of States in General over theix Subjects. The nature and extent of the rights, which the state has over the subject, depend upon the character of the state, and the relations which the subject may sustain to other states. The United States, and each individual State, was constituted solely for the protection and defence of its own subjects, and its rights over them are limited, by its organization, to such measures as are necessary to that end. Moreover, the United States derives its powers en- tirely from the Federal Constitution, and has no rights except such as are expressly granted therein, or necessarily implied thereby. Each individual State has also its own Constitution, by which, as well as bj' the Federal Consti- tution, the powers originally inherent in such State are limited. Read 2 Burlamaqui, pp. 6-89. 1 Kent Comm., Lect. xviii, xix. Jameson Const. Conv., §§ 88-95. Cooley Const. Law, pp. 29-37, 142-144. 2 Story Const., §§ 1353-1409. § 368. Of the Rights of the United States over their Subjects. The subjects, ooth of the United States and of each in- dividual State, consist of citizens and aliens. Over its citizens, a state has all the rights which its own character DUTIES OF THE SUBJECT TO THE STATE. 229 and Constitution permit it to possess. Over the alien, re- siding in or passing through its territorj^, it has such rights as may be necessary to its own peace and order, and as, at the same time, are consistent with the duty of the alien to his native state. Subject to these different limitations, the rights of the United States, and of each individual State, are those which every state has over its own subjects, and which are necessarily' contained in the idea of sovereignty. Read Vattel, B. i, §§ 212, 213. 2 Kent Comm., Lect. xxv, pp. 63, 64. § 369. Of Obedience to the State. The rights of a state over its subjects are two : Obedi- ence and Support. Obedience to the state includes: (1) Obedience to the laws, whether enacted by the legislature, or recognized, by the courts, as part of the common law ; (2) Obedience to all legitimate commands of executive officers ; (3) Obedience to all valid judicial orders and decrees. The right to obedience implies the right to com- pel it. For this purpose the state has, and must have, supreme power over the lives, the persons, and the prop- erty of its subjects, and may enforce compliance with its laws, commands, and orders, by any means that may be legally established therefor. Read 4 Bl. Comm., pp. 7-11. Vattel, B. i, §§ 53, 54. 2 Burlamaqui, pp. 130-143. 1 Kent Comm., Lect. xxiv, pp. 13, 14. Walker Am. Law, § 188. § 370. Of Military Service. The right of SuppoH includes : (1) The right to the per- sonal services of the subject, whenever the same are needed 230 ELEMENTARY LAW. for the public welfare ; (2) The right of eminent domain ; (3) The right of taxation. The citizen is liable, at all times, to render personal service in the military or naval forces of the state, to aid in the arrest and pursuit of crim- inals, to render assistance to executive officers whenever legally summoned so to do, to serve on juries, and to do any other act, in the public interest, which the law may, from time to time, require. The alien, on the contrary, is usually exempt from military or naval service, from jury duty, and from any other liability, which is antagonistic to his natural allegiance. Kead Vattel, B. iii, §§ 7-10. 2 Burlamaqui, pp. 157-159. Federalist, No. xsix. 2 Story Const., §§ 1199-1215. § 371. Of Eminent Domain. The right of eminent domain is the right of the state to take private property for public use, upon making due compensation therefor. Everj' species of property, ex- cept money and choses in action, is subject to this right. It can be exercised only in accordance with legislative enactment. All proceedings under it are stricti juris, and the property taken must be necessary for, and appropri- ated to, some public, or quasi public, use. Read Vattel, B. i, § 244. 2 Burlamaqui, pp. 149, 150. Cooley Const. Lim., pp. 523-571. Cooley Const. Law, pp. 331-342. § 372. Of Tazes, The right of taxation is the right of the state to impose burdens or charges upon the persons or property of its DUTIES OF THE SUBJECT TO THE STATE. 231 subjects, in order to raise money for public purposes. Taxation may be either direct, as upon polls and land, or indirect, as in duties and imposts upon articles of con- sumption. In all cases, it must be in strict accordance with legislative authorit}', and for public purposes alone. The United States has no power to tax the means by which the States perform their governmental functions, and the same limitation rests upon the taxing power of States in reference to the governmental agencies of the United States. Aliens, as well as citizens, are liable to taxation, and subject to the exercise of the right of emi- nent domain. Read Vattel, B. i, §§ 240-243 ; B. ii, § 106. 2 Burlamaqui, pp. 147-149. Federalist, No. xxx-xxxvi. Cooley Const. Lim., pp. 479-521. Cooley Const. Law, pp. 54-62. 1 Story Const., §§ 906-1053. 232 ELEMENTARY LAW. CHAPTER IV. OF THE RIGHTS OF THE SUBJECT IN OR AGAINST THE STATE. § 373. Of the Duties of States in General to their Sub- jects. The rights of the subject, in or against the state, are two : Protection and Vindication. These rights are dae to the subject, in return for the allegiance which binds him to the state, and constitute the obligation which the state assumed in that original compact, by which they became politically related to each other. Read 1 Bl. Comra., pp. 233-236, 369. Vattel, B. i, §§ 38-51. 2 Burlamaqui, pp. 97-104. § 374. Of Protection against Wrongs from Co-Snbjects. The protection, which is due to the subject from the state, includes: (1) Protection against wrongs at the hands of co-subjects ; (2) Protection against wrongs at the hands of the state itself; (3) Protection against wrongs at the hands of foreign states. The wrongs, which one co-sub- ject can inflict upon another, are either torts or crimes. These,- it is the duty of the state, as far as possible, to prevent, and this it does when it so discharges the three governmental functions as to secure the highest practicable degree of public peace and order, and, at the same time, places no unnecessary restraint upon the proj)ert3' or per- sons of its subjects. Read 1 Bl. Comm., pp. 125-128, 141. 2 Burlamaqui, pp. 105-107. Walker Am. Law, §§ 78-89. DUTIES OF THE STATE TO THE SUBJECT. 233 § 375. Of Protection against Wrongs from the State. Of wrongs, committed against tlie subject hy the state itself, some are mere torts or crimes, otiiers involve the usurpa- tion and abuse of power. Most wrongs committed by ex- ecutive, and some of those committed by jadicial, officers are among the former ; and agftinst these the state protects the subject, in the same manner as against wrongs com- mitted bj' co-subjects. Unwarrantable acts of legislation, and corruption or incompetenc3' in the courts, lie, however, outside of the ordinary domain of wrongs. Against these the state can protect the subject , only bj' its constitutional safeguards, and hy the restrictions which it throws around the action of its courts and legislatures. Read 2 Hill. Torts, Ch. xxviii, xxix, xxxii. Cooley Torts, pp. .376-425. Cooley Const. Law, pp. 14:4-lo9. 1 Stoiy Const., §§ 533-543. § 376. Of Protection against Wrongs from Foreign States. Wrongs may be committed against the subject by a foreign state, either by its direct governmental act, or bj' its sanc- tion of some wrong, done bj- its own subject. A tort or crime, committed against the subject of one state by the subject of another, becomes the act of that other state, if it protects the wrong-doer from punishment, or denies to the injured party his appropriate redress. In that event, it is the duty of the state, whose subject has been injured, to demand satisfaction from the state, which, first bj' its sub- ject and finally b}' its own act, has committed the wrong. A firm and persistent policy, in thus demanding and en- forcing full regard for their rights, is a duty which every state owes to its subjects, and is the only means by which 234 ELEMENTARY LAW. such rights can be protected against invasion at the hands of foreign states. Kead Vattel, B. ii, §§ 71-78. 2 Burlamaqui, pp. 178, 179. 1 Wilson, pp. 371, 372. Woolsey Int. Law, § 116. § 377. Of the Redress of Wrongs Committed by Co- Subjects. The vindication, which is due to the subject from the state, is the complement of this protection. Entire protec- tion of the subject, by the state, against the commission' of legal -wrongs, is impossible ; and, when protection fails, it is the duty of the state to redress the injuries, which it could not prevent. This redress or vindication includes : (1) Redress of wrongs committed by co-subjects ; (2) Kedress of wrongs committed by the state itself; (3) Re- dress of wrongs committed by foreign states. The redress of wrongs committed by co-subjects is principally accom- plished through the agency of courts. It is, therefore, the duty of the state to establish courts, and to so regulate the procedure therein, as to give redress with certainty, with justice, and without unnecessarj' expense or delaj'. It is also the duty of the state, by appropriate legislation, to provide against such fraudulent concealments of person or property as tend to defeat the ends of justice, to punish as crimes those torts which are either grievously injurious to the subject or of dangerous example, and to adopt all other measures necessarj' to secure that remedy for wrong, which the state, by its organization, pledges itself to afford. Read-1 Bl. Comm., pp. 141, 142. Vattel, B. i, §§ 158-172. 2 Burlamaqui, pp. 106, 107. Walker Am. Law, § 88. DUTIES OF THE STATE TO THE SUBJECT. 236 § 378. Of the Redress of Wrongs Committed by the State. The wrongs which are committed hy the state itself, through its executive or judicial officers, and which are proper] J' either torts or crimes, demand the same redress against the persons, who commit them, as do other wrongs received from a co-subject. In certain cases, also, the state, by its own permission, may be sued in its own courts, as if it were a private citizen. But when the legislature passes laws, which are unwarranted by its constitutional authority and are oppressive to the subject, there is no remedy against the legislative body, or the individuals of whom that body is composed. It is the duty of the courts to treat such laws as invalid, and to decline to aid in their enforcement. When officers, judicial or executive, become corrupt or incompetent, it is the duty of the state to re- move them, and fill their places with competent and honest men. When all the branches of the government unite in an abuse or usurpation of power, the supreme dutj' de- volves upon the people to overthrow the government, and establish a new one, " peaceably if they can, forcibly if they must." Read 2 Burlamaqui, pp. 90-97. Declaration of Independence. Walker Am. Law, § 89. Cooley Const. Lim., pp. 159-188. Cooley Torts, p. 376. Cooley Const. Law, pp. 25, 26, 144-159. 1 Story Const, §§742-813. § 379. Of the Redress of 'Wrongs Committed by Foreign States The wrong, committed by the subject of one state against the subject of another, is in itself merely a tort or crime, and the remedy therefor is to be sought, in the first instance. 236 ELEMENTARY LAW. in the courts of the state, of which the wrong-doer is a sub- ject. If such state refuses redress, and thereby adopts the act of the wrong-doer as its own, it is the duty of the state, of which the injured party is a subject, to demand, from the other state, a reparation for the injurj-, and to enforce its demand by retorsion, reprisal or, when necessarj-, even by actual war. This also is the only remedy, when the sub- ject of one state is injured by the direct action of a for- eign state. Kead Vattel, B. ii, §§ 341-350. 2 Bui'lamaqui, pp. 180-183. Woolsey Int. Law, §§ 78, 116, 118. § 380. Of the Duties of the State to'ward Citizens and Aliens. These rights of the subject, in or against the state, are qualified by the relations, which the subject himself occupies toward other states. To the citizen they belong in their widest extent. Complete protection and vindication at all times, in all places, in all his legal rights, and at all haz- ards, are due to him ; and the state, which withholds these, breaks the compact out of which its own existence sprang, and forfeits the allegiance of the citizen. The alien, on the other hand, has no right to protection or vindication against a foreign state. If he be an alien-friend, the state is bound to protect him against wrongs from itself or his co-subjects, and to afford to him the usual remedies in courts of justice. If he becomes an alien-enemy, these rights, as matters of strict law, are forfeited, and he may be regarded as a pris- oner of war, and all his property may be confiscated by the state. Custom, however, of long standing and con- tinuous observance sufficient almost to have the force of law, has recognized the equitable rights of alien-enemies, DUTIES OF THE SUBJECT TO THE STATE. 237 and tbej- are now treated like alien-friends, as long as they are permitted to remain within the territorj^ of the state. Read 1 Bl. Comm. , pp. 369-372. Vattel, B. ii, §§ 99-115; B. iii, §§ 70-77. 1 Kent Comm., Lect. iii, pp. 56-65. 2 Kent Comm., Lect. xxv, pp. 53-73. Woolsey Int. Law, §§ 05-C9, 71-74, 124-126. Pomeroy Mun. Law, §§ 717, 725-727. § 381. Of the Duties of the United States toward their Subjects. In the United States, these different rights, and their modes of exercise, are further qualified by the character of the United States, or of the individual State, and bj' the lelations which the Federal Constitution has established between them. It is the duty of each individual State to protect its own subject against wrongs at the hands of his co-subject, and to afford redress, for the wrongs committed by its subject, to all persons whatsoever. It is the duty of the United States to protect its subject against certain wrongs at the hands of any state or person, and against all wrongs at the hands of an}- person, except his co-subject of the individual State. It is also the duty of the United States to redress those wrongs, whose commission it is its duty, so far as practicable, to prevent. Read AValk.er Am. Law, §§ 8, 192, 196. Cooley Const. Law, pp. 142-144, 244. PUBLIC WKONGS. 239 BOOK IV. OF PUBLIC WRONGS. § 382. Of Torts and Crimes. Public wrongs are those by -which the rights of the state over the subject, or the rights of the subject in or against the state, are either diminished or destroj'ed. There is a sense in which all wrongs are public wrongs, since they involve an interruption of the duties of the subject to the state, or interfere with that protection which the state owes to the subject. But there are certain wrongs, which do not terminate upon the individual, whose property or person they assail, but reach through and beyond him to the social fabric of which he forms a part, and violate the peace and order of the state. Such wrongs contain an element of evil, which is wanting to the mere private injury. They strike at the foundations of all civil government, and justly are regarded, by the law, as wrongs of a different nature, and as demanding a different redress. Read 4 Bl. Comm., pp. 1-7. Broom Comm., pp. 866-873. 3 Wilson, pp. 4^6. Austin Jur., Lect. xvii, xxvii. IBish. C. L., §§230-278. IB. &H. L. C. C.,pp. 1-34. § 383. Of the Legal Separation of Torts and Crimes. What special wrongs do thus invade the majesty and security of the state largely depends upon the condition of society, and the character of the state itself. An act, 240 ELEMENTARY LAW. ■which, under a free government, would work no public evil, might, if committed under a despotic government, convulse or overthrow the state. An act which, half a century ago, would not have resulted even in private damage, to- day may cause far-reaching injur}' and loss. With every change in society or in the forms of government, and with every development oC commerce, the character and effects of wrongs will also change, and with them must change the position of such wrongs before the law, and the methods which it uses for their prevention or I'edress. Hence it is true, in every case, that crimes are creatures of the law. The state is tlie divider of act from act, and, through its legislature and its courts, defines and specifies what wrongs are to be taken out of the great mass of private injuries, and punished as and for violations of public rights. Read 1 Bl. Comm., pp. 54, 55, 57, 58. 1 H. P. C, pp. 1, 2, 13, 14. 3 Wilson, pp. 7-12. 1 Bish. C. L., §§ 209, 210, 773-785. § 334. Of the Befinitions of Crime. The definitions, which legal writers give of the word crime, differ according to the view they take of it, as denoting an injury to the public, or an act forbidden by the state. The following are illustrations : " A crime is an act committed or omitted in violation of a public law, either forbidding or commanding it." "A crime is an injury so atrocious in its nature, or so dangerous in its example, that, besides the loss that it occasions to the individual who suffers by it, it affects, in its immediate operation or in its consequences, the interest, the peace, the dignity, or the security of the public." A crime is a wrong " which the government notices as PUBLIC WRONGS. 241 injurious to the public, and punishes, in what is called a criminal proceeding, in its own name." A crime is " an offence which is pursued by the sovereign, or by the subordinates of the sovereign." Considered both as a wrong against the public, and an act forbidden and punished by the state, it may be thus defined : A crime is a wrong, directly or indirectly affect- ing the public, to the commission of which the state has annexed certain pains and penalties, and which it prose- cutes and punishes in its own name. Kead 4 Bl. Comm., p. 5. 3 Wilson, p. 4. Austin Jur. , Lect. xvii. 1 Bish. C. L., § 32. 16 242 ELEMENTAEY LAW. CHAPTER I. OF THE ELEMENTS OF CEIME. § 385. Of Criminal Act and Criminal Intent. Every crime contains two elements : The Criminal Act, and The Criminal Intent. The criminal act consists of those external actions or omissions, which the law pro- hibits. The criminal intent is that evil and malicious will, which finds expression in the criminal act. Sead 4 Bl. Comm., pp. 20, 21. Broom Comm., pp. 874-880. 1 H. P. C, pp. 14, 15. 1 Bish. C. L., §§ 204-208, 216-229, 285-291, 330- 334, 337-345. § 386. Of Specific Intent. The law regards some acts as crimes, without reference to the purpose which they were intended to accomplish. Other acts are criminal only when performed with some particular purpose or design. In the latter cases, this de- sign enters into the nature of the act itself, and is called the specific intent. The specific intent and the criminal intent must not be confounded with each other. Thej' have nothing in common, except that both are mental oper- ations. The former determines the purpose, toward the accomplishment of which the act shall be directed ; the latter determines that the act, so directed, shall be done. Nothing can show this difference more clearly than the ELEMENTS OF CRIME. 243 rules, by which the proof of these intents is governed. TKe specific intent, as part of the criminal act, must be alleged and proved, in tlie same manner as anj' other portion of the act. The criminal intent, on the other hand, is neither alleged nor proved, but is inferred from the commission of the act ; and ■when the act itself has been established, the law presumes it to have been the expression of this evil ■will. Read Broom Comm., p. 876. 1 Bish. C. L., §§ 320, 335. 3 Gieenleaf Ev., §§ 13-19. § 387. Of Drunkenness as Affecting Intent. This difference appears still further from the modes, in which the crimes of voluntary drunkards are regarded by the law. The rule is everj-where established, that the com- mission of a criminal act raises the presumption of the criminal intent, notwithstanding that the criminal was drunk, when he committed it. No other rule would be consistent ■with the safety of societj'. But where the existence of a specific intent is necessary to the criminal act, a degree of drunkenness, incompatible with the formation of that in- tent, negatives the act, and disproves the crime. Read Broom Comm., pp. 887, 888. 1 H. P. C, p. 32. 1 Russ. Cr. , pp. 7, 8. 1 Whart. C. L., §§ 32-44. 1 Bish. C. L., §§ 397-416. 1 B. & H. L. C. C, pp. 131-145. § 3S8. Of Infancy as Affecting Intent. Although the criminal intent is thus presumed from the commission of the criminal act, this presumption is not 244 ELEMENTARY LAW. conclusive, but may be rebutted by proof of facts which in- dicate the absence of a criminal intent. Such facts are : (1) That the actor acted while under a certain age ; (2) That the actor acted while in a state of insanity ; (3) That the actor acted under a bona Jide mistake of fact ; (4) That the actor acted accidentally or bj^ chance ; (5) That the actor acted from necessity ; (6) That the actor acted under compulsion. The criminal act of an infant, under fourteen years of age, raises no presumption of a criminal intent. Under the age of seven years, no person can commit a crime ; for, whatever be the act, the law con- clusively presumes the absence of a criminal intent. But between the ages of seven and fourteen, there is no pre- sumption. In such cases, the prosecution must establish the intent, by such distinct and substantive evidence as indicates a guilty knowledge and an evil will. Read 4 Bl. Comm., pp. 22-24. Broom Comm., pp. 889, 890. 1 H. P. C, pp. 16-28. 1 Russ. Cr., pp. 1-6. 1 Arch. Cr. Pr., pp. 7-14. 1 Whart. C. L., §§ 58-65. IBish. C. L., §§ 367-373. 1 B. & H. L. C. C, pp. 71-80. 3 Greenleaf Ev., §§ 3, 4. § 389. Of Insanity as Affecting Intent. An insane person cannot commit a crime. What con- stitutes insanitj^ in this connection, has given rise to much discussion. One of the most famous of recent cases gives the following rule : Whenever a man does not know that the act he is committing is unlawful and morally wrong, and has not reason suflacient to apply such knowl- ■ELEMENTS OF CRIME. 245 edge and to be controlled by it, the law wiU not infer from his act the existence of a criminal intent. Read 4 Bl. Comm., pp. 24-26. Broom Comm., pp. 881-887. 1 H. P. C, pp. 29-37. 1 Euss. Cr., pp. 6-15. 1 Arch. Cr. Pr., pp. 15-12. IWhart. C. L.,§§13-57a. 1 Bish. C. L., §§ 374-396. 2 Bish. C. P., §§ 666-687. IB. &H. L. C. C, pp. 94-145. 3 Greenleaf Ev., §§ 5, 6. McFarland's Case. § 390. Of Mistake as ASecting Intent. It is a necessarj' rule of law, that ignorance of the law excuses no man. One who commits &• criminal act with criminal intent, in ignorance that the act has been made a crime, is not protected by his ignorance, even though it were wholly unavoidable. But this rule has no applica- tion to a case of ignorance of fact. Wherever a person, in good faith and upon a reasonable belief that certain things are true, does an act, which, if those things were true, would not be a crime, the doing of such act under that belief, even if those things were not true, does not raise the presumption of a criminal intent. Read 4 Bl. Comm., p. 27.. IH. P. C.,pp. 42, 43. 1 Russ. Cr., p. 25. 1 Arch. Cr. Pr., p. 55. 1 Whart. C. L., §§ 82, 83. 3 Greenleaf Ev., §§ 20, 21. Rex V. Bailey, Russ. & Ry., p. 1. 246 ELEMENTARY LAW. § 391. Of Accident as Affecting Intent. An act, which in itself is lawful, but which, through misfortune or by chance, becomes a criminal act, affords no ground for the presumption of a criminal intent. But if the act be originally unlawful, the actor is responsible for its consequences, whether or not they are foreseen by him, and from the act, together with its consequences, the law presumes a criminal intent to do the wrong, which act- ually results. Read 4 Bl. Comm., pp. 26, 27. 1 H. P. C, pp. 38-41. 1 Aroh. Cr. Pr., pp. 52-54. 1 Bish. C. L., §§ 313-318, 323-329. § 392. Of Necessity as Affecting Intent. A criminal act, if done from necessity, raises no presump- tion of the criminal intent. This necessity may be either actual or legal. Legal necessity is that which grows out of the obligation to perform some legal dutj', as of a sheriff to execute a death-warrant, or of an officer to capture, even if he kills, an escaping felon. Actual necessity is that which grows out of the circumstances immediately attending the commission of the criminal act, as in all cases of true self- defence. This necessitj' must be real and not imaginary, must not have resulted from the fault of the actor, and must be of such a character as leaves no alternative but the commission of the criminal act. Read 4 Bl! Comm., pp. 28, 80, 31, 184-187. Broom Comm., pp. 880, 881. 1 H. P. C, pp. 52-58. 1 Whart. C. L., §§ 90c, 90d. 1 Bish. C. L., §§ 346-355. ELEMENTS OE CEIME. 247 § 393. Of Compulsion as Affecting Intent. From a criminal act, wlien done under compulsion, the law does not presume a criminal intent. In all such cases, the actor is but the innocent agent of another, who is him- self the criminal. Compulsion, like necessity, may be act- ual or legal. Actual compulsion is the illegal exercise of force, by some third party, compelling the commission of the act. Legal compulsion is that which a husband is pre- sumed by law to exercise over his wife, when, in his presence and by his command, she commits any criminal act less than an act of treason, robbery, or murder. Read 4 Bl. Comm., pp. 27-31. Broom Comm., pp. 890, 891. 1 H. P. C, pp. 43-52. IKuss. Cr., pp. 17-24. 1 Arch. Cr. Pr., pp. 43-47, 56, 57. 1 Whart. C. L., §§ 67-81, 90 a, 90 b. 1 Bish. C. L., §§ 846-366. 1 B. & H. L. C. C, pp. 81-94; 3 Greenleaf Ev., §§ 7-9. 248 ELEMENTARY LAW. CHAPTER n. OP TECE DEGREES OP CEIME. § 394. Of Treason. The classes, or degrees, of crime are three : Treason ; Felony ; and Misdemeanor. Treason is not only a sep- arate class of crime ; it is the only crime of its class. It is also the worst of crimes ; for it is directed, not at the person or property of the su'bject, or even at the public peace and order, but at the very existence of the state and of society. Kead i Bl. Comm., pp. 74, 75. Broom Comm., p. 892. 1 Kuss. Cr., p. 44. 1 Whart. C. L., § 1. 1 Bish. C. L., §§ 598-613. § 39S. Of Felony. Felons/ embraces all the crimes, whose prosecution and punishment are governed by those rules, which, under the ancient common law, controlled the prosecution and punish- ment of such offences as worked a forfeiture of the crimi- nal's estate. Under the ancient law, a person who was convicted of certain crimes, called felonies, forfeited his estate ; and this forfeiture was esteemed a punishment of such severity, that the law exercised great caution in the trial of such cases, and gave to the accused the benefit of many nice distinctions and technicalities, which, in other DEGREES OF CRIME. 249 cases, he did not need, or of which, on account of the enor- mity of the offence, he was deprived. Thus there grew up a peculiar procedure, in the prosecution and punish- ment of this class of crimes ; and though forfeiture, as then inflicted, has ceased to be a penalty for crime, that procedure still continues, and has become the character- istic by which felony is distinguished from treason on the one hand, and misdemeanor on the other. Kead 4 Bl. Comm., pp. 94-98. Broom Comm. , p. 893. 1 Bnss. Cr., p. 44. 1 Arch. Cr. Pr., pp. 1,2. 1 Whart. C. L., § 2. 1 Bish. C. L., §§ 614-619. § 396. Of Common Iiovr and Statute Felonies. Felonies are of two kinds : Felonies at common law, and Felonies by statute. Felonies at common law were formerly very numerous, nearly every important offence having been, at one time or another, proceeded against and punished as a felony. In modern times, this number has been much re- duced, and there are now but seven crimes, which are gen- erally regarded as felonies at common law. These are : (1) Murder ; (2) Manslaughter ; (3) Rape ; (4) Arson ; (5) Burg- lary ; (6) Theft ; and (7) Robbery. Felonies by statute are those crimes, not otherwise made felonies, which are de- clared by statute to be felonies. Thej' differ from common law felonies only in their origin, their mode of prosecu- tion and punishment being the same. Bead 1 Buss. Cr., pp. 44, 45. 1 Arch. Cr. Pr., pp. 1, 2. 1 Whart. C. L., §§ 2, 10. 1 Bish. C. L., §§ 618-622. 250 ELEMENTARY LAW. § 397. Of Misdemeanors. Misdemeanor includes all crimes ■wHch are neither trea- son nor felony. These are very numerous, and of great variety, both as to the character of the criminal act, and as to the enormity of the moral guilt involved in its commis- sion. Many of these crimes have no distinctive name, and are no otherwise defined than by the language of the stat- ute, by which they are prohibited. Kead Broom Comm., pp. 893, 894. 1 Russ. Cr., p. 45. 1 Arch. Cr. Pr., pp. 2-6. 1 Whart. C. L.,§§3-9. 1 Bish. C. L., §§ 623-625. TREASON. 251 CHAPTER in. OP TREASON. § 398. Of the Nature of Treason. Treason is ian act committed by the subject, in violation of the allegiance which binds him to the state. It is dis- tinguished from all other crimes by this ; that, whereas they attack primarily the property or person of an individual, or some single public interest, and indirectly, if at all, affect the state, treason assails the state itself, and seeks to overtlirow and destroy that political society', which his allegiance obliges the subject to defend. Hence its name treason, denoting treachery and breach of faith, or that more expressive phrase, which characterized it in the Roman law, crimen lessee majestatis, the crime of violated sovereigntj'. Read 4 Bl. Comm., p. 75. Broom Comm., pp. 892; 898. 1 H. P. C, pp. 58, 59. 2 Arch. Cr. Pi-., pp. 882-884. 1 Bish. C. L., § 456. 2Bish. C. L., §§1202-1204. § 399. Of Ancient Common Lavr Treasons. Treason, under the ancient English law, necessarily em- braced a great variety of offences, and to these, from time to time, were added, by forced judicial constructions, many actions which never before were suspected to be treason- able. In the statute 25 Edw. IH, c. 2. (A. D. 1350-1), 252 ELEMENTARY LAW. these acts of treason were reduced to seven : (1) To com- pass or imagine the death of the King, or Queen, or their eldest son or heir ; (2) To violate the King's consort, or his eldest daughter unmarried, or the wife of his eldest son or heir ; (3) To levy war against the King within the realm ; (4) To adhere to the King's enemies within the realm, and give them aid and comfort ; (5) To counterfeit the King's great or privy seal; (6) To counterfeit the King's money, or to bring false money into the kingdom ; (7) To kill the chancellor, treasurer or a judge, while in the discharge of his office. Afterwards, however, in the reign of Henry VIII, the spirit of inventing new and strange treasons was revived, and this crime was held to embrace such acts as calling the King names in a public writing, marrying his nephew or niece without his permis- sion, or impugning his supremacy. By the statute 1 Mary c. 1, these so-called treasons were again abrogated, and the statute of Edw. Ill was reaffirmed. But in the succeed- ing reigns, the number was once more increased, and, even until the j'ear A. D. 1847-8, included " the intending, within the realm or without, of any restraint of the heirs or successors of the King, and expressing such intention by any published writing, or by any overt act or deed." Eead 4 Bl. Comm., pp. 75-93. Broom Comm., pp. 900-902. 1 H. P. C, pp. 77-239. 2 Chitty C. L., pp. 60-63. 2Bish. C. L., §§ 1205-1213. § 400. Of Treason against the United States. Levy- ing 'War. Treason, in this country, may be committed either against the United States, or against an individual State. Treason can be committed against the United States only by levy- TREASON. 253 ing war against them, or by adhering to their enemies, giving them aid and comfort. Levying war consists in the actual assembling of a body of men, in order to effect, by force, a treasonable purpose. The number of persons as- sembled is not material ; a few may complete the offence as well as a thousand. Nor need actual fighting be proved ; the assembling with a treasonable purpose being sufficient. A treasonable purpose is a purpose to attain, by force or by intimidation, some object of a public nature, as to overthrow the government, or to nullify some law of the United States, and totally to hinder its execution, or compel its repeal. If war be thus actually levied, all persons, who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are guilty of treason. Bead 4 Bl. Comm., pp. 81, 82. IH. P. C.,pp. 130-154. 2 Arch. Cr. Pr., pp. 889-892. 2 Whart. C. L., §§ 2718-2729. IBish. C. L.,§§177,456. 2Bish. C. L., §§1214-1229. 3 Greenleaf Ev., §§ 237, 242, 243. § 401. Of Treason against the United States. Adher- ing to the Public Enemy. Adhering to the enemies of the United States, giving them aid and comfort, embraces every act which renders any assistance whatever to the public enemy, unless such act is performed unwillingly, and through a well-grounded fear of immediate death in case of refusal. Such acts are : the uniting with public enemies in acts of hostility against the United States or its allies ; the delivering up of its castles, forts or ships of war, to its enemies thi'ough treachery ; joining the enemy's forces, though no acts of hostility be 254 ELEMENTAKY LAW. committed by them ; raising troops for the enemj'-, or sup- plying them with money, arms or intelligence, even though such supplies be intercepted and never reach them. 7%« enemies. of the United States are the subjects of a foreign state, with whom the United States is at open war, and for- eign pirates or robbers, acting under the authority of no particular state, but who actually invade the United States. Adherence and assistance to rebels, in arms against the United States, is "levying war," not "adhering to the public enemy." Eead 4 BI. Comm., pp. 82, 83. 1 H. P. C, pp. 159-170. 2 Arch. Cr. Pr., pp. 892, 893. 2 Whart. C. L., §§ 2730-2733. 2 Bish. C. L., § 123i. 3Greenleaf Ev., § 244. § 402. Of Treason against an Individual State. Treason against an individual State, in the absence of Constitutional or statutory provisions, is an offence at com- mon law, and is so recognized in the Constitution of the United States. Like treason against the United States, it consists only in levying war against the State, or in ad- hering to the public enemy. When the same act is trea- sonable both toward the United States and the individual State; it has been held to be treason against the United States alone. Read 2 Arch. Cr. Pr., pp. 893-896. 2 Whart. C. L., §§ 2766-2772. 2 Bish. C. L.,§1254. § 403. Of the Necessity of an Overt Act. Treasen can be committed only by the doing of an overt act. Thus a conspiracy to levy war, or the actual enlist- TREASON. 255 ment, for that purpose, of men who are never assembled, or words, spoken or written but not published, are not of them- selves ti-easonable acts, though they become so if done in execution of a common purpose, which finds expression in an overt act of treason, or if they are committed in the attempt to aid the public enemy. Read 4 Bl. Comm., pp. 79, 80. Broom Comm., pp. 903, 904. 2 Chitty C. L., pp. 63-67. 2 Arch. Cr. Pr., pp. 8S8, 889. 2 Bish. C. L., §§ 1230-1233. 3 Greenleaf Ev., §§ 240, 241. § 404. Of Alienage as Affecting Treason. As treason is the breach of allegiance, so there can be no treason where there is no allegiance. Under the English law a resident alien, owing a local allegiance to the state, could be guilty of this crime. It has been contended, how- ever, in this country, that only a citizen can commit a treasonable act. Read 4 Bl. Comm., p. 74. Broom Co,mm., pp. 898, 899. 2 Whart. C. L., § 2735. 2Bish. C. L.,§1235. 3 Greenleaf Ev., § 239. Shanks e. Dupont, 3 Pet., p. 261. U. S. V. Villato, 2 Dal., p. 370. § 405. Of Misprision of Treason. Misprision of treason is the wilful concealment of a known treason, by a person who neither assents to nor takes part in the same. This crime is committed as well by neglect- 256 ELEMENTARY LAW. ing to give information of a treasonable act about to be performed, as by concealing the actor or the act, after it has been done. Kead 4 Bl. Comm., p. 120. IH. P. C, pp. 371-375. 2 Arch. Cr. Pr., p. 884. 1 Bish. C. L., § 226, 717-722. FELONIES AGAINST- PEKSONS OF INDIVIDUALS. 267 CHAPTER IV. OF FELONIES AGAINST l-HE PERSONS OF INDrVTDUALS. § 406. Of Murder. The Person Killing. Felonies, at commoii law, against the persons of indi- viduals are three : Murder ; Manslaughter ; and Rape. Murder is the unlawful killing of another with malice afore- thought. An ancient definition, and the one commonly taken as the basis of treatises upon this crime, describes it as " where a person, of sound memory and discretion, unlawfully kills a reasonable creature, in being and in the peace, with malice aforethought either express or implied." This definition presents five topics for discussion : (1) The person killing ; (2) The person killed ; (3) The act of kill- ing ; (4) The unlawfulness of the killing ; and (6) The malice aforethought. The person hilling must be a person of sound memory and discretion. This is a simple repetition of the rule, applicable to all crime, that the criminal actor must be of sane mind, over seven j-ears of age, and if under four- teen, proved to be capable of criminal intent. Read 4 Bl. Comm., p. 195. 1 H. P. C, p. 434. 3 Chitty C. L., pp. 723-725. 1 Russ. Cr., pp. 484, 485. 1 Arch. Cr. Pr., pp. 831, 832. 2 Whart. C. L., § 930. 3 Greenleaf Ev., § 130. § 407. Of Murder. The Person Killed. The person hilled must be a reasonable crea,ture, in, being and in the peace. A reasonable creature is a human being, 17 258 ELEMENTARY LAW. as distinguished from an irrational animal, and from those abnormal products of the human species which are known as monsters. Such reasonable creature is in being when alive and full born. An infant, in the womb of its mother, is not a subject of murder, nor is it when delivered, unless its connection with the mother is so far severed, that its own independent life has actual!}' begun. But if an infant, before birth, receive an injury, from which, after being fully born alive, it dies, its death is that of a creature in being, and the act which produces it, if the other elements of the crime be present, will be murder. A reasonable creature is in the peace whenever he is not a rebel, or a public enemy engaged in actual battle. Read 4 Bl. Coram., p. 198. 3 Chitty C. L., p. 727. 1 Russ. Cr., pp. 485-487. 1 Arch. Cr. Pr., pp. 835-844. 2 AVhart. C. L., §§ 940, 942, 943. 2 Bish. C. L., §§ 630-634. § 408. Of Murder. The Act of Killing. The act of hilling must be an act producing corporal in- jury, and must result in death within a year and a day from the date of its commission. Mere threats, or other representations, either by word or act, which operate only upon the mind, and, through the terror or anxiety which they engender, cause disease and death without the intervention of any physical injurj', are not such killing as is necessary to constitute murder. But if a person, through such terror or anxiet}', sustains an immediate physical injury, either as the result of his own desperate act or through an accident occasioned by his disturbed state of mind, the person, by whose threats or representa- tions such terror or anxiety is caused, is guilty of a killing. FELONIES AGAINST PERSONS OF INDIVIDUALS. 259 Although a killhig thus implies a phj-sical injurj-, it is not necessary that it be occasioned b^' any personal violence, on the part of the actor. To leave poison where it is likely to be taken, to permit ferocious animals to go at large, to ride a kicking horse among a crowd of people, to leave a child or sick person exposed to danger fiom the want of proper care or food, or to do anj- other act calculated to endanger life or to produce serious bodilj- harm, is killing, if death actually result therefrom. Death is conclusively presumed b}' law to have been produced b3' natural causes, unless it occurs within a year and a day from the infliction of the injurj'. In the computation of this period, the day, on which the injury was committed, is reckoned as the first. Eead 4 Bl. Comm., pp. 196, 197. 1 II. P. C, pp. 424-432. 3 Chitty C. L., pp. 725, 726. 1 Russ. Cr., pp. 488-509. 1 Arch. Cr. Pr., pp. 7ol-762, 832-835. 2 Whait. C. L., §§ 941, 941 a. 2 Bish. C. L., §§ 633-641. 3 Greenleaf Ev., §§ 134-142. § 409. Of Murder. Justifiable and Excusable Killing. The act of killing is unlawful in every case, where it is not expressly justified or excused by law. The law justi- Jies the killing of another in the following cases : (1) In self-defence, that is, where a felony, attended with force or great atrocitj', is actually attempted against the person, habitation, or property of a man, or of some one whom he is under legal obligation to defend, and no other means of preventing such felony being at hand, he kills the felon ; (2) Where an officer takes life in pursuance of a legal war- rant of execution commanding him so to do ; (3) "Where a 260 ' ^ f ELEMENTARY LAW. felony has actually been eommitted, and tlie felon cannot be arrested, hy the officer or private person in pursuit, ex- cept b^-^ killing him ; (4) Where an officer is commanded by a warrant to arrest a certain person as a felon, and necessarily kills him in effecting such arrest. The law excuses the killing of another: (1) Where a man doing a lawful act, with reasonable care and without intention of bodily harm to any one, accidentally or by chance causes the death of another ; (2) Where a man, who is without fault himself, being assaulted by another under such cir- cumstances as to induce in his mind a reasonable belief that the assailant intends to take his life or do him serious bodily harm, and that this intention is likelj' to be accom- plished, flees as far as he can, and seeing no other way of escape, kills his assailant. Read 4 Bl. Comm., pp. 178-188. Broom Coram., pp. 931, 932. IH. P. C, pp. 418,478-502. 1 Russ. Cr., pp. 656-670. 1 Arch. Cr. Pr., pp. 763-805. ' 2 Whart. C. L., §§ 93i-938, 1019-1042. IBish. C.L.,§§ 836-877. 2 Bish. C. L., §§ 619-622, 642-655. 3 Greenleaf Ev., §§ 115-118. § 410. Of Murder. Malice Express or ImpUed. De- grees. Malice, in murder, is the intention to kill unlawfully ; and if it exists for any period, however brief, before the kiUing and at the instant thereof, it is malice aforethought. Malice may be either express or implied. Malice is ex- press when the act of killing is the result of a deliberate and premeditated design, evidenced bj' such external cir- cumstances as lying in wait, antecedent menaces, or con- certed schemes to do the person slain some bodily harmv FELONIES AGAINST PERSONS OF INDIVIDUALS. 261 ■Malice- is implied whenever the act producing death is of peculiar crueltj' or wantonness, or is without provocation, or is, in itself, either a felonj' or calculated to do serious bodily harm, or consists in the use of dangerous weapons or poisons, or is committed under circumstances denoting a depraved inclination to mischief. But malice does not necessarily include hatred or ill-will toward the person killed, nor is it necessary that the death produced should be the death primarily intended by the shyer. An atr tempt to kill one person, resulting in the actual death of another, implies malice toward that other, and a wanton act, endangering the lives of persons in general, involves malice toward all those who are killed therebj-. In many of the States, the crime of murder is divided into diflferent degrees, which are distinguished from each other bj' the malice that accompanies the act. Murder in the first degree is generally murder with express malice, or from premeditated design ; murder in the second degree either embracing all other murder, or such other as is character- ized by the grosser forms of implied malice. Read 4 Bl. Gomm., pp. 198-201. Broom Comm., pp. 918-920. HI. P. C, pp. 451-466. 3 Chitty C. L., pp. 727-730. 1 Russ. Cr., pp, 482-484, 532-538. 1 Arch. Cr. Pr., pp. 751-755, 844-877, 896-898. 2 Whart. C. L., §§ 944-968, 997, 1075-1114. 2 Bish. C. L., §§ 675-696, 723-729. 2 Bish. C. P., §§ 566-587. 3 Greenleaf Ev., §§ 144-148. § 411. Of the Presumption of Malice from the Unlaw- ful Killing. In all cases of homicide the law presumes the act to he mur- der, and throws upon the actor the burden of showing, if 262 ELEMENTARY LAW. he can, tliat be acted lawfully, or without malice. The presumption of unlawfulness maj- be rebuUed by proving either of the states of fact, already mentioned as rendering the act of killing justifiable or excusable. The presump- tion of malice ma}' be rebutted by showing that the killing was lawful, or that the actor was Incapable of criminal intent, or that he acted under compulsion or mistake of fact, or that he acted in hot blood and without i:)revious intent to kill. Kead 4 Bl. Comm., p. 201. Broom Comm., pp. 920, 921. SCliittyC. L.,p. 730. 1 Russ. Ci-., p. 483. 1 Aicli. Cr. Pr.,p. 851. 2 Whart. C. L., § 944. 2 Dish. C. L., § 693. 1 B. & H. L. C. C, pp. 322-362. § 412. Of Manslaughter. Manslaughter is the unlawful killing of another, with- out malice aforethought. Manslaughter includes every unlawful killing which is not murder. The distinction between these two crimes is onl}' in regard to malice aforethought^ which in murder is always present, and in manslaughter is alwaj-s absent ; and the same rules which govern one, in reference to the person killing, the person killed, the act of killing, and the unlawfulness of the act, govern the other also. Kead 4 Bl. Comm., pp. 191, 201. Broom Comm., pp. 917, 018. 1 Russ. Cr., p. 579. 1 Arch. Cr. Pr., pp. 806, 807. 2 Whart. C. L., § 931. 2 Bish. C. L., §§ 623-623, 672-678, .720. 3 Greenleaf Ev., § 119. FELONIES AGAINST PEKSONS OF INDIVIDUALS. 263 § 413. Of Voluntary Manslaughter. Manslaughter is either voluntary or involuntary. Vol- untary manslaughter is an unlawful killing, upon immediate provocation or iu a sudden combat. No provocation will justify or excuse a homicide. If the provocation be slight, as by words or gestures, or by a mere trespass upon property, the killing will be murder, unless the cir- cumstances, which attend it, denote that there was no intention to do serious bodily harm, in which case the kill- iug will be manslaughter. Where the provocation is great, (as if the slayer find the person slain in adulterous con- nection with his wife,) and, in the heat of blood engendered by such provocation, the killing is committed, it is man- slaughter. But whatever be the provocation, if it be sought by the slayer, the kilHng will be murder. Eead4 Bl. Coram., pp. 191, 200, 201. Broom Comm., pp. 921-924. 1 Russ. Cr., pp. 513-527, 580-585. 1 Arch. Cr. Pr., pp. 807-820. 2 Whart. C. L., §§ 931, 932, 969-986. 2 Bish. C. L.,§§ 697-713. 3 Greenleaf Ev., §§ 121-127. § 414. Of Killing in Actual Combat. Where, upon any provocation, actual combat ensues, and in such combat, and before the passions ha\-e had time to cool, one of the combatants, without previous ill-will and without any act of treachery, kills the other, it is man- slaughter. But if, from the outset, the acts or words of the slayer indicate an intent to kill the other, or if he takes the person slain at an unfair advantage, it is murder. Kead 4 Bl. Comm., pp. 191, 192. SChittyC. L.,pp. 730-732. 1 Russ. Cr., pp. 527-532, 585-592. 1 Arch. Cr. Pr., pp. 820-829. 2 Whart. C. L., §§ 053, 955, 987-996. 264 ELEMENTARY LAW. § 415. Of Involuntary Manslaughter. Involuntary manslavghter is an unlawful killing, ■which results from the careless doing of some lawful act, or from the doing of some unlawful act, which is less than felonj', and is not calculated to produce serious bodily harm. The doing of a lawful act with gross and wanton careless- ness, and thereby causing death, is murder. The doing of such act with carelessness not wanton or malicious, with the same result, is manslaughter. When death results from a mere misdemeanor or from a trespass, and the act done was not, in its own nature, or from the operation of surrounding circumstances, likely to result in death or serious injury, it is manslaughter. But death produced by even a misdemeanor, which of its own nature is dan- gerous to life, is murder. Kead 4 Bl. Comm., pp. 192-194. Broom Comm., pp. 925-930. 1 H. P. C, pp. 471-477. 1 Russ. Cr., pp. 538-548, 592-654. 2 Whart. C. L., §§ 933, 097-1018. 1 Bish. C. L., §§ 313, 314. IB. &H. L. C. C.,pp. 50-71. 3 Greenleaf Ev., §§ 128, 129. § 416. Of Rape. The Carnal Knowledge. Eape is the unlawful carnal knowledge of a woman, without her consent. In discussing this crime, three things are to be considered: (1) The carnal knowledge ; (2) Its unlawfulness ; (3) The absence of consent. To constitute carnal knowledge, penetration is absolutely neces- sary. There must be res in re ; that is the sexual organ of the male must be entered, to some extent, within the sexual organs of the female. But the distance and dura- FELONIES AGAINST PERSONS OF INDIVIDUALS. 266 tion of , such penetration is not material, neither is seminal emission necessary to complete the crime. Read 4 Bl. Coram., p. 210. 1 H. P. C, p. 628. SChitty C. L., p. 810. IRu'ss. Cr., pp. 678-686. 2 Avch. Cr. Pr., pp. 152-158, 162-166. 2 Whart. C. L., §§ 1137-1140. 2 Bish. C. L., §§ 1107-1115, 1127-1132. 3 Greenleaf Ev., §§ 209, 210. § 417. Of Rape. The XTnlawfijl Carnal Knowledge. Carnal knowledge is alwaj-s lawful, when it takes place between a man and Ms lawful wife. In all other cases, it is unlawful, whether the woman consents or not, though not, in all such cases, punishable as a crime. Read 2 Arch. Cr. Pr., p. 158. 2 Whart. C. L., § 1136. § 418. Of Rape. The "Want of Consent. Force. All unlawful carnal knowledge is rape, unless the woman gives her intelligent and voluntary consent there- unto. If she yields to persuasion, or if her consent be elicited by fraud, it is no rape. But if she openly re- fuses, or if her acquiescence be merely passive, as if she be stupefied with drink or be insane, or if her resistance be prevented by fear of death or by ignorance of the nature of the act, it is rape. A female under the age of ten years cannot, in law, consent to sexual intercourse, and carnal knowledge of such a female is, therefore, alwaj's rape. A male under the age of fourteen years is presumed by law to be incapable of the sexual act, and proof of the 266 ELEMENTARY LAW. contrary will not be permitted. Such a person, conse- quently', cannot commit rape. Eead 4 Bl. Comm., p. 212. 1 H. P. C, pp. 629-631. 3 Chitty C. L., pp. 810, 811. 1 Russ. Cr., pp. 676-678, 693-697. 2 Arch. Cr. Pr., pp. 166-168. 2 Whait. C. L., §§ 1141-1148. 2Bish. C. L.,§§ 1116-1126. 2 B. & H. L. C. C.,pp. 254-260. 8 Greenleaf Ev.,§211. § 419. Of Rape. The Evidence of the Complainant. The -woman ravished is a competent, though not always a credible, witness against the accused, in prosecutions for this crime. If she be of good repute, if she presently discovered the offence and made pursuit of the offender, if she showed signs and marks of the injury, if the place where she alleges the act to have been done were remote from observation, and if the offender fled for it, her testi- mony is of great weight, and ma}' alone be sufficient for conviction. But if she be of bad repute, or if she con- cealed the injury after she had opportunitj- to complain, or if the place where she alleges it to have been committed were public and inhabited, and she made no outcry ; these, and similar circumstances, cast grave doubts upon her storj'. For though rape is a heinous crime, and, when actuall}' committed, merits severe punishment, 3-et accusa- tions of it are always to be regarded with suspicion, being often, if not generallj-, made either under sexual hallucina- tion, or for purposes of extortion or revenge. Read 4 Bl. Comm., pp. 213-215. 1 II. P. C, pp. 632-636. 8 Chitty G. L., pp. 812, 813. 1 Russ. Cr., pp. 688-691, 694, 695. 2 Arch. Cr. Pr., pp. 169-175. 2 Whart. C. L., §§ 1149-1152. FELONIES AGAINST PEOPEETY OF INDIVIDUALS. 267 CHAPTER V. OP FELONIES AGAINST THE PEOPERTY OF INDITIDCALS. § 420. Of Arson. The Burning. Felonies, at common law, against the property of indi- viduals, are four : Arson ; Burglary ; Theft ; and Robbery. Arson is the unlawful burning of the house of another. This crime presents four points for discussion : (1) The burning ; (2) Its unlawfulness ; (3) The house ; and (4) Its ownership. To constitute a burninff, either the whole house, or some integral part thereof, must be actually destroyed by fire. If it be merely blackened by smoke, or scorched by flame, without destruction of its substance, or if that which is burned be personal property onlj^, however wilful and malicious such burning may be, it is not arson. But the destruction by fire of any part of the house, whether great or small, is a burning ; nor does it matter though the fire endures but a moment, or even goes out of itself. Read i Bl. Comm., pp. 220, 222. 3 Chitty C. L., p. 1104. 2 Russ. Cr., pp. 548, .549. 2 Arch. Cr. Pr., pp. 709, 712-714. 2 Wliart. C. L., §§ 1658-1C62. 2 Bish. C. L., §§ 8, 10. 3 Greeuleaf Ev., § 55. § 421. Of Arson. The TTnla'wfuI Burning. Every burning, which is wilful and is not in pursuance of some public duty, is unlawful. An involuntary bwning, by negligence or accident, is not a crime ; nor is a wilful 268 ELEMENTARY LAW. burning criminal, when done hy competent authority in order to impede a conflagration, stay a pestilence, or subserve some necessity of war. But a burning, which is wilful and without authority, will be unlawful, although the actor may not have intended to destroj' the house by fire. A felon who, in the perpetration of his felony, emplo3's means cal- culated to set fire to a house, or one who burns his own house, under circumstances which render it apparent that adjacent houses "will also be burned, will, if such house or houses actually be consumed, be guilty of arson. Eead 4 Bl. Coram., p. 222. S^Chitty C. L., pp. 1104, 1105. 2 Russ. Cr., pp. 549, 550. 2 Arch. Cr. Pr., pp. 723-727. 2 Whart. C. L., §§ 1G63-1G65. 2Bish. C. L., §§ 14-16. 3 Greenleaf Ev., §§ 53, 56. § 422. Of Arson. The fiouse. A house is a building used for human habitation. If it were erected for that purpose but never j-et occupied, or if, having been so occupied, it is now abandoned, it is not a house, in the sense in which that word is used in defining arson and burglarj'. But the temporary absence of its occu- pants does not take away its character as a dwelling. A house includes not only the building actuall}^ occupied as an abode, but all other buildings which immediately commu- nicate therewith, or are in the same curtilage or common fence, or are within a reasonable distance from the dwell- ing, and, iu their use, are subservient thereunto. Eead 4 Bl. Coram., pp. 221. 3 Chitty C. L., pp. 1105, 1106. 2 Russ. Cr., p. 5.52. 2 Arch. Cr. Pr., pp. 714-720. 2 Whart. C. L., §§ 1667-1670. 3 Greeilleaf Ev., §52. FELONIES AGAINST PROPERTY OE INDIVIDUALS. 269 § 423. Of Arson. The Ownership of the House. The ownership of a house, as regards this crime, is in him who has the legal right of occupation. A man cannot commit arson by burning a house in winch he has a right to abide, whether he be the owner in fee, or a mere tenant for years or at will. But a servant or other person, tem- porarily residing in a house but not having the legal pos- session thereof, has no such ownership, neither has the owner of the fee as long as the actual right of occupation is in another. Read 4 Bl. Coram., p. 221. 3 Chitty C. L., pp. 1106, 1107. 2 Russ. Ci-., pp. 550, 551. 2 Aich. Cr. Pr., pp. 720-723. 2 Whavt. C. L., §§ 1671, 1672, 1675-1677. 2Bish. C. L.,§§12, 13. 2 Bish. C. P., §§ 36-38. 3 Greenleaf Ev., §§ 54, 57. § 424. Of Burglary. The Breaking. Burglary is the breaking and entering, in the night season, of the dwelling-house of another, with the intent to commit a felony therein. Six points are here to be con- sidered : (1) The breaking ; (2) The entering ; (3) The night season ; (4) The dwelling-house ; (5) Its ownership ; and (6) The felonious intent. Breaking is the removal of any portion of the house, which is relied upon as a secu- rity against intrusion, and which, as much as the nature of the case admits, actually serves as such securitj'. Thus the opening of a door or window, or the removal of a screen or netting, is a breaking. Where, as in the case of a chimney, an aperture cannot be closed by any substance capable of being removed, an entrance through the aper- ture involves a breaking. But breaking does not neces- 270 ELEMENTARY LAW. sarily imply force. The mere lifting of a latch or of a window, the procuring of a door to be opened by craft, or by intimidation or by conspiracy, is breaking. To raise a window that is already partly open, to push back a door that already stands ajar, to walk or climb into an aperture already made, is, however, not a breaking. Breaking may be either for purposes of egress or ingress ; for one who enters without breaking, in the night season, with felonious intent, completes his crime if, also in the night season, he breaks in order to go out. Breaking may be either of the outer wall of the house, or of those inner walls by which one part is separated from another. Read 4 Bl. Comm., pp. 223, 226, 227. Broom Comm., pp. 977, 979, 980. IH. P.O., pp. 551-555. 3 Chitty C. L., pp. 1093, 1094. lEuss. Cr., pp. 785-794. 2 Arch. Cr. Pr., pp. 263-277. 2 Whart. C. L., §§ 1531-15i8. 2 Bish. C. L., §§ 90, 91, 96-100. 2 B. & H. L. C. C, pp. 43-66. SGreenleaf Ev.,§§76, 77. § 425. Of Burglary. The Entering. Entering consists in the insertion, into the interior of the house, of the whole body of the actor, or of a part thereof, or of something which is either connected with his bod}', or is under his immediate control, and is intended to be used in the commission of the felonj'. The thrusting of the hand, or of a cane or a hook, beyond the line, which severs the inside from the outside, in order to draw out goods, or of a pistol in order to demand the money of the occupant, is as complete an entrj' as if the burglar were within the room. But if tools, which are intended only for the break- FELONIES AGAINST PROPERTY OF INDIVIDUALS. 271 ing and not for the ulterior felonj', fall or are thrust inside, it is no entry. The breaking and the entering must be re- lated to each other, at least by a community of intent ; for if the breaking be at one time for one purpose, and the entry be at another time and for another purpose, it is no burglary. Bead 4 Bl. Comm., pp. 226, 227. Broom Comm. , pp. 979, 980. 1 H. P. C, pp. 555, 556. 3 Chitty C. L., p. 1094. 1 Russ. Cr., pp. 794-797. 2 Arch. Cr. Pr., pp. 278-280. 2 Whart. C. L., §§ 1549-1553. 2 Bish. C. L., §§ 92-95. 3 Greenleaf Ev., § 78. § 426. Of Burglary. The House. The dwelling-house, in burglary as in arson, signifies a building, which has been actually used for human habita- tion, and has not been permanently abandoned by its occu- pant. It embraces all houses and outhouses, within or without the curtilage, which are parcel of, and in their use are subservient to, the building used as an abode. When, under the same roof, there are some apartments used for residence and others occupied for purposes entirely differ- ent, as for stores or workshops, only the portions of the building used for residence are within the dwelling-house. Where different families reside under one roof but in differ- ent portions of the building, the portion of each family being distinct and separated from the rest and with a dif- ferent outward entrance, each portion of the building is by itself a dwelling-house. So suites of rooms in a college, or in an inn of court, have been held to be dwelling-houses, as also rooms or lodgings in a private house, where the 272 ELEMENTARY LAW. actual owner of the house does not dwell under the same roof, or where he and his lodger enter by separate doors. But if there.be but one external entrance, and the owner himself dwells in any part of such building, it constitutes but one dwelling-house. Read 4 BI. Coram., pp. 224-226. Broom Comm., p. 978. 1 H. P. C, pp. 556-559. 3 CHtty C. L., pp. 1090-1092. IKuss. Cr., pp. 797-807. 2 Arch. Cr. Pr., pp. 281-290. 2 Whart. C. L., §§ 1555-1575. 2 Bish. C. L., §§ 104-108. 3 Greenleaf Ev., §§ 79, 80. § 427. Of Burglary. The Ownership of the House. The ownership of a dwelling-house, in burglary as in, arson, consists in the legal right of possession. The per- son who actually occupies a dwelliug-house in his own right, and not as the guest or servant of another, is the owner thereof. Separate dwelling-houses under one roof are owned by those who occupy, as distinguished from the general owner of the whole ; and the same is true of separate lodg- ; ings in a private house, where the general owner does not dwell therein, and where the lodgers have separate modes of entrance. The dwelling-house of a wife, who lives sep- arated from her husband, is in the ownership of the hus- band. Read 4 BI. Comm., pp. 225, 226. 3 Chitty C. L., pp. 1096, 1097. 1 Russ. Cr., pp. 807-820. 2 Arch. Cr. Pr., pp. 291-306. 2 Whart. C. L., §§ 1577-1591. 2 Bish. C. P.,§§ 137-139. 3 Greenleaf Ev., § 81. FELONIES AGAINST PROPERTY OF INDIVIDUALS. 273 § 428. Of Burglary. The Night Season. The night season is that period of the night, which inter- venes between the total disappearance . of daj'light in the evening and its reappearance in the morning. Daylight is said to have disappeared when a man's face can no longer be discerned thereby. The presence or absence of moon- light is immaterial. The breaking and entering need not both be in the same night : if both are committed, in the night season, and in pursuance of the same design, it is sufficient. Read 4 Bl. Comm., p. 224. 1 H. P. C, pp. 550, 551. 3 Chitty C. L., pp. 1092, 1093. 1 Russ. Cr., pp. 820-822. 2 Arch. Cr. Pr., pp. 303-308. 2 Whart. C. L., §§ 1.592-1597. 3 Greenleaf Ev., §§ 75, 83. § 429. Of Burglary. The Felonious Intent. The breaking and entering must be with intent to com- mit some felony within the dwelling-house. Such felony maybe murder, manslaughter, rape, arson, theft, robbery, or any statute-felon}-. This intent is a specific intent, and must be alleged and proved as a part of the criminal act. In the absence of such intent, the breaking and entering are mere trespasses. Read 4 Bl. Comm., pp. 227, 228. Broom Comm., pp. 981, 982. 1 H. P. C, p. 562. 3 Chitty C. L., p. 1095. 1 Russ. Cr., pp. 822-825. 2 Arch. Cr. Pr., pp. 308-312. 2 Whart. C. L., §§ 1598-1606. 2 Bish. C. L., §§ 109-117. 3 Greenleaf Ev., §82. 18 274 ELEMENTARY LAW. § 430. Of Larceny. The Taking and Carrying Away. Theft or Larceny is the taking and carrying away of the personal property of another, with intent to steal the same. Four matters here demand attention : (1) The taking and carrying away ; (2) The property ; (3) Its ownership ; and (4) The intent to steal. Taking is the forcible and wrong- ful prehension or grasping of an object. Carrying away is the wrongful removal of the object taken, from the place where it was when taken. The taking and carrying away, in larceny, are usually considered together under the name of taking^ and, so considered, they consist in the forcible severance of the property, from the possession of the owner, against his will. This severance must he complete, but need be onl}^ for an instant and to the shortest distance possible ; the mere lifting of an article out of its place being a tak- ing. It must also be accomplished by some direct act of the taker, applying force to the object taken, either in the removal or reception thereof. But the degree and kind of force are immaterial ; to lead or entice awaj' a horse, or to accept a chattel which is delivered up through fear, are alike a taking. The severance must be from the posses- sion of the owner. An article, abandoned hj its owner, is not the subject of theft. But if he loses it bj' accident, or places it in the custody of another for a temporary purpose, it is still in his possession. Thus goods in the charge of a servant, as such, are in the possession of his master, and a taking and carrying away of them by the servant, with intent to steal, is theft. A bailment of goods by the owner, however, confers a special property therein upon the bailee, and vests the possession of them in him as against all other persons, including the bailor. A bailee, therefore, cannot steal the property of the bailor, unless by some mis- feasance he first determines the bailment and, after that, takes and carries away the goods. The severance must also be invito domino, or against the owner's will. If the FELONIES AGAINST PEOPEETY OF INDIVIDUALS. 275 owner consents thereto, even though his consent be obtained by fraud, it is no taliing. But such consent must be to the severance of the property from his possession, as dis- tinguished from a consent to the transfer of its temporary custody. For one, who by fraud or by persuasion, procures the owner to deliver to him an article, the owner not intend- ing thereby to transfer the possession thereof, is guilty of a taking, if, after receiving it into his custody, he detains it against the owner's will. Read 4 Bl. Comm., pp. 229-231. Broom Comm. , pp. 9i5, 949-953. 1 H. P. C, pp. 504-508. 3 Chitty C. L., pp. 917-920, 935-938. 2 Russ. Cr. Pr., pp. 2, 5-7, 19-62, 153-165. 2 Ai-ch. Cr. Pr., pp. 375, 885-388, 404-428, 431- 459. 2 Whart. C. L., §§ 1802-1817, 1840-1868. 2 Bish. C. L., §§ 758, 794-839, 853-883. 2 B. & H. L. C. C, pp. 181-204, 358-370. 3 Greenleaf Ev., §§ 150, 154-156, 161, 162. § 431. O'f Larceny. The Property. Tlie property taken must be personal property. Beal property, and things permanently annexed thereto, are not subjects of theft. If portions of the realty are severed from the mass thereof, and are thereby changed into per- sonal property, such act of severance is not a theft, because, in their movable condition, these objects never were in the possession of their owner. But if this severance takes place at one time, and afterward such objects pass into the pos- session of their owner, a subsequent removal of them, with intent to steal, will be a theft. Thus if a person plucks apples from a tree, or tears a shutter from a house, and car- ries them immediately away, it is a trespass and no theft. 276 ELEMENTARY LAW. But if he laj-s the shutter or the apples on the ground of the owner, for a single instant after such severance, they pass into the possession of the owner in their movable con- dition, and the subsequent taking of them, with felonious intent, will be a theft. The property must not only be personal property, it must also be personal property in possession, as distinguished from such property in action. A chose in action is incapable of being stolen. Its very name implies that it is not in, and therefore cannot be taken out of, the possession of the owner. Bills, notes, bonds, and other instruments, which evidence the existence of such choses, are, however, frequently called choses in action, even by law-writers. Such instruments are not, at common law, subjects of theft, though generally made so by statute. The property taken must also be of some in- trinsic value. Read 4 Bl. Comm., pp. 232-238. Broom Comm., pp. 916, 947. IH. P. C.,pp. 510-512. 3 Chitty C. L., pp. 926-929. 2 Riiss. Cr., pp. 62-86. 2 Arch. Cr. Pr., pp. 376-385. 2 Whai-t. C. L., §§ 1751-1763. 2 Bish. C. L.; §§ 761-787. § 432. Of Larceny. The Ownership of the Property. Ownership, in larceny as in other crimes, consists in the legal right of possession, and must reside in some one other than the taker. Things which can have no owner, as the corpse of a human beings animals of a base nature, or animals /ercs natures and unreclaimed, cannot be stolen. Ownership is not devested either by the accidental loss of the property', or by the tortious and unlawful act of an- other. One person may have a general, and another a special, Ownership in the same chattel. In such cases, the FELONIES AGAINST PROPERTY OF INDIVIDUALS. 277 taking of the property hy the general owner, with intent to steal, will be a theft //-oni the special owner, and the taking of it, with that intent, bj- a third person will be a theft from both owners. JoinC-tenants and tenants in common have no ownership as against each other, nor has a hus- band an}' ownership as against his wife. The ownership of property attached, or held under an execution before sale, is still in the general owner, and propert}- in the pos- session of an agent belongs, as against all third parties, to the principal. Clothing, worn by children, is owned both by them and bj' their parents. Read 4 BI. Comm., pp. 235, 236. Broom Coram., pp. 947, 948. 1 H. P. C, pp. 512-515. 2 Rass. Cr., pp. 86-99. 2 Arch. Cr. Pr., pp. 357-368, 394-396, 431-460. 2 Whart. C. L., §§ 1818-1836. 2 Bish. C. L., §§ 788-793. § 433. Of Larceny The Felonious Intent. The intent to steal is that which distinguishes theft from a mere trespass. This intent is called the animus furandi, and has been said to characterize the taking as a taking lucri causa, or for the sake of gain. The intent to steal embraces two intents: (1) The intent to permanently de- prive the owner of his possession of the property ; and (2) The intent to derive some benefit, actual or imaginarj', to the taker. A taking with intent to return after using is not the intent to steal. Thus, where a servant took his master's goods and pawned them for his own benefit, but with the intention to redeem and restore them, it was held to be no theft. So where a thief, without permission , takes a horse merely to aid him in his flight with other propertj' which he has stolen, and with the intent to abandon the horse and suffer him to return to the owner, it is not a 278 ELEMENTARY LAW. stealing of the horse. The taker must also intend some advantage to himself, but such advantage need not be of a pecuniar}'' character, nor need it be a real advantage as distinguished from an imaginary one. Thus where a woman took and destroj'ed the letter of another, which she feared might injure her character ; where a servant took his master's beans to save himself the trouble of preparing other food for the master's horses ; where a man killed the horse, of another to prevent it from being used as an evi- dence against him ; where one stole a towel to make a pres- ent of it to another ; in all these cases, and in manj' others similar thereto, it has been held that the taking was for the sake of gain, and that a complete intent to steal existed. This doctrine of lucri causa has, however, been the sub- ject of much discussion bj- law-writers ; and the courts, in which it has been considered, are not harmonious in their decisions. The intent to steal must exist at the time of the taking. If the taking be without intent to steal, that is, if the intent to steal is first formed in the mind of the taker after the severance of the object from the possession of the owner, there is no theft. And, on the other hand, if the taking be with the intent to steal, the theft is complete even though afterwards the thief repent and return the propertjr. The intent to steal is a specific intent, and must be alleged and proved like any other part of the criminal act. Head i Bl. Comm., p. 232. Broom Comm., pp. 953-960. 1 H. P. C, pp. 508, 509. 3 Chitty C. L., pp. 920-924. 2Russ. Cr.,pp. 7-19. 2 Arch. Cr. Pr., pp. 389-394. 2 Whart. C. L., §§ 1769-1801. 2 Bi.sh. C. L., §§ 840-852. 2 B. & II. L. C. C, pp. 409-432. 3 Greenleaf Ev., §§ 157-lGO. FELONIES AGAINST PROPERTY OF INDIVIDUALS. 279 § 434. Of Robbery. The Element of Larceny. Robbery is the theft of property from the person, or in the presence, of the owner, accomplished by violence, or by putting him in fear. Three things are here to be regarded : (1) The theft ; (2) The person or presence of the owner ; and (3) The violence, or putting him in fear. The thefts in robbery, consists of the same elements, and is governed by the same rules, as when perpetrated out of the presence of the owner, and without violence or putting him in fear. There must be a taking and carrying away, from the pos- session of the owner and against his will, of personal prop- erty, with the intent to steal. Bead 4 Bl. Comm., p. 2-42. 1 H. P. C, pp. 532, 533. SChitty C. L.,p. 802. 1 Russ. Cr., pp. 867, 869-873. 2 Arch. Cr. Pr., p. 524.. 2 Whart. C. L., §§ 1695, 1697. 2Bish. C. L., §§1156-1165. 3 Greenleaf Ev., §§ 223-227. § 435. Of Robbery. The Person or Presence of the Owner. In robberj', however, the property must be taken from the person, or in the presence of, the owner. How far the limits of this presence extend is not easily determined. It includes all property which is in the sight of the owner, and under his immediate and personal care and protection. It is also held that projperty, however near to him, if not actu- ally in his sight or under his control, is not in his presence. Thus where a master's goods were stolen by violence from his ser\'ant in the master's presence ; where a traveller was assaulted bj- a thief, who then took away his horse stand- ing by him ; and where a person under fear threw his purse 280 ELEMENTARY LAW. by the wa^'side, and his assailant, immediately and in his sight, picked it up ; in all these cases, the act was adjudged to be a taking from the presence of the owner. And, on the other hand, where thieves struck money from the owner's hand and it fell upon the ground, whence the^' immediately took it up, it not appearing that he saw them do so, or that the money remained within his control, it was held to be no robberj-. Kead 4 Bl. Comm., p. 242. IH. P. Cpp. 532-5.34. SChitty C. L.,pp. 802,803. 1 Russ. Cr., pp. 873, 874. 2 Avch. Ci-. Pr.,pp. 503-508, 528-532. 2 Whait. C. L., §§ 169G, 1701. 2 Bish. C. L., §§ 1177, 1178. 3 Greenleaf Ev., § 228. § 436. Of Robbery. The Violence or Putting in Fear. The property' must be taken either h/ violence or by put- ting in fear. "When the taking is by violence, the violence must be some other exercise of physical force than that which is necessarily involved in the act of taking. It con- sists in an attach upon the person of the owner, in distinction from the mere attack upon his property. Thus where an object is snatched from the hand of the owner, or is stealth- ily extracted from his pocket, there is no robberj'. But if it be attached by a chain to his neck, so that the taking of it applies force to his person, or if there be a struggle for its possession before the taking, there is suflflcient violence to make the theft a robbery. The violence, as well as put- ting in fear, must, however, either precede or accompany the taking; for a personal injury, committed after a taking without violence, does not alter the original character of the theft. To put in fear is to excite, in the mind of the FELONIES AGAINST PEOPEKTY OF INDIVIDUALS. 281 owner, a reasonable apprehension that phj-sical injiirj- will be inflicted upon him, or that he will be prosecuted for the crime of sodomj'. This fear maj- be excited bj- threats, or bj' acts which manifest the intent to commit violence. The propertj^ must be parted with bj- the owner, while he is under the influence of such fear, but it need not be at tlie same time that the threats were made against him. Tlius where a thief compelled a man to swear that he would bring a sum of money to him at a certain place, and threat- ened him with death if he failed to do so, the delivery of the monej- at a subsequent time under such fear, and its ac- ceptance bj' the thief, was held to be a robberj-. So where, under fear of a prosecution for sodomy, a man prom- ised to pay money, and afterwards, under the influence of the same fear, actually paid it, the talking of the money was considered robbery. It has been also decided that the threatened injury need not be to the person of the owner onh-, but that threats of violence to his child, if made in his presence and for the purpose of theft, are of the same eflect as if the threat had been of violence to himself. Eead 4 Bl. Comm., pp. 242, 243. 1 II. P. C, p. 534. 3 Chitty C. L., pp. 803-805. 1 Russ. Ci-., pp. 874-900. 2 Arch. Cr. Pr., pp. 508-520, 524-528. 2 Wharfc. C. L., §§ 1C98'-1700, 1702. 2 Bish. C. L., §§ 1168-1176. 3 Greenleaf Ev., §§ 229-235. 282 ELEMENTARY LAW. CHAPTEE VI. OP MISDEMEAIJOKS AND STATUTE-FELONIES. § 437. Of Statute-Felonies. All crimes, which, are neither treason nor felony, are mis- demeanors. Statute-felonies are either misdemeanors, whose prosecution and punishment are, by statute, made to follow the procedure in felony, or are acts, not before known as crimes, which, by statute, are made felony. No crime, however, can be a felony unless it is such at common law, or is expressly declared to be so by a statute. Read 1 H. P. C, pp. 703-708. 1 Bish. C. L., §§ 235, 615, 618, 620, 622, 935. § 438. Of the Classes of Misdemeanors and Statute- Felonies. Misdemeanors and statute-felonies have been divided into nine classes : (1) Crimes against Public Justice; (2) Crimes against Public Peace ; (3) Crimes against Public Trade; (4) Crimes against Public Health; (5) Crimes against Public Policy ; (6.) Crimes against the Persons of individuals ; (7) Crimes against the Property of individ- uals ; (8) Attempts ; and (9) Solicitations. This classifi- cation is not entirely accurate, for there are several offences, which attack more than one public interest or right, and therefore belong to two or more of these divisions. With this exception, however, it presents, as well as any other MISDEMEANORS AND STATUTE-FELONIES. 283 that can be devised, the distinctive characteristics by which these crimes are separated from each other. Bead 4 Bl. Comm., pp. 128, 177. IBish. C. L.,§§ 444-597. § 439. Of Perjury. Crimes against public justice are those crimes by which the course of legal proceedings is perverted, impeded, or prevented. The principal crimes of this class are the following : Perjmy ; Bribery ; Escape ; Prison-Breach ; Rescue ; Receiving stolen goods ; Compounding ; Falsifying Records ; Obstructing Process ; Barratry ; Maintenance ; Champerty ; Conspiracy ; Embracerj' ; Official Negli- gence ; Oppression ; Pxtortion ; Misprision of Felonj'. Perjury is the wilful giving of false testimony under oath, before a competent tribunal, upon a point material to the issue. Testimony is wilfully false when the person testify- ing wilfaUy misrepresents the matter as it lies in his own mind, as when he testifies to what he knows is not true, or to what he does not know to be true, or to what he believes to be false. It is the corrupt intention which con- stitutes this crime ; and one who states the fact as it really is, if he believes that in so doing he is stating falselj^ gives false testimony. But no statement, however untrue, if made under a bona fide mistake, is false testimony, even if such mistake were the result of great carelessness. A person is under oath whenever he has been sworn or affirmed in legal form by an officer duly empowered so to do. A competent tribunal is one, which by law has cognizance of judicial proceedings, though, in some States, it includes all authorities, bj- whom the truth of any issue, involving tem- poral disadvantage, maj' be investigated and decided. Tes- timony is upon a point material to the issue, whenever it is calculated to influence the tribunal in its decision of the 284 ELEMENTARY LAW. issue, whether such influence be great or small. Suhorna- tion of perjury is the procuring of another person to com- mit perjur3-. Kead 4 Bl. Comra., pp. 137-139. 2Chitty C. L.,pp. 302-318. 2 Russ. Cr., pp. 596-603, 622-669. 2 Arch. Cr. Pi-., pp. 949-979. 2 Whait. C. L., §§ 2198-2287. 1 Bish. C. L., §§ 320, 437. 2 Bish. C. L., §§ 1014-1056, 1197-1199. 3 Greenleaf Ev., §§ 188-202. § 440. Of Bribery. Bribery is the giving or receiving of any valuable thing, in order that the receiver may be corruptly influenced thereby-, in the discliarge of some public dutj-. This crime is committed equall}^ by the giver and by the receiver. The acts, which it is designed to influence, need not be judicial acts ; to procure a public appointment by means of an undue reward, and to corruptly obtain votes for a public office, are bribery. Read 4 Bl. Coram., pp. 139, 140. 1 Russ. Cr., pp. 147-160. 2 Arch. Cr. Pr., pp. 903-906. 2 Bish. 0. L., §§ 85-89. 3 Greeuleaf Ev., §§ 71-73. § 441. Of Escape. Prison-Breach. Rescue. Escape is the flight from custody of a person, who is under lawful arrest and imprisonment. It may also be committed bj' an officer, who either connives at the flight of a person from his custody, or negligentlj' permits him to escape. The person escaping, and the officer who neg- ligently permits it, are guilty of a misdemeanor, but an oflicer, who connives at an escape, becomes guilty of the MISDEMEANORS AND STATUTE-FELONIES. 285 same degree of crime as that witli which his prisoner was charged. Prison-Breach is the forcible breaking out of a lawful place of imprisonment, by a person who is lawfully confined therein, and who, by means of such breaking, effects his escape therefrom. The breaking, though actual, need not be intentional, but it must result from the force used in escaping. It must also be performed by the prisoner himself, or by others through his procurement, for if he escapes through an aperture which was broken without his consent, it is not prison-breach in him ; nor is it prison- breach if he himself breaks and does not escape. To break from prison through necessity, as if the building be on fire, is not a crime. Rescue is the freeing of another, by force, from a lawful arrest or imprisonment. The rescuer thereby becomes guiltj' of the same degree of crime as that with ■which the person rescued was charged. Kead 4 Bl. Comm., pp. 130-132. 1 H. P. C, pp. 590-G12. 1 Rliss. Cr., pp. 410-436. 2 Avch. Cr. Pr., pp. 1074-1085. 2 Whart. C. L., §§ 2000-2015 f. 1 Bish. C. L., §§ 218, 310, 321. 2 Bish. C. L., §S 1004-1103. § 442. Of Receiving Stolen Goods. Receiving stolen goods, knowing them to have been stolen, is a crime, whenever such receiving was for the purpose of concealment or of profit. The receiver must have had manual possession of, or an actual control over, the goods, and must also have received them from the thief himself, and not from some other intermediate receiver. Read 4 Bl. Comm., pp. 132, 133. 3 Chitty C. L., pp. 951-9,59. 2 Arch. Cr. Pr., pp. 053-075. 2 Whart. C. L., §§ 1888-1903. 1 Bish. C. L., §§ 537, 094, 785. 2 Bish. C. L.,§§ 1137-1142. 286 ELEMENTARY LAW. § 443. Of Compounding Crinie. Compounding is the agreement of the injured party not to prosecute for the offence, in consideration of some pe- cuniary advantage. Thus where the owner of stolen goods receives the same from the thief, under a contract not to inform or appear against him, or where he takes a note in consideration that he will not prosecute, it is a compound- ing. The ^st of this offence is the concealment of the crime, and abstaining from prosecution, to the detriment of the public. Read 4 Bl. Coram., pp. 133, 134, 136. 1 Euss. Cr., pp. 131-134. 2 Arch. Cr. Pr., pp. 1065-1067. 2 Whart. C. L., §§ 2505-2507. 1 Bish. C. L., §§ 267-276, 604, 694, 699, 709-715. 2 B. & H. L. C. C, pp. 216-247. § 444. Of Falsifying Records. Falsifying Records is the wilful and fraudulent removal, suppression, or alteration of any public record. The law gives the highest credit to all public records, whether of a judicial or ministerial character ; and any alteration thereof, not made under competent authority and for the purpose of properly correcting the same, is a crime of great magni- tude. Thus to insert in, or erase names from, an indict- ment, to make or use a false affidavit, to change the parties or descriptions in the record of a deed, are such falsifica- tions as amount to crime. Some writers treat this crime under the head of forgery. Read 4 BI. Comm., p. 128. 2 Russ. Cr., p. 414. MISDEMEANORS AND STATUTE-FELONIES. 287 § 445. Of Obstructing Process. Obstructing Process consists in any act which is designed to, and actually does, prevent or hinder the officers of the law in the performance of their duties. This obstruction may be offered to the service either of civil or of criminal process ; and, when offered to the service of criminal pro- cess, makes the actor a participant in the original crime, and liable to its penal t}-. Read 4 Bl. Comm., p. 129. 1 Russ. Cr., pp. 408-415. 2 Arch. Cr. Pr., pp. 81-87. 1 Bish. C. L., §§ 340, 440, 464, 465, 696, 697. 2Bish. C. L., §§ 1009-1013. § 446. Of Barratry. Barratry is the habitual moving or exciting of quarrels between other persons, whether at law or otherwise. This crime cannot be committed by a single act, or by a series of acts constituting but one transaction. At least three in- stances are necessary, but whether three are always suffi- cient is still a question. The person guilty of this crime is called a common barrator, and, if he be an attorney-at-law, he is liable to be disbarred. Read 4 BI. Comm. , p. 134. 1 Ru.ss. Cr., p. 184. 2 Arch. Cr. Pr., pp. 1069-1071. 2 Bish. C. L., §§ 63-69. 3 Greenleaf Ev., §§ 66, 67. § 447. Of Maintenance. Maintenance is the giving of aid, to either party in a suit, by a third person who has no legitimate interest therein. Such aid may be by the furnishing of money, or by the 288 ELEMENTARY LAW. hiring of counsel, or bj' giving to the party public counte- nance and support. The existence of certain relationships, between such third persons and the party to the suit, will, however, justify such assistance. Thus a father may aid the son, or a son the father ; a husband may assist his wife, or a master his servant; and any one may aid a poor man in a suit to regain his right. Read 4 Bl. Coram., pp. 13i, 135. 1 Russ. Cr., pp. 175-178. 2 Arch. Cr. Pr., pp. 1072, 1073. 1 Bish. C. L., §§ 807, 5il. 2 Bish. C. L., §§ 121-130. 3 Greenleaf Ev., §§ 180-183. § 448. Of Champerty. Ohnwperly is the giving of aid to either partj- in a suit, ' by a third .person, under an agreement with such party that the proceeds of the suit, if any there be, shall be divided between them. Thus the agreement of an attorney to col- lect, by suit, a claim or claims, and take a certain propor- tion of the amount collected, or a bargain that if expense of the suit be borne by a third person, he shall have a percentage of the result, is champerty. Such agreements are void, and the recompense contracted for cannot be recovered by law. Akin to champertj' is the buying or selling of a doubtful or pretended title to lands, in order that the buyer may carry on the suit, when the seller does not thmk it worth his while so to do. Such purchase and sale must be with knowledge of the impediment. Read4Bl. Coram., p. 135. 1 Russ. Cr., pp. 178-181. 2 Arch. Cr. Pr., p. 1073. IBish. C. L., §§307,541. 2 Bish. C. L.,§§ 131-140. 3 Greenleaf Ev., §§ lSO-183. MISDEMEANORS AND STATUTE-FELONIES. 289 § 449. Of Conspiracy. Conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act in an unlawful manner. A conspiracy cannot be committed by one person alone, nor by husband and wife alone, for they are legally but one. There must be between the conspirators a concert of will and endeavor, not a mere coincidence of intention or attempt. The agreement must be to do some act in itself a crime, or some act which becomes a crime by the manner in which it is undertaken. Thus an agreement to do an act which is immoral but not illegal, or to effect a pur- pose not immoral or illegal in itself, but prejudicial to the public when done by the confederation of many, or to extort money or injure reputation by acts which in an individual are not criminal, or to cheat and defraud, or to impoverish and ruin, a person by means not indictable in an individ- ual, is a conspiracy, because, whatever the character of the act agreed to be done, the combination of numbers to effect it is a thing dangerous to the public, and not to be permitted by the law. Read 4 Bl. Comm., pp. 136, 137. 3 Chitty C. L., pp. 1138-1144. 2 Russ. Cr., pp. 674-705. 2 Arch. Cr. Pr., pp. 1044-1061. 2 Whart. C. L., §§ 2287-2861. 1 Bish. C. L., §§ 432, 592, 633-639, 767, 792, 801, 814. 2 Bish. C. L., §§ 169-240. 3 Greenleaf Ev., §§ 89-99. § 450. Of Embracery. Embracery is the attempt of any person to comiptly in- fluence a jury. Any influence which is exerted by any person, whether himself a juror or not, either upon single jurors or on the whole panel, by means of any promises, 19 290 ELEMENTARY LAW. threats, persuasions, gifts, entreaties, or in any other way than by the evidence and arguments of counsel in open court, is a corrupt influence. The giving of a reward to a juror or jurors, after verdict, partakes of the same char- acter. Read 4 Bl. Comm., p. 140. llluss. Cr.,pp. 182, 183. 2 Avch. Cr. Pr., pp. 906, 907. 2 Bish. C. L., §§ 384-389. 3 Greenleaf Ev., §§ 100, 101. § 451. Of OfEcial Negligence. Official negligence is the voluntarj' failure of justices, sher- iffs, constables, coroners, and other civil officers, to discharge those public duties which are imposed on them by the law. Where the duties are judicial in their character; the officer is not criminallj' liable unless he is corrupt, but where the dutj- is ministerial only, the neglect of it is alwa3-s indict- able. Legislators, judges of courts of record acting judi- cially, jurors, and such high officers of government as are entrusted with responsible discretionary duties, are not civil officers within the definition of this crime. Kead 4 Bl. Comm., p. 140. 1 Russ. Cr.,pp. 135, 138-140, 145. 2 Arch. Cr. Pr., pp. 591-595. 2 Whart. C. L., §§ 2524-2523. 2 Bish. C. L., §§ 971-982. § 452. Of Oppression. Oppression is the tjTannical partiality of any judge, justice, or other magistrate, in the administration of his office. To constitute this crime the acts of partiality must be corrupt, and proceed from dishonest motives, as from MISDEMEANORS AND STATUTE-FELONIES. 291 fear or favor, and not from a mere error of judgment or mistake of law. Read i Bl. Comm., p. 141. 1 Russ. Cr., pp. 135-137. 2 Whait. C. L., §§ 2517, 2518. § 453. Of Extortion. Extortion is the corrupt demanding or taking by an oflaeer, under color of his office, of anj' fee which is not due to him, or which exceeds what is due. Any officer, ■whether a justice, sheriff, attorney', tax-collector, or clerk of courts, and whether dejure or de facto, may commit this crime. The thing extorted must be taken as a fee ; that is, demanded or received hy the officer under color of his office. The extortion maj' be either by claiming a reward where the service is b}' law made gratuitous, or by de- manding an amount greater than the law fixes for the ser- vice, or by refusing to perform the service till the fee is paid, in cases where the law does not entitle the officer to be paid in advance. The motive must be corrupt ; for whete the reward is paid voluntarily, in return for real ben- efits conferred by extra exertions of the officer, or where the officer acts in good faith under a mistake, there is no extortion. Extortion may be committed against a county or a corporation, as weU as against an individual. Read 4 Bl. Coram., p. 141. 1 Russ. Cr., pp. 142-144. 2 Arch. Cr. Pr., pp. 596-602. ' 2 Whart. C. L., §§ 2519-2523. IBish. C. L.,§§573, 587. 2Bish. C. L.,§§ 390-408. 292 ELEMENTARY^ LAW. § 454. Of Misprision of Felony. Misprision of felony is the neglect of any person, who knows that a felony has been or is about to be committed, to give such information as maj' prevent such felony', or bring the felon to justice. Mere knowledge of the felony, without assent to it, is enough to make the concealer guilty of this crime. If, by his assent, he contributes thereto, he becomes a partaker in the felony. Kead4BI. Comm., p. 121. 1 Kuss. Cr., p. 131. 1 Bish. C. L., §§ 604, C24, 716-722, 895. § 45S. Of Riot. Rout. Unlawful Assembly. Crimes against public peace are those crimes, by which the peace and security of the public are disturbed. The principal offences of this class are the following : Riot ; Rout ; Unlawful Assembly ; Carrying Arms ; Challeng- ing ; Duelling ; Affray ; Disturbing Meetings ; Forcible Entrj' and Detainer; and Libel. Riot is the doing of some unlawful act of violence, or of some lawful act in a violent and tumultuous manner, by three or more per- sons, who are congregated together for that purpose. The act must be one calculated to create apprehension of danger, in the minds of persons other than the rioters. It need not be unlawful ; for, if it be ever so lawful, the doing of it in a turbulent manner, calculated to excite ter- ror, amounts to riot. Nor is it necessary that the intent to do the riotou^ act exist before the actual assembling of the rioters ; for a peaceable and lawful assembly' maj', by the subsequent formation of a riotous design, and the commission of the riotous act in pursuance thereof, be- come a riot. All persons who join the assemblage while it is engaged in a riot, and assist therein, are as truly rioters as if they had co-operated with it from the begin- MISDEMEANORS AND STATUTE-FELONIES. 293 ning. All persons who are present, and concur in the acts of the assembl3', are also responsible therefor. Bout is the congregating together of three or more persons, for the pur- pose of doing some act which, if done, would amount to riot, and the doing by them of something in reference thereto. It agrees in all respects with riot, except that it may be a complete offence without the commission of the intended act. Unlawful Assembly is the congregating together of three or more persons, for the purpose of doing some act which, if done, would amount to riot. Such an assembly need not intend an^- specific mischief; if it is of a char- acter calculated to excite public terror and alarm, it is unlawful. Kead 4 Bl. Comra., pp. 146, 147. 1 Russ. Cr., pp. 266-274. 2 Arch. Cr. Pr., pp. 934-945. 2 Whart. C. L., §§ 2473-2493. 1 Bish. C. L., §§ 534, 537, 632, 637, 658, 795, 875. . 2 Bish. C. L., §§ 56, 226, 653-655, 691, 1143-1155, 1183-1186, 1256-1259. 3 Greenleaf Ev., §§ 216-222. § 456. Of Carrying Arms. Carrying Arms is the going about armed with dangerous or unusual weapons, to the terror of the public. The Con- stitution of the United States secures the right to keep and bear arms, such as are used for purposes of war, in defence of the citizens or the state. It gives, however, no right to carry unusual weapons, or to carry any weapon in a tumul- tuous manner and to the disturbance of the public peace. Kead 4 BL Coram., p. 149. 1 Bish. C. L., § 540. Cooley Const. Lim., p. 350. Ccoley Const. Law, pp. 270-272. 294 ELEMENTARY LAW. § 457. Of Challenging. Duelling. Challenging is the exciting, inviting, or provoking of another to Ught. Duelling is the agreement of two or more persons to fight, arid their actual fighting in pursuance of such agreement. A challenge may be verbal or written, and maj' be expressed in any words which are intended to be understood, and are understood, as an invitation to fight. Mere words of abuse, however, do not constitute a challenge. When death results y^om a duel, it is murder in the person killing ; and all persons present, and giving countenance to the duel, are guilt3' of the same crime. Read 4 Bl. Coram., pp. 150, 199. IRuss. Cr., pp. 297, 208. 2 Whai-t. C. L., §§ 2674-2685 b. 1 Bish. C. L., §§.540,654. 2 Bish. C. L., §§ 311-317. § 453. Of Affray. ■^ff'''^y is the fighting of two or more persons in a public place, to the terror of the public. A puUic place is a place to which people in general are, at the time, privileged to resort, without an invitation. A fight in a private place, though in the presence of others, is not an affray. Mere words are not such fighting as to constitute an afi'ray ; ac- tual or attempted violence is necessary. The terror may be actual, or it may be presumed by law from the fighting itself, if calculated to excite it. An affray may be aggra- vated by the circumstances under which it is committed, as if it be dangerous in its tendency, or occur in a court of justice. Read 4 Bl. Coram., pp. 145, 146. 1 Russ. Cv., pp. 291-296. 2 Arch. Cr. Pr., pp. 945-948. 2 \Vhart. C. L., §§ 2494-2498. 1 Bish. C. L., §535. 2 Bish. C. L., §§ 1-7. MISDEMEANORS AND STATUTE-FELONIES. 295 § 459. Of Disturbing Meetings. Disturbing Meetings is the wrongful interruption of per- sons, who are assembled for a lawful purpose. All per- sons have a right peaceably to assemble for worship, for political discussion , or for anj- other purpose not in itself unlawful, and the invasion of this right hy others is an in- dictable offence. What amounts to a disturbance depends upon the circumstances of each individual case, for what is proper in one kind of meeting would not be permissible in another. But the interruption must be wilful and de- signed, and not the result of accident or mistake. Read 1 Russ. Cr., p. 299. IBish. C. L.,§5i2. 2Bish. C. L., §§ 301-310. § 460. Of Forcible 3E!ntry and Detainer. Forcihle Entry is an entry upon land which is in the peaceable possession of another, with such an array of force as to cause terror in those who are present opposing. Forcible Detainer is the detaining of the possession of land, from a person rightfully entitled thereto, hy such force as to excite terror in those who are present claiming possession. The premises entered upon must be in the peaceable possession, as distinguished from the bare cus- tody, of another ; and the act of entry or detainer must be accompanied by such violence of conduct or language, or be effected by such an array of numbers, as to excite a reasonable apprehension, in the minds of those who op- pose it, that bodily harm to themselves, or a breach of the public peace, will result, if they do not cease to hold or claim their possession. But the violence may be offered either to the property or to the person, and cither upon the premises or apart therefrom, provided it is coupled 296 ELEMENTARY LAW. with a claim to the possession of the land, and with a design thereby to enforce such claim. Kead 4 Bl. Comm., p. 148. 3 Chitty C. L., pp. 1120-1123. 1 Russ. Cr., pp. 304, 307-316. 2 Arch. Cr. Pr., pp. 330-340. 2 Whart. C. L., §§ 2013-2055 b. 1 Bish. C. L., §§ 536-538. 2Bish. C.L.,§§ 489-516. § 461. Of LibeL Libel is the wilful and malicious publication, in a per- manent and visible form, of some matter tending to injure the reputation of another. It involves the same acts as the private wrong of the same name. Read 4 Bl. Coram., pp. 150-153. 3 Chitty C. L., pp. 866-877. 1 Russ. Cr., pp. 220-264. 2 Arch. Cr. Pr., pp. 195-253. 2 Whart. C. L., §§ 2535-2605 a. 1 Bish. C. L., §§ 204, 221, 308, 319, 591, 734, 761. 2 Bish. C. L., §§905-949. 1 B. & H. L. C. C, pp. 145-157. 2 B. & H. L. C. C, pp. 432-445. 3 Greenleaf Ev., §§ 164-179. § 462. Of Cheating. Embezzlement. False Pretences. Crimes against public trade are crimes, by which the free- dom and security of public trade are restricted or impaired. The principal crime of this class is Cheating. Cheating is the perpetration of a fraud, injurious to the person or estate of another, bj' means against which common pru- dence cannot guard. Mere words, whether spoken or written, however false, do not amount to a cheat. There MISDEMEAKOKS AND STATUTE-FELONIES. 297 must be some visible symbol or tolcen, of such a nature that, according to the customs of society, all persons are supposed to place confidence therein. Thus false weights or measures, false dice, worthless bank-bills, forged in- struments, such as deeds, orders, notes or receipts, are tokens, the use of which, in defrauding another, makes such fraud a cheat. The person defrauded must have acted in consequence of his reliance on the truth of such token or symbol, for if his consent to the transaction was induced bj' other motives it is not a cheat. Embezzlement and False Pretences are fraudulent acts of one person, by which injurj' is done to another, but which do not amount to cheats at common law. They are made criminal both by English and American statutes, and the details of the crimes must be gathered from the statutes themselves. In general terms, however, embezzlement may be defined as the fraudulent conversion of property, by a person to whom it has been entrusted by the owner ; and false pre- tences as the obtaiaing of the personal chattels of another, by means of such false representations, in regard to exist- ing facts, as induce the owner to part with his property. Read 4 Bl. Comm., pp. 157, 158. 3 Chitty C. L., pp. 994-999. 2 Euss. Cr., pp. 167-234, 275-313. 2 Arch. Cr. Pr., pp. 560-590, 603-652. 2 Whait. C. L., §§ 1905-1961,2056-2162 h. 1 Bish. C. L., §§ 257, 438, 567, 571, 582, 584-586. 2 Bish. C. L., §§ 141-168, 318-383, 409-488. 3 Greenleaf Ev., §§ 84-88. § 463. Of Nuisances to Health. Crimes against public health are those crimes, by which the physical health of the people at large is endangered or impaired. The sale of unwholesome provisions, the de- 298 ELEMENTARY LAW. element of wells or springs of drinking-water, the bring- ing into a public place of persons or animals afllicted with infectious diseases, are the principal crimes of this class. Read 4 Bl. Coram., pp. 161, 162. IRuss. Cr., pp. 105-110. IBish. C. L.,§§ 489-494. § 464. Of Bigamy. Crimes against public policy are those crimes, by which the decency, morals, or good order of society are vio- lated. The principal crimes of this class are : Bigamy ; Blasphemy ; Profanity ; and Public Nuisances. Bigamy consists in the contracting of a marriage, during the con- tinuance of a prior lawful marriage relation. The prior marriage must have been valid, or, if voidable, not avoided, and must not have been dissolved either by death or by divorce. After seven years absence, unheard-from, of one party to a marriage, the other may presume the death of the one absent, and may contract another marriage without incurring the guilt of bigamy. The second marriage must have been so contracted that it would have been valid, but for the existence of the former. Read 4 Bl. Comm., pp. 163-165. 1 Euss. Cr., pp. 185-190, 208-210, 217-219. 2 Arch. Cr. Pr., pp. 1023-1033. 2 Whart. C. L., §§2616-2642. 1 Bish. C. L., § 502. 3 Greenleaf Ev., §§ 203-208. § 465. Of Blasphemy. Profanity. Blasphemy is any reproach, oral or written, wilfully cast upon God, his name, attributes, or religion. Any words calculated and designed to impair and destroy the rever- ence, respect, and confidence, due to God as the creator, MISDEMEANORS AND STATUTE-FELONIES. 299 governor, and judge of the world, such as a denial of his being or providence, or any profane and malicious scoff- ing at the Holy Scriptures, exposing them to contempt and ridicule, or any other declarations which tend to sub- vert religion and piety, are blasphemj-. Profanity consists in the use of words which import an imprecation of future divine vengeance. Read 4 Bl. Comm., pp. 59, 60. IBish. C. L.,§498. 2Bish. C. L., §§73-84. 3 Gieenleaf Ev., §§ 68-70. § 466. Of Public Nuisances. A Puhlic Nuisance is any act or omission, which unlaw- fully annoj's or injures the public. An annoyance or injury is puhlic when it is committed in a public place, or against a number of persons, and is, in its nature, calculated to injure or annoy all who come within its influence. The number of persons or families, necessary to constitute the public, is at least three. The principal acts or omissions, which are indictable as nuisances, are these : Keeping a bawdj'-house, or house of ill-fame ; Keeping a disorderly- house, or house where people resort to the disturbance of the public ; Eaves-dropping ; Wilful exposure of the per- son in a public place ; Keeping a public gaming-house ; Public Drunkenness ; Public Lewdness ; Immoral Exhi- bitions ; Carrying on trades injurious to the public ; Obstructing public highwaj's or navigable waters. Eead 4 Bl. Comm., pp. 167-169. 1 Russ. Cr., pp. 317-407. 2 Arch. Cr. Pr., pp. 980-1023. 2 Whait. C. L., §§ 2362-2428. 1 Bish. C. L., §§ 227, 243, 244, 531, 1071-1151. 3 Greenleaf Ev., §§ 184^187. 300 ELEMENTARY LAW. § 467. Of Assault. Battery. Mayhem. Crimes against the persons of individuals are those crimes, by which the rights of personal security and per- sonal liberty are violated. They are principally the following : Assault ; Battery ; Majhem ; False Imprison- ment ; and Kidnapping. An Assault is a manifestation, by acts, of a present purpose to do unlawful physical vio- lence to another. Battery is the actual doing of unlawful physical violence to another. These crimes involve the same acts as the private wrongs, which are called by the same names. Mayhem is the doing of such physical vio- lence to the person of another, as to render him less able, in fighting, to defend himself or annoy his enemy. To put out the eye, to cut off the hand or foot or any part thereof, to break a bone in the hand, to crush the mouth or head, to pull out the tongue, to break the fore-teeth, to castrate a man, to burn or sear a limb so as to wither and weaken it, are mayhems. But to cut off the nose or ears, or destroy the back- teeth, are not mayhems. Eead 4 Bl. Comm., pp. 205-208, 216, 217. 3 Chitty C. L., pp. 784-787. 1 Russ. Cr., pp. 719, 720, 750-759. 2 Arch. Cr. Pr., pp. 11-17, 39-76. 2 Whart. C. L., §§ 1171-1175, 1241-1295. 1 Bish. C. L., §§ 259, 260, 470, 548. 2 Bish. C. L., §§ 22-62, 70-72, 1001-1008. 3 Greenloaf Ev., §§ 58-65. § 463. Of False Imprisonment. Kidnapping. False Imprisonment is the unlawful detention of the per- son of another. It involves the same acts as the tort which is known by the same name. Kidnapping is the unlawful removal of a person from his own state or coun- try, against his will. Actual force is not necessary ; if tlie MISDEMEANOES AND STATUTE-rELONIES. ,301 removal be accomplished by threats, it is snfflcient. Nor is resistance, on the part of the person kidnapped, neces- sary ; the carrying away of a child too young to consent, or of any person while in a state of insensibility and un- able to resist, or whose resistance is overcome by menaces, constitutes the crime. Read 4 Bl. Comm., pp. 218, 219. 2 Arch. Cr. Pr., pp. 91-94, 133-140. 2 Whai-t. C. L., §§ 1202-1213. 2 Bish. C. L., §§ 26, 56, 740-756. § 469. Of Forgery. Crimes against the property of individuals are those crimes, bj' which the right of private property is violated. The principal crimes of this class are : Forgery ; Coun- terfeiting ; Malicious Mischief; and Piracy. Forgery is the false and fraudulent making or alteration of any writ- ing, which, on its face, imports a legal obligation. Any form of instrument, by which one person can become legallj' obligated to another, is a writing subject to for- gery. Any alteration of such an instrument, in any par- ticular whereby its legal effect is varied, is a sufficient alter- ation to constitute a forgery. Such alteration is false when made by any person having no lawful right so to do ; and is fraudulent when made with intent that the false instru- ment shall be used or received as valid. The crime is completed by the making or alteration of the instrument with intent to defraud, although no one niay be in fact defrauded. Counterfeiting is the making of false coin in the similitude of the genuine. The coin need not be uttered or used as money, but it must be so far finished as to be capable of such use. It must be base or spurious. 302 ELEMENTAKY LAW. and its resemblance to the genuine must be so close, as to be likely to deceive a person using ordinary caution. Read 4 Bl. Comm., pp. 247-250. 3 Chitty C. L., pp. 1022-1044. 1 Russ. Cr., pp. 54-85. 2 Euss. Ci-., pp. 318-408. 2 Arch. Cr. Pr., pp. 797-881, 909-916. 2 Whart. C. L., §§ 1418-1510. 1 Bish. C. L., §§ 479, 572, 584, 585, 650, 734, 748, 769. 2 Bish. C. L., §§ 158, 274-300, 521-612. 3 Greenleaf Ev., §§ 102-113. § 470. Of Malicious Mischief. Malicious Mischief is the wilful and malicious injury or destruction of the property of another. It was anciently held that real as well as personal propertj^ was subject to this crime, and in some modern eases the same doctrine has been declared. The current of judicial opinion, how- ever, favors its confinement to personal propert3^ The injury done must be serious, and must be prompted by actual ill-will or resentment against the owner of the prop- erty injured. Read 4 Bl. Comm., pp. 243-247. 2 Arch. Cr. Pr., pp. 708, 709. 2 AVhart. C. L., §§ 2001-2012 c. 1 Bish. C. L., §§ 508-570, 077, 595. 2 Bish. C. L., §§ 983-1000. § 471. Of Piracy. Piracy consists in the doing, on the high seas, of any act of robbery or depredation, which, if done upon the land, would be a felony. The high seas are the uninclosed waters of the ocean, outside of the general line of the MISDEMEANOES AND STATUTE-PELONIES. 803 coast. Tide-waters, flowing in harbors or basins that are enclosed between headlands, are not high seas. But the mouth of a river a mile and a half wide, or a roadstead open to the sea and not land-locked, is the high sea. In this countrj', the crime is chieflj', if not altogether, a statu- tory one, and the description of its limits and characteris- tics is to be sought in the Acts of Congress. Read 4 Bl. Comm., pp. 71-73. 3 Chitty C. L., pp. 1127-1130. 1 Rnss. Cr., pp. 94-lOi. 2 Arch. Cr. Pr., pp. 680-691. 2 Whart. C. L., §| 2829-2840. 1 Bish. C. L., §§ 120, 303. 2Bish. C. L.,§§ 1057-1063. § 472. Of Attempts. An Altempt . consists in the intent to commit a crime, combined with the doing of some act adapted to, but fall- ing short of, its actual commission. An attempt alwaj's includes a specific intent, without which the act done would either be no crime, or a different crime from that attempted. This intent, therefore, must be both alleged and proved. The act done must be, in its nature, adapted to accomplish the crime intended. It is not necessarj' that the intended crime should have been actually possible to the one at- tempting, provided it were apparentl}^ so ; for if it were evidentl3-, in its own nature, impossible, the intent to commit it could not legally exist. Thus it has been held that a boy under fourteen cannot intend to commit rape, or a forger intend to defraud a person or corporation which does not exist ; while, on the other hand, it has been de- cided that there may be an attempt to pick a pocket, though the pocket contains nothing, or an attempt to kill, although the intended victim is not within actual reach of 304 ELEMENTARY LAW. the weapon. The intent must subsist during the entire commission of the act, for only such a part thereof is an attempt as proceeds from the intent to commit the crime. Kead 2 Arch. Cr. Pr., pp. 29-32. 2 Whart. C. L., §§ 2686-2712. 1 Bish. C. L., §§ 204-206, 237, 434, 435, 540, 604, 675, 723-772. 2 B. & H. L. C. C, pp. 474r-483. 3 Greenleaf Ev., § 2. § 473. Of Solicitations. A Solicitation is the inciting or persuading of another to commit a felony or other serious crime. The solicita- tion is complete, though the person solicited refuse. Kead 2 Whart. C. L., § 2691. 1 Bish. C. L., §§ 501, 767, 768. 2 Bish. C. L., § 20. RELATION OF CRIMINAL ACTOR TO THE ACT. 806 CHAPTER Vn. OF THE RELATION OF THE CEIMINAI, ACTOE TO THE CEIMINAI, ACT. § 474. Of Principals and Accessories. Criminal actors are of two classes, according to the relation which they sustain to the criminal act ; Principals and Accessories. A principal is one who participates in the commission of the criminal act. An accessory is one who does not participate in the commission of the crim- inal act, but who concurs in or sanctions the act, and in some way contributes to its commission, or attempts to prevent its punishment. This distinction between prin- cipals and accessories is recognized only in regard to felonj'. In treason, all who are engaged are principals, whether they merely procure and encourage the treason- able act to be done, or actually participate in its com- mission, or harbor or assist the traitor ; while those, who conceal the act after its commission, are guilty of mis- prision. In misdemeanor also, all, of whose guilt the law takes notice, are principals. Kead 4 Bl. Coram., pp. 34, 35, 36. 1 ChittyC. L., pp. 256, 261. 1 Russ. Cr., pp. 26, 32, 33. 1 Arch. Cr. Pr., p. 58. 1 Whart. C. L., §§ 112, 131. 1 Bish. C. L., §§ 604, 626-659. SGreenleaf Ev., §§40-50. 20 306 ELEMENTARY LAW. § 475. Of Principals in the First Degree. Principals are of two kinds : Principals in the First De- gree, and Principals in the Second Degree. A frincipal in the first degree is one, who commits the act either di- rectly by himself or through an innocent agent. Where several acts are necessary to complete a crime, and each act is done by a different person, each of such persons is a principal in the first degree. Where one commits a criminal act by means of an inanimate object, or by means of another person who is without criminal intent, he is principal in the first degree, even though absent at the doing of the act. Read 4 Bl. Comm., pp. 34, 35. 1 H. P. C, p. 615. 1 Chitty C. L., p. 256. 1 Russ. Cr., p. 26. 1 Arch. Cr. Pr., pp. 58-61. 1 Whart. C. L., §§ 112-115. § 476. Of Principals in the Second Degree. A principal in the second degree is one, who does not himself commit the act, but who is actually or construct- ively present at its commission, aiding and abetting therein. Any assistance or readiness to assist, however manifested, is an aiding and abetting. A person is actually present at the commission of a crime, when he is at the place where such crime is committed, while it is being committed. He is constructively present when he is so situated, with reference to the place where the crime is committed, while it is being committed, as to be able, if necessary, to personally assist therein. Read 4 Bl. Comm., pp. 34, 35. 1 H. P. C, p. 615. 1 Chitty C. L., pp. 256-260. 1 Russ. Cr., pp. 26-30. 1 Arch. Cr. Pr., pp. 61-69. 1 Whart. C. L., SS 116-133. RELATION OF CRIMINAL ACTOR TO THE ACT. 307 § 477. Of Accessories Before the Fact. Accessories are also of two kinds : Accessories Before ttie Fact, and Accessories After the Fact. An. accessory before the fact is one, who does not participate in the com- mission of the act, but who concurs in and contributes to its commission. Any one, who procures, advises, or en- courages another guilty person to commit a criminal act, is such an accessory, whether he be the original contriver of the crime or not. But the crime must be actually com- mitted ; for where there is no act there can be no acces- sory. Read 4 Bl. Comm., pp. 35-37. 1 H. P. C, pp. 612-618. IChittyC. L.,pp. 261-264. 1 Euss. Cr., pp. 30-36. 1 Arch. Cr. Pi-., pp. 70-78. 1 Whart. C. L., §§ 134-145. 1 Bish. C. L., §§ 660-689. § 478. Of Accessories After the Fact. An accessoj-y after the fact is one, who does not partici- pate in the commission of the act, but who sanctions it after it has been committed, and endeavors to prevent its punishment. Any one who knows a crime to have been committed, and, with such knowledge, in any manner as- sists the criminal to escape from justice, becomes thereby an accessory after the fact. A father may not assist the son, nor maj- the husband assist the wife. If a wife assists her husband, she is presumed to do it under coercion, and is not an accessory. A person does not, however, become an accessory by acts of charity or mercy to a criminal, such as feeding him when in prison, or procuring bail or counsel for him. An accessory, whether before or after the fact, 308 ELEMENTARY LAW. cannot be tried, without his consent, before the trial and conviction of his principal. Head 4 Bl. Comm., pp. 37-40. 1 H. P. C, pp. 618-626. 1 Chitty C. L., pp. 284-266. 1 Kuss. Cr., pp. 36-43. 1 Arch. Cr. Pr., pp. 78-83. 1 Whart. C. L., §§ 146-154. 1 Bish. C. L., §§ 690-708. CRIMINAL PEOCEDUEE. 309 CHAPTER VIII. OF CEIMINAL PEOCEDTTRE. § 479. Of the Successive Steps in Criminal Procedure. The acts, which enter into the prosecution and punish- ment of crime, taken collectively, are known as criminal procedure. In its general character, this procedure is everywhere the same, though its details are largelj'' depen- dent upon local usages and statutes. It consists of the following parts or stages : (1) Arrest ; (2) Commitment and Bail ; (3) Prosecution ; (4) Process ; (5) Arraign- ment ; (6) Plea and Issue ; (7) Trial and Verdict ; (8) Motion for a New Trial ; (9) Motion in Arrest of Judg- ment ; (10) Judgment ; (11) Reversal or Vacating of Judgment; (12) Pardon; (13) Execution. Many of these parts may not, and the whole cannot, be present in any given proceeding, nor is it necessaiy that those, which do occur, should succeed each other in the order above mentioned. In discussing them, only the general rules in reference to each can be examined, and the student is referred to the authorities, and especially to local statutes, for exact and detailed information. Kead 4 Bl. Coram., p. 289. IBish. C. P.,§§l-44. § 480. Of Arrest with Warrant. An arrest is the apprehension, or taking into custody, of an alleged offender, in order that he may be brought to trial for the crime. It ma-y be made : (1) By an officer, or 310 ELEMENTAEY LAW. indifferent person, -witli warrant ; (2) By an oflScer, or pri- vate person, without warrant ; (3) By any person under a hue and cry. A warrant is a written mandate, issued by a proper magistrate, and directed to a proper officer or in- different person, commanding him to arrest the alleged offender, and bring him before the proper authority to answer for the crime. It should describe the person to be arrested, the crime for which he is to be arrested, the tri- bunal before which he is to he brought, the person by whom it is to be served, and be dated and signed by the magistrate who issues it. Armed with this warrant, the person, to whom it is directed, may arrest the alleged offender, whoever he may be, at any time or place, and, in many cases, may break open the doors of any house, when such breaking is necessary in order to effect the arrest. Read 4 Bl. Comm., pp. 289-292. 1 H. P. C, pp. 575-587. 2 H. P. C, pp. 105-120. 1 Chitty C. L., pp. 11-16, 31-64. 1 Arch. Cr. Pr., pp. 120-135. 3 Whart. C. L., §§2925, 2926. 1 Bish. C. P., §§ 187-207 a. 1 B. & H. L. C. C, pp. 202-228. § 481. Of Arrest without Warrant. An officer may arrest without warrant: (1) When a felony, or any crime in violation of the public peace, is, at the time of the arrest, actually being committed in his pres- ence ; (2) When he has probable cause for believing that a felonj- has been committed, and that the person arrested is the felon. A private person may arrest without warrant: (1) When a felonj-, or any crime in violation of the public peace, is, at the time of the arrest, being committed in his presence ; (2) When a felony has actually been committed, CRIMINAL PEGGED UEE. 811 and he has probable cause for believing that the person arrested is the felon. Kead 4 Bl. Comm., pp. 292, 293. 1 H. P. C, pp. 587-589. 2 H. P. C, pp. 72-98. 1 Chitty C. L.i, pp. 16-28. 1 Arch. Cr. Pr., pp. 87-119. 3 Whart. C. L., §§ 2927-2936. 1 Bish. C. P., §§ 164-186. 1 B. & H. L. C. C, pp. 177-202. § 482. Of Arrest by Hue and Cry. A hue and cry is a general alarm, raised by a magistrate or other officer, and in some cases by a private person, for the pursuit and capture of a felon, or of one who has committed a dangerous assault. All persons, who are called upon to assist in the arrest under a hue and cry, are bound to do so, and each of them has the same au- thoritj', and may employ the same methods to effect the arrest, as an officer acting under a warrant. Kead 4 Bl. Comm., pp. 293, 294. 2 H. P. C, pp. 98-104. 1 Chitty C. L., pp. 26-31. 1 Arch. Cr. Pr., pp. 109-111. § 483. Of the Act of Arrest. Actual physical prehension, of the body of the accused, is necessary to constitute an arrest in all cases, where he does not knowingly and voluntarily submit himself to cus- tody. Yet any act of taking, such as a touch with the end of the finger or the locking up of the accused in a room, IS a sufficient prehension ; and the arrest is not vacated, though the arrested person immediately escape therefrom. 312 ELEMENTAEY LAW. It is the duty of the person, making the arrest, to disclose his official character and purpose to the accused, unless the circumstances sufficiently declare it, and to inform him, if he desires it, of the crime with which he is charged, and of the tribunal before which he is about to be conveyed. It is also his dutj' to use no unnecessary violence, and, as soon as he reasonably can, to present the accused before the court having cognizance of the offence. Read 3 BI. Comm., p. 288. 1 H. P. C, pp. 458, 583. 1 Chitty C. L., pp. 12, 48, 51, 59, 60. 1 Arch. Cr. Pr., pp. 112, 113. 3 Whart. C. L., §§ 2922-2924, 2975. 1 Bish. C. P., §§ 156-163, 213-218. § 484. Of Arrest on Requisition. Extradition. Where a criminal flees into a state other than that in which the crime was committed, no ordinary methods of arrest can reach him. The state, into which he flees, has no jurisdiction over him, because the crime was, not com- mitted against its people or its laws ; and the state, whose law has been violated, is powerless, because a warrant, issued by its magistrates, is valid only within its territory. To meet this difficulty, the Constitution of the United States has provided that such fugitives from justice shall be delivered, by the authorities of the State into which they flee, to the authorities of the State where the crime was committed, upon demand of the executive authority of the latter State. This demand is called a requisition. By similar proceedings, under the extradition treaties of the United States, persons who have committed hein6us crimes within the territory of the United States, and have CRIMINAL PROCEDURE. 313 fled into the territory of certain foreign states, may also be arrested and returned. Read 1 Arch. Cr. Pr., pp. 135-141. 3 Whavt. C. L., §§ 2948-2973. IBish. C. P., §§ 219-224 b. Woolsey Int. Law, §§ 77-80. Cooley Const. Law, pp. 189-192. § 485. Of the Return of the Warrant and Proceedings Thereon. When the magistrate, before whom the alleged offender is presented, has final jurisdiction over the offence, the trial may either be immediately begun, or be postponed until a future day. Where the magistrate has not such jurisdiction, the examination of the evidence may be post- poned, or it may be proceeded with, and the accused dis- charged or held to answer, as the facts require. If the trial or hearing is postponed, or if, after a hearing, the accused is held to answer, he must, in some way, be detained in custody until the trial is at an ead. This is accomplished either by commitment or bj- bail. Read 4 Bl. Comm., p. 296. 2 H. P. C, pp. 120, 121. 1 Chitty C. L., pp. 72-92. 1 Arch. Cr. Pr., pp. 149-167. 3 Whavt. C. L., §§ 2977-2981. 1 Bish. C. P., §§ 225-234. § 486. Of Commitment. Oommitment is a written mandate, issued by the magis- trate before whom the alleged offender is presented, and directed both to a proper officer and to the keeper of a 314 ELEMENTARY LAW. lawful place of imprisonment, commanding the officer to carry and deliver, and the keeper to receive and safely keep, the body of the accused during the time specified therein, or until he is released by due course of law. In pursuance of this mandate, the alleged offender, if not duly bailed, is taken to such place of imprisonment and there confined. A commitment is also called a mittimus. It must describe the alleged offender by his full name, or the name he gives as his ; it must set out, ■ndth convenient certainty, the crime with which he is charged ; and it must be dated and signed by the magistrate who issues it. Head 4 Bl. Comm., p. 300. 2 H. P. C, pp. 122-124. 1 Chitty C. L., pp. 107-132. 1 Arch. Cr. Pr., pp. 167-184. 1 Bish. C. P., §§ 234-236. § 487. Of Bail. BaU-Piece. Bail is the delivery or- bailment of the arrested person to certain sureties, upon their giving sufficient security for his appearance in court. The person, so delivered or bailed, is thereafter in the custody of his sureties, and may, at anjr time and at any place, be arrested bj' them and surrendered to the court, in discharge of their liability ; or they may sue out a warrant, called a bail-piece, and, upon this warrant, he may be arrested by the person to whom it is directed. In all bailable cases, the accused has the right to be enlarged, on reasonable bail, at any time be- tween his arrest and his final sentence. If he appears in court at the time specified, his sureties are discharged. If he fails to appear, the securitj- given for his appearance becomes forfeited, and may be appropriated or collected CRIMINAL PKOCEDUEE. 315 in the same manner as any other property belonging or due to the state. Read 4 Bl. Coram., pp. 297-299. 2 n. P. C, pp. 124-149. 1 ChittyC. L.,pp. 92-106. 1 Arch. Cr. Pr., pp. 184-210. 3 Whart. C. L., §§ 2976, 2982-2989. 1 Bish. C. P., §§ 247-264 m. 1 B. & H. L. C. C, pp. 228-260. § 483. Of Informations. Prosecution is the formal accusation of the alleged offender. It may take place before the arrest, and a war- rant may be issued thereupon ; or it may be made after the arrest, and when the accused is brought into the court which has final jurisdiction over his offence. It is of three kinds : Information ; Indictment ; and Presentment. An information is a written accusation, presented under oath, by a proper public prosecutor, to a court having jurisdic- tion of the offence charged therein. This is the mode of prosecution usually adopted in cases of small magnitude, though, in some States, it is used almost to the exclusion of everj' other. Read 4 Bl. Coram., pp. 301, 308-310. 2 H. P. C, p. 156. 1 Chitty C. L., p. 166. 1 Arch. Cr. Pr., pp. 227-229. 1 Whart. C. L., pp. 211-214. 1 BLsh. C. P., §§ 141-153, 712-715. § 489. Of Indictments. Grand-Jury. An indictment is a written accusation, presented by a grand-jury, under oath and upon the suggestion of the public prosecutor, to a court having jurisdiction of the offence charged therein. A grand-jury is a body of men, 316 ELEMENTAEY LAW. legally selected from among the people of a county, to in- quire what offences have been committed therein. When assembled in court, they are duly sworn, and instructed in their duty by the judge. An indictment, framed by the public prosecutor against the alleged offender, is then laid before them, together with the evidence in support thereof. If twelve of the grand-jury agree that the evidence is suf- ficient to put the accused upon his trial, tiie foreman en- dorses the indictment as a true bill, and it is returned to court, in order that the offender may be tried' thereon. If twelve do not agree that the evidence is sufficient, the indictment is endorsed and returned as not a true bill, and the accused is either discharged, or held to await action on a new indictment. Bead 4 Bl. Comm., pp. 302-306. 1 Chitty C. L., pp. 161-163, 805-325. 1 Arch. Cr. Pr., pp. 320-330, 528-539. IWhartCL., §§452-512. 1 Bish. C. P., §§ 130-135, 849-889. 1 B. & H. L. C. C, pp. 260-271. § 490. Of Presentments. A presentment is a written accusation, presented by a grand-jury, under oath and of their own motion, to a court having jurisdiction of the offences charged therein. It is rarel}' employed except in cases of public nuisance, or of some dangerous and wide-spreading evil. Upon the pre- ferment of such an accusation, the court usually orders an indictment to be framed, and issues a warrant thereon for the aiTest of the alleged offender. Read 4 Bl. Comm., pp. 301, 302. 2 H. P. C, pp. 152-155. 1 Chitty C. L., p. 163. 1 Arch. Cr. Pr., p. 342. IBish. C. P., §§136-140. CRIMINAL PROCEDURE. 317 § 491. Of the Requisites of an Indictment. Except that one is presented by the public prosecutor, and the other by a grand-jury, an indictment and an infor- mation are substantially the same. Each must contain a statement of all the facts and circumstances, necessary to constitute the crime, with such particularity and certainty, that the accused may know the nature of the crime, with which he is charged, and what he has to answer ; that the jury may be warranted in their conclusion of guiltj' or not guilty upon the premises delivered to them ; that the court may see, upon the record, a definite offence upon which judgment ma}^ be rendered ; and that the record of conviction or acquittal maj' be pleaded in bar to a subse- quent prosecution for the same offence. Read 4 Bl. Comm., pp. 306, 307. 1 Chitty C. L., pp. 168-176. 1 Whart. C. L., §§ 285-304. 1 Bish. C. P., §§77-88, 818-359. 2 B. & H. L. C. C, pp. 94-163, 172-181. § 492. Of the Description of the Accused. The rules, which have been established for the purpose of securing this particularity and certainty, relate espe- cially to the description of the accused, of the place where and time when the criminal act was committed, of the property or person injured, and of the acts constitut- ing the crime itself. The name of the accused must be stated at length, if it be known, and should be repeated in every distinct allegation. If he be hnown hy different names, "they should be stated under an alias. If his name he not hnown he should be described under some name, and if he plead under that name, it will be taken as his true one. His place of residence should also be stated, if known ; if not known, he may be described as a transient person. 318 ELEMENTAEY LAW. Anj' mistake, in these matters, can be taken advantage of only by plea in abatement, which will result in the correc- tion of the error. Read 2 H. P. C, pp. 175-177. 1 Chitty C. L., pp. 202-211. 1 Arch. Cr. Pr., pp. 261-264. 1 Whart. C. L., §§ 233-249. 1 Bish. C. P., §§ 669-689 b. § 493. Of the Description of the Venue. The ventie, or place of trial of the accused, must be in the same county where, the crime was committed, and this must appear on the face of the indictment. If it does not so appear, the indictment may be quashed for want of ju- risdiction, or a plea to the jurisdiction may be successfully interposed. It will also be invalid on demurrer, motion in arrest of judgment, or writ of error. If the mortal blow, in murder, is given in one county, and the victim dies in another, the venue must be laid either in the county where the blow was given, or in that where the death occurred. If goods are stolen in one county and carried into another, the venue may be laid in either. Read 2 H. P. C, pp. 180, 181. 1 Chitty C. L., pp. 177-202. 1 Arch. Cr. Pr., pp. 230-254, 279-282. 1 Whart. C. L., §§ 277-284. 1 Bish. C. P., §§ 45-76, 360-385. § 494. Of the Description of the Date of the Criminal Act. Some particular day, month, and year must be alleged as the date of each particular independent act, involved in the crime charged, and this date must show the act, as alleged, to have been committed within the time allowed CRIMINAL PROCEDURE. 319 by the statutes of limitation. "Where the crime is created by a statute, it must also be laid as committed after the en- actment of the statute. In burglary, the act must be alleged to have been at or between such hours as are within the night season. In murder, the day of the stroke and of the death must both be stated, and the death must appear to have been within a j'ear and a day after the nlortal blow. Read 2 H. P. C, pp. 177-179. ICMttyC. L., pp. 217-227. 1 Arch. Cr. Pr., pp. 275-278. 1 AVhart. C. L., §§ 261-276, 444 a-451. 1 Bish. C. P., §§ 386-414. § 495. Of the Description of the Person or Property Injured. "When the criminal act consists in some injury to prop- ertjf, the property injured must be particularly described. In arson and burglary, the house, the town in which it is situated, the name of its owner, and other particulars suf- ficient to distinguish it from every other house, mUst be clearly stated. In theft and robber^', the articles stolen must be described in detail, with their value and the name of the owner. If his name be not known, the indictment should so declare. The party injured by the crime must be described by his name, if known ; otherwise, as a persou unknown. Read 2 H. P. C, pp. 181-183. IChittyC.L., pp. 211-217. 1 Arch. Cr. Pr., pp. 265-274. 1 Whai-t. C. L., §§ 250-259. § 496. Of the Description of the Criminal Act. Tech- nical Words. Each and everj' act, necessary to constitute the crime, must be so particularly and accurately stated as to fix and 320 ELEMENTARY LAW. define, beyond any doubt, the exact charge of the state against the accused. If the crime is an offence at common law only, the common law forms of indictment should be followed. If it is created or modified hy statute, it is suffi- cient to allege it in the words of the statute, where such words contain a full and complete description of all the acts necessary to constitute the ofi'ence ; otherwise, in addi- tion to the words of the sta^te, such words must be em- ployed as do define and specify the precise nature of the crime. The statement of the acts must be positive and assei'tive, not laid with a whereas, or by way of recital, or argumentatively. Technical words, where necessary, must be used. In all crimes involving violence, or a breach of the peace, the act must be alleged to have been committed with force and arms. In felonies, it must be alleged to have been diOne feloniously ; in treason, trai- torously; \n\)\xr^wi:y,hurglariously ; in robbery, a^ainsi the will ; in piracy, piratically ; in murder, with malice afore- thought. Also in murder, it must be charged that the accused did kill and murder, and, in murder by wounding or beating, that he struck, and that the wound was mortal. In rape, it must be alleged that the accused ravished and carnally knew. In indictments for mayhem, it must be stated that the accused did maim, and in those for barratry, that he is a common barrator. For these words, and such others as, at common law or by statute, are made techni- cally descriptive of the whole crime or of any element therein, there are no substitutes, and an indictment, from which they are absent, cannot be sustained. Read 2 H. P. C, pp. 170-173, 183-193. 1 Chitty C. L., pp. 227-247, 275-292. 1 Arch. Cr. Pr., pp. 282-307. 1 Whart. C. L., §§285-413. 1 Bish. C. P., §§ 415-420, 499-668. CRIMINAL PROCEDURE. 321 § 497. Of the Joinder of Counts. Duplicity. Repug- nancy. Uncertainty. An indictment may contain one or more counts. Each count must be of itself a full and complete charge of crime, and be sufficient to sustain a verdict, for no number of defective counts can make a good indictment. Matter stated in one count ma}' by reference thereto, without re- stating it at length, be made a part of another count. Different counts for different offences may be joined in one indictment in cases of misdemeanor, though not in felony ; but two distinct offences cannot be charged in the same count. If two or more distinct offences are joined in one count, the count is bad for duplicity. If material allega- tions in a count contradict each other, the count is bad for repugnancy. If the allegations are in the disjunctive, or in any other way fail to specify precisely what crime was committed, the count is bad for uncertainty. Imma- terial allegations are surplusage, and inconsistencies therein do not vitiate the count. If one count in an indictment be good, a verdict on such count will be sustained, though other counts are defective. Read 2 H. P. C, pp. 173, 174. 1 Chitty C. L., pp. 169-174, 248-255. 1 Arch. Cr. Pr., pp. 308-314. 1 Whart. 0. L., §§ 382, 394, 896, 414-428. 3 Whart. C. L., §§ 3178-3181. 1 Bish. C. P., §§ 421^62, 477-498. § 498. Of the Joinder of Offenders and Offences. Different offenders may be joined in one indictment, where they are alleged to have been joint actors in the commis- sion of the crime. Different persons may also be prose- cuted for different offences, of the same nature, in the same 21 322 ELEMENTAEY LAW. indictment, but there can he no joinder of offenders where the crime is, in its nature, several. Kead2H. P. C, pp. 173, 174. 1 Chitty C. L., pp. 255, 267-271. 1 Arch. Cr. Pr., pp. 315-319. 1 Whart. C. L., §§ 429-435. 1 Bish. C. P., §§ 463-476. § 499. Of Process. Process is a warrant issued for the apprehension of the offender after prosecution, in cases where he has not al- ready been arrested and brought before the court. This warrant, and the arrest thereon, are subject to the same rules as those which govern a warrant and arrest before prosecution. Read 4 Bl. Comm., p. 318. 2 H. P. C, pp. 194-215. 1 Chitty C. L., pp. 337-346. 1 Arch. Cr. Pr., pp. 343-350. § 500. Of Arraignment. Standing Mute. Arraignment is the formal demand upon the accused, for his answer to the prosecution. A person accused of any crime, for which a corporal punishment maj' be inflicted, must be present in court during all such proceedings as are material to his case, and, if the charge against him be of felony, he must both appear and plead in person. Whenever he is to be arraigned and plead in person, he is called to the bar of the court, during its open session, the indictment is read to him, and he is required to state whether he is guilty or not guiltj- of the offence charged therein. If he makes no answer to this arraignment, he CRIMINAL PROCEDURE. 32S is- said to stand mute. This may occur either through his obstinacj', or because he is dumb, or is insane, or is igno- rant of the language in which the proceedings are con- ducted. When an accused stands mute through obstinacy, or is dumb, the court will order a plea of not guilty to be entered. When he is ignorant of the language, an inter- preter will be provided, to acquaint him of the charge, and inform the court of his answer. . When he appears to be insane, a jury will be appointed to trj' the question of his sanitj", and, if they find him to be of an unsound mind, he will be remanded for safe-keeping. Read 4 Bl. Comm., pp. 322-329. 2 II. P. C, pp. 216-225, 314-322. 1 Chitty C. L., pp. 411, 414-428. 1 Arch. Or. Pr., pp. 350-355. 1 Whait. C. L., §§ 530-532. 3 Whart. C. L., §§ 2991-3000, 3I53-3I55. 1 Bish. C. P., §§ 263-277, 728-733 b. 1 B. & H. L. C. C, pp. 438-439. § 501. Of Counsel. Guardian ad Litem. Motion to Quash. In some States, it is the practice, before suffering the accused to answer, to provide him with counsel, if he is him- self unable to procure any ; and where he is an infant, and without a guardian, to appoint for him a guardian ad litem. A motion to quash the indictment, if to be mac^e at all, should also be made before or at the time of the ar- raignment, though the court has power to allow such mot tion at any time before verdict. This motion is a request, addressed orally or in writing to the court, praying that no further proceedings be had upon the indictment. It may be based either upon matters apparent on the face of the 324 ELEMENTARY LAW. record, or upon extrinsic matters, if properly brought be- fore the court. Read 1 Chitfcy C. L., pp. 299-304, 407-411. 1 Arch. Cr. Pr., pp. 336-341. 1 Whart. C. L., §§ 518-524. 3 Whart. C. L., §§ 3004-3006. 1 Bish. C. P., §§ 114, 295-313, 758-774. § 502. Of the Plea of GuUty. A plea is the answer, made by the accused, to the charge contained in the indictment. Pleas are of five kinds : (1) Plea of Guilty ; (2) Plea to the Jurisdiction ; (3) Pleas in Abatement ; (4) Demurrer ; (5) Pleas in Bar. A plea of guilty is the formal acknowledgment of the accused, in open court, that the allegations of the indictment are true. It is not necessarily a confession of guilt ; it is merely an admission that he has done -what is legally and properly charged against him. If the indictment is bad, the admis- sion has no effect ; if it is good, the admission is a waiver of the trial, and the court may forthwith proceed to judg- ment. ^ Read 4 Bl. Coram., p. 329. 2 H. P. C, pp. 225, 226. 1 Chitty C. L., pp. 428-431, 434-437. 1 Arch. Cr. Pr., pp. 355, 356. 1 Whart. C. L., §§ 530-533. 1 Bish. C. P., §§ 734^757, 795, 802-804. § 503. Of Pleas to the Jurisdiction. A plea to the jurisdiction is an allegation that the court, before -which the case is pending, has no authority to hear and determine the same. When this want of jurisdiction appears on the face of the record, the indictment may be CRIMINAL PROCEDUEE. 325 quashed on motion. Where it depends upon extrinsic cir- cumstances, advantage can be taken of it only by plea. Eead 4 Bl. Comm., p. 333. 1 Chitty C. L., pp. 437-439. 1 Whart. C. L., §§ 534, 535. 1 Bish. C. P., § 794. § 504. Of Fleas in Abatement. A plea in abatement is an allegation that the proceedings are void, by reason of some defect or irregularity therein. This plea may be based either upon matters apparent on the record, or on extrinsic facts. Read 4 Bl. Comm., pp. 334, 335. 2 H. P. C, pp. 236-240. 1 Chitty C. L., pp. 444-451. 1 Arch. Cr. Pr., pp. 358-360. 1 Whart. C. L., §§ 536, 537. 1 Bish. C. P., §§ 791-793. 1 B. & H. L. C. C, pp. 272-276. § 505. Of Demurrers. A demurrer is an allegation that the acts, described in the indictment, do not constitute a crime. It may be based either upon matters of substance, or upon such formal matters as are essential to the sufficiency of the indictment. When a demurrer is sustained, a new indict- ment must be presented, or the accused must be discharged. If it is overruled, judgment will go against him as on a plea of guilty, except in cases of felony. Bead 4 Bl. Coram., p. 3-34. 1 Chitty C. L., pp. 439-443. 1 Arch. Or. Pr., pp. 380-383. 1 Whart. C. L., §§ 525-529. 1 Bish. C. P., §§ 775-786. 1 B. & H. L. C. C, pp. 276-295. 326 ELEMENTARY LAW. § 506. Of the Flea of Former Conviction. A plea in Jar is either an allegation that the averments of the indictment are untrue, or it is a denial that the accused is liable to punishment for the acts therein de- scribed. Pleas in bar a,re of four kinds : (1) Former Con- viction ; (2) Former Acquittal ; (3) Pardon ; (4) Not Guilty. The plea of former conviction (called also autrefois convict) is an allegation that the accused has already been con- victed of the offence charged in the indictment. It is a rule of law, that no person shall be put in jeopardy more than once for the same criminal act ; and when such jeopardy is evidenced by a conviction or acquittal, that conviction or acquittal ma^'' be pleaded in bar to any subsequent prose- cution for the same offence. This plea must set out the record of the former case, and must aver that the accused and the crime were the same as in the present indictment. It must also appear that the former conviction was regular, and was upon a sufficient indictment. The offences are the same, when the evidence, necessary to support the second indictment, would have been necessary and sufficient to procure a legal conviction on the first. But the offences must be the same in law as well as in act, for when the same act constitutes two or more distinct offences, a con- viction of one will not bar a prosecution for the others. A former conviction or acquittal, obtained by the fraudu- lent act of the accused, will not be a bar to another prosecution for the same offence. Read 4 Bl. Coram., p. 336. 2 H. P. C, pp. 251-255. 1 Chitty C. L., pp. 461-463. 1 Arch. Cr. Pr., pp. 371-374. 1 Whart. C. L., §§539-591. IBish. C. L., §§978-1070. 1 Bish. C. P., §§ 805-831. 1 B. & H. L. C. C, pp. 440-482. CRIMINAL PROCEDURE. 327 § 507. Of the Flea of Former Acquittal. A plea of former acquittal (called also autrefois acquit) is an allegation that the accused has already been acquitted of the particular offence charged in the indictment. This plea is based on the same principle, and governed by the same rules, as that of former conviction. Read 4 Bl. Comm., p. 335. 2 H. P. C, pp. 241-250. 1 Chitty C. L., pp. 452-461. 1 Arch. Or. Pr., pp. 360-371. 1 Whart. C. L., §§ 539-572. 1 Bish. C. P.,'§§ 805-S31. 1 B. & H. L. C. C, pp. 513-542. § 508. Of the Plea of Pardon. A plea of pardon is an allegation that the accused has been released, by competent authority, from liability to prosecution and punishment for the offence charged in the indictment. The power to pardon offences against the laws of the United States, except in cases of impeachment, is vested in the President. In most of the States, the governors have the same power in regard to offences against the laws of their respective States. A pardon is a matter of pure discretion, and may be either absolute or conditional. It takes effect only from the delivery of the charter of pardon to, and its acceptance by, the offender, and its operation is limited to the particular offence, which the charter describes. A plea of pardon must set out the charter, and make profert of the same, and the charter itself, duly verified, must be produced in court. Read 4 BI. Comm., p. 337. 1 Chitty C.L., pp. 463-470. 1 Arch. Cr. Pr., pp. 374-380. 1 Whart. C. L., §§ 591a-591 g. 1 Bish. C. L., §§ 897-926. 1 Bish. C. P., §§ 832-848. 328 ELEMENTARY LAW. § 509. Of the Plea of Not GuUty. A plea of not guilty denies all the allegations in the in- dictment, as well as the sufflciencj' of the alleged matters to constitute a crime. Under this plea, any excuse or jus- tification may be shown, or any other matter which does not admit the existence both of the criminal act and the criminal intent. Read 4 Bl. Coram., pp. 33S-341. 2 H.' P. C, pp. 255-259. IChitty C. L.,pp. 470, 471. 1 Whai-t. C. L., §§ 530, 592. IBish. C. P., §§794a-§01. § 510. Of Trial.' Petit-Jury. Challenges. A trial is a legal investigation of the issues created by the prosecution and the plea. No trial upon the merits can be had except under the plea of not guilt}', and this trial is usually conducted before a petit-jur}', acting under the direction, and with the assistance, of the court. A petit- jury is a body of men, legally selected from the people of the county, and duly impanelled and sworn to try and de- cide the issue, between the state and the accused. Before this jur}' are sworn, both the state and the accused have a right to object to such of them as, for sufficient reasons, ought not to participate in the trial of the case. These objections, like the similar objections made in civil causes, are called challenges, and are of the same classes, and are governed by the same general rules. Read 4 Bl. Comm., pp. 349-355. 2 H. P. C, pp. 260-275. 1 Chitty C. L., pp. 500-553. 1 Arch. Cr. Pr., pp. 509-527, 541-565. 3 Whart. C. L., §§ 3039-3152. 1 Bish. C. P., §§ 890-949 b, 1017-1045. CRIMINAL PROCEDURE. 329 § 511. Of Hvidence in Criminal Causes. When the jurj'^ have been sworn, the indictment and plea are read to them, and the trial begins. The proceed- ings, which constitute a trial in criminal causes, are : The Production of the Evidence ; The Arguments of Counsel ; The Charge of tlie Court ; and The Deliberations and Ver- dict of the Jnrj. The general rules, which govern the production of evidence, are the same in criminal as in civil eases. The principal special rules, applicable to criminal cases, are the following : 17ie state must prove affirmatively, and bej'ond a reason- able doubt, every material allegation in the indictment ; ITie testimony must be such as to exclude every reason- able hypothesis but that of the defendant's guilt ; The corpus delicti must be established by evidence other than the extrajudicial admissions of the accused ; Where a specific intent is alleged in the indictment, it must be proved as laid ; Circumstantial evidence is equally admissible, and may be equally' conclusive, with direct evidence ; In capital cases, the evidence must be that of two compe- tent witnesses or its equivalent ; In homicide, the declarations of he victim, made under the apprehension of impending death, are admissible to show the cause of the death, and the person of the slayer ; The voluntary confession of the accused, when made without fear or hope of favor, is competent evidence against him ; An accomplice is admissible as a witness against the ac- cused, though the ]my should be instructed not to convict on his uncorroborated testimony. The evidence of one accomplice is not corroborated by that of another ; Evidence of the character of the accused may be given in his behalf, but never against him, except in reply to such evidence first introduced in his favor ; 330 ELEMENTARY LAW. The accused is always presumed innocent till he is proved to be guilty, and if, upon the whole evidence, there is rea- sonable doubt of his guilt, he is^^entitled to an acquittal. Kead 4 Bl. Comm., pp. 355-359. 2 H. P. C, pp. 276-293. 1 Chitty C. L., pp. 554-631. 2 Russ. Cr., pp. 725-988. 1 Avch. Cr. Pr., pp. 385-508, 566-585. 1 Whart. C. L., §§ 592-827. 3 Whart. C. L., §§ 3009, 3009 a. 1 Bish. C. P., §§ 960-973, 1046-1262. 1 B. & H. L. C. C, pp. 295-362. 2B. & H. L. C. C.,pp. 18-43, 260-283,333-358, 393-408, 484-630. § 512. Of the Arguments of Counsel. The arguments of counsel take place in the order pre- scribed by statute, or by local usage. At the opening of the case, and before the production of any evidence, the counsel for the state may, and generally does, explain to the jury the nature of the charge, and the testimon}'' which he intends to bring forward to sustain it. The counsel for the accused, before introducing his evidence, usually explains, in the same manner, what he himself expects to prove. The remaining arguments consist of, and should be con- fined to, a discussion of the evidence and the law applicable thereunto. In some States, the counsel for the accused, and in others the counsel for the state, has the right to close. Read 1 Arch. Cr. Pr., pp. 584-587. 3 Whart. C. L., §§ 3007, 3008, 3010-3011 b. 1 Bish. C. P., §§ 974, 975. § 513. Of the Charge of the Judge. T/ie charge of the court to the jury consists of an expla- nation of the law governing the case, and of such a review CRIMmAL peoceduKe. 33i: of the evidence as may be necessary in connection there- with. If counsel on either side desire that particular prop- ositions should be stated, as law, by the court to the jury, it is their duty to inform the court of their desire in proper season. If any mistake is made by the court in stating the law to the jury, the attention of the court should be called thereto forthwith, and an exception noted. Kead 1 Chitty C. L., pp. 631, 6.32. 1 Arch. Cr. Pr., pp. 587-592. 3 Whart. C. L., §§ 3161-3164. 1 Bish. C. P., §§ 976-982. § 514. Of the Deliberations of the Jury. The Verfliot. The deliberations of the jury, upon the law and the evi- dence, are conducted in private, while they are under the charge, though not in the presence of, an officer of the court. If, after due consultation, they cannot agree upon a verdict, they may be discharged, and the accused re- manded for another trial. If they are in doubt upon any question of law or fact in the case, thej' may call upon the court for further instructions. "When they are all agreed, either for conviction or acquittal, thej- return into court, their names are called, and the foreman delivers their con- clusion of guilty or not guilty upon the matters alleged in the indictment. This conclusion is called the verdict, and when once pronounced bj"^ the foreman, ratified by the acquiescence of the other jurors, and duly recorded, it can- not be altered or amended, nor can anj- juror dissent there- from. When the jury cannot agree to a general verdict, as that of guilty or not guilty, they may render a partial ver- dict, convicting the accused on one count in the indict- ment, or on one part of a divisible count, and acquitting him as to the residue ; or they may render •a. speci'aZ verdict. 832 1 ELEMENTARY JAW. finding the facts of the case, and leaving the legal infer- ence from those facts to the decision of the court. Kead 4 Bl. Comm., pp. 361, 362. 2 H. P. C, pp. 293-313. 1 Chitty C. L., pp. 632-650. 1 Arch. Cr. Pr., pp. 593-609. 3 Whart. C. L., §§ 3165-3199. 1 Bish. C. P.^ §§ 962 a-1016. 1 B. & H. L. C. C, pp. 363-433, 482-512. § 515. Of Motion for a New Trial. After a verdict of conviction, and before judgment or sentence by the court, there are two proceedings of which the accused, if he has occasion, may avail himself. These are : Motion for a New Trial, and Motion in Ar- rest of Judgment. A motion for a new trial may be based upon any material irregularity in the course of the pro- ceedings, such as defects in summoning or impanelling , the jury, the misconduct of the jury, misrulings or misdi- rections of the court, the discovery of new and material evidence, the illegality of the verdict or its non-conform- itj' to the evidence, or the invalidity of the verdict itself. If this motion be granted, the accused will again be put upon his trial on the same indictment, but before another Read 4 Bl. Comm., p. 375. 1 Chitty C. L.,pp. 653-661. 1 Arch. Cr. Pr., pp. 610-670. 3 Whart. C. L., §§ 3220-3304 a. 1 Bish. C. P., §§ 1268-1281. 1 B. & H. L. U. C, pp. 554-599. § 516. Of Motion in Arrest of Judgment. A motion in arrest of judgment va&y be based upon any material defect which appears on the face of the record, CEIMINAL PROCEDURE. 333 and which makes the proceedings apparently erroneous, such as repugnancy or uncertainty in the indictment, or variance between the indictment and the verdict. If the judgment be arrested upon motion, all the proceedings will be set aside, and judgment of acquittal given ; but this judgment will be no bar to a subsequent prosecution. Kead 1 Chitty C. L., pp. 661-664. 1 Arch. Cr. Pr., pp. 671-674. 3 Whart. C. L., §§ 3200-3207. 1 Bish. C. P., §§ 1282-1288. § 517. Of Judgment. If neither of these motions is made, or having been made is denied, the court proceeds to judgment. Judg- ment is the order of the court, directing the Isind and meas- ure of punishment to be inflicted on the accused. This judgment must be pronounced in open court, and must be in conformity with the law, prescribing the punishment. The court has power over the judgment after it has been pronounced, and may respite or suspend its execution for any reasonable cause, as if the offender should become in- sane, or desire to apply for a reprieve or pardon. The court also has power to correct or change the judgment, at any time during the same term of court, and before the execution of the judgment has begun. Kead 4 Bl. Comm., pp. 875, 878. 2 H. P. C, pp. 391-406. 1 Chitty C. L., pp. 695-722. 1 Arch. Cr. Pr., pp. 674-710. 3 Whart. C. L., §§ 3395-3425 f. 1 Bish. C. L., §§ 927-977. 1 Bish. C. P., §§ 1289-1334. 334 ELEMENTARY 1;AW. § 518. Of Writ of Error. i There are two methods by which, even after judgment, the accused may be relieved against any error or mistake in the proceedings, whereby injury has been, or is about to be, inflicted on him. These are : By Reversing or Vacat- ing the Judgment, and By Pardon. A judgment may be reversed, on writ of error, for any mistake of law apparent on the face of the record. This writ is a matter of right. It does not lie until final judgment has been rendered, and does not reach preliminar3' matters, and such as are plead- able only in abatement. But errors, which would be fatal on demurrer, or on motion in arrest of judgment, are grounds of reversal upon writ of error. Read 4 Bl. Comm., pp. 391, 392. 1 Chitty C. L., pp. 747-754. 1 Arch. Cr. Pi-., pp. 717-727. 3 Whart. C. L., §§ .3208-3219 b. 1 Bish. C. P., §§ 1381-1374. 1 B. & H. L. C. C, pp. 599-612. § 519. Of Pardon. A petition for a pardon is addressed to the executive or other pardoning power, and may be based upon any mat- ters which render the execution of the judgment inexpe- dient or inequitable. Read 4B]. Comm., pp. 898-402. 1 Chitty C. L., pp. 762-777. 1 Arch. Cr. Pr., pp. 374-380. 1 Whart. C. L., §§ 591a-591g. 1 Bish. C. L., §§ 897-926. § 520. Of Execution. These different measures being untried or unsuccessful, the judgment is carried into effect by execution. Execu- CEIMINAL PEOCEDtTRE. 335 . tion is the infliction, upon the offender, of the punishment : imposed and ordered by the court. Where the punishment is ajine, the court directs, in the judgment, that the offender stand committed till the fine be paid; and thereupon, in default of paj-ment, a mittimus will issue, under which the offender will be imprisoned till he paj-s the flue, or is discharged by due course of law. When the punishment is imprisonment, he will be confined, under a similar mittimus, during the time specified in the judgment. In both these cases, the provisions of the mittimus must be strictly com- plied with. It must be executed only by the persons to whom it is directed, the confinement must be in the place and manner specified, and, at the end of the term of im- prisonment, the offender must be released. Any violation of these provisions will subject the person violating them to an action for false imprisonment. Read 4 Bl. Coram., p. 403. 2H. P. C, pp. 406-411. 1 Chitty C. L., pp. 779-814. 1 Arch. Cr. Pr., pp. 732-743. 1 Bish. C. P., §§ 1335-1339. § 521. Of Stay of Execution in Capital Cases on Ac- count of Pregnancy or Insanity. In capital cases, there are two causes which operate to delay or prevent execution. When a woman is sentenced to death while pregnant, or becomes pregnant after such sen- tence, the court by whom the sentence was pronounced, upon suggestion of the pregnancy, will cause an investiga- tion to be instituted, and, if the pregnancy be proved, will stay the execution of the sentence till the child be born. If, after the birth of one child, a second pregnancy occur, a further stay will not, according to the prevailing rule, be granted. Also, when a person under sentence of death 336 ELEMENTARY LAW. becomes insane, or where the fact of his insanity first becomes appaj'ent after sentence, the execution will be stayed till his recovery. Read 4 Bl. Comm., pp. 394-396. 2 H. P. C, pp. 412-414. IChittyC. L.,pp. 757-761. § 522. Of Execution in Capital Cases. Execution, in capital cases, is usuallj'' done by a warrant, issuing from the court in which the judgment was pro- nounced, and directed to the sheriff of the county, com- manding him to hang the offender, by the neck, tiU he be dead. This warrant will protect only those to whom it is directed, and will protect them onlj' when they strictly follow its commands. If an unauthorized person takes upon himself to execute a death-warrant, he will be guilty of murder. If the authorized officer executes it in an unau- thorized manner, as by changing the mode of death, he wiU be guilty of manslaughter, if not of murder. The war- rant must also be fully executed ; and if, through any ac- cident or mistake in the mode of hanging, the offender should revive, he must be hanged again and untU his life is actually extinct. Kead 4 Bl. Coram., pp. 403-406. 1 Chitty C. L., pp. 779-789. 1 Arch. Cr. Pr., pp. 732-737. END. INDEX. sscnoTT Abandonment, title by . 130 Abatement of nuisances . . .... ... 247 ouster by 221 pleas in 286 grounds for 286 judgment in . . 286 in criminal cases ... . . 504 Abduction of child 236 •ward 237 wife 238 remedy for '. 257 Abrogation of Contracts in equity ... ... 320 Accession, title by 163 Accessories after the fact 478 before the fact ... ... . . 477 Accomplices, evidence of '. ... 511 Accord and Satisfaction .... 249 Account, action of ... 265 between partners, in equity 324 stated 262 Accretion, title by 129 AoQUiTTAL, Former 507 Actions defined 253, 272 ex contractu 256 plaintiffs in , . 275 defendants in . . 277 ex delicto 256 plaintiffs in 276 defendants in 278 22 338 INDEX. SECTION Actions, mixed 255 of account 265 assumpsit 262 covenant 264 debt 263 detinue 261 disseisin 255 foreign attachment or garnishment .... 267 replevin 260 scire facias 266 trespass 257 on the case 258 trover 259 pending, a cause of abatement 286 personal 256 real 254 Adhering to the Public Enemy 401 Administrator, retainer of debt by 251 title of, to property of decedent . . . 161 •when defendant 277, 278 plaintifE 273,276 Adverse Possession, effect of 132, 133 Advowson defined , 46 Affray . . . . ' 458 Agency, contract of 179 Agents, classes of 207 Air, right to 57 Aliens defined 365 cannot commit treason 404 duty of, to State 368, 859, 370, 372 rights of, from State 380 Allegiance defined 361 right of citizen to change 363 Allodial Tenure 99 Alluvion 129 Amendment of pleadings in equity 337, 338, 340 law 286 Animals Fktim Naturae 155, 162 title to increase of 163 Animus Furandi defined 433 INDEX. 339 SECTIOK Annuity defined 54 Answer in equity 339 AppEAKANCE of parties in equity 336 law 280 Apprentices, rights and duties of 204 Akbitration and Award 250 Arguments of counsel 304 in criminal cases 512 Arms, Carrting, when a criine 456 Arraignment 500 Arrest, escape from 441 in civil cases 279 criminal cases 480-484 with warrant 480 without warrant 481 by hue and cry 482 by private person 481 Arbest of Judgment 308 in criminal cases 516 Arson defined 420 burning in 426 unlawfulness of 421 house in 422 ownership of 423 Asportation of chattels 226 remedy for .... 257, 259, 260 Assault defined 213 injunctions against 317 when actionable 213 Assembly, right of 459 unlawful, defined 455 Assets, marshalling of 323 Assignee in Bankruptcy, title of 136, 161 Assignment, deed of 142 Assumpsit, action of ■ 262 Attachment, writ of 279 service of 279 Attempt to commit crime 472 Attorney defined 210 at law, rights and duties of 211 340 INDEX. SECnOH Attorney in fact, rights and duties of 210 Auctioneer, rights and duties of 209 Audita Querela 310 Autrefois Acquit 507 Autrefois Convict 506 Avulsion 129 Award, requisites of 250 setting aside or enforcement of, in equity . . . 331 Bail in criminal cases 487 forfeiture of 487 rights of surety in 487 Bailment, contract of 178 Bail-Piece 487 Bankrupt, title to personal estate of 161 trustee of, when plaintiff 275 Bankruptcy, effect of, on real property of bankrupt . . 136 title of assignee in 136, 161 Bargain and Sale, deed of 142 Barratry 448 Battery defined 214 as a crime 467 of servant 239 wife 235 remedy for 257 Bawdy-Housk, keeping a 466 Benefice defined 46 presentation to 46 Bigamy 464 Bill in Equity, original and not original 334 parties to 334 Bill OF Exceptions 311 Bill of Exchange defined 182 how transferred 182 indorsement of .182 Blasphemy 465 Body defined 27 defence of 27 how protected by law 31 no duress by fear of injury to 27 INDEX. 341 SECTIOS Breach of Contract 228 the tortious element in ... . 228 Bribery 440 Bkokeks, rights and duties of . • 208 BuRDEx OF Proof 302 Burglary defined 404 breaking in 404 entering in 425 house in 426 ownership of 427 night season in 428 specific intent in 429 Burning defined 420 by owner 421, 423 tenant 423 unlawful, when 421 Capias defined 279 service of 279 Capias ad Satisfaciendum 812 service of 312 Carnal Knowledge defined 416 when lawful 417 rape 418 unlawful 417 Carrying Arms, when criminal 458 Carrying Away, in robbery 434 theft 430 Case, action on the 258 Cestui que Trust defined 328 Cestui que Vie defined 88 Challenge of Jury 290 in criminal cases 510 to the array 290 to the polls 290 Challenging 457 Champerty 448 Change, act done by, no crime 391 Chancery, power of, to pass title to land 136 Character, evidence of in criminal cases 511 342 INDEX. SECTIOS Charge of Judge 304 error in 304 ia criminal cases 513 Chattels defined . . . ; 42 absolute estates in 154 estates in common in 150 joint tenancy in 156 remainder in 156 severalty in 156 title to by accession 163 confusion 163 contract 168 creation 164 forfeitm-e 158 gift 165 judicial decree .... 161 marriage 160 occupancy 162 prerogative 157 succession 159 testament 166 qualified estates in 154, 155 real 69 real and personal 152 remedies for injuries to 257-261 Cheating 462 Child, abduction of 236 illegitimate defined 192 duties of parents to 195 legitimate defined 192 duties of parents to 194 cease, when . . . 196 rights of parents over 193 marriage of, vj'hen prevented by injunction . . . 318 ■when protected from parents by injunction . . . 318 Choses in Action defined 153 equitable owner of, how protected . 324 founded on contract 228 not subject to theft at common law . 431 Qhoses in Possession defined 153 INDEX. 343 _, „ __ swjnoK Circuit Court of United States 355 Citizens, duties of, to state 367-372 of United States, native-born 362 naturalized 363 rights of, in different States . 366 rights of, from state 373-3S1 Clerk of Court, duties of 273 Code-Pleading 288 Commitment 486 commodatum 178 Common defined 48 disturbance of 225 kinds of 48 nuisance to 223 Common Law defined , 4 of individual States 5 Louisiana 5 United States 5 Competency of Witnesses 298 Compounding Informations 443 Compulsion, act done by, no crime 393 Condition, estates upon 98-104 express and implied 101 precedent and subsequent 102 Conditional Fee defined 87 Conditional Limitation defined 103 Confession and Avoidance, plea of 283 Confessions of crime 511 Confidential Communications 299 Confirmation, deed of 142 Confusion, title by 163 Congress, divisions and powers of 351 Consanguinity, collateral and lineal 124 how computed 124 Consideration op Contracts 170 Conspiracy defined 230 as a crime 449 remedy for 258 Construction of contracts in equity ....... 322 deeds 145 344 INDEX. ssonon CoNSTKUcxioN of statutes 14 wills 130 written instruments 295 CoNTKACTS, abrogation of, in equity 320 between husband and wife 189 breach of 228 damage implied from 228 remedies for . 262-264 choses in action founded on 228 consideration of 170 consist in meeting of minds 172 conspiracy in regard to ... . . . 230 construction of 176 correction of mistakes in by equity . . . 321 executed and executory 175 express and implied ........ 174 fraud in 229 relieved by equity . . . 315, 320, 823 implied, classes of 262 of account stated 262 fidelity and skill 282 money had and received . . . 262 laid out and expended . . 262 lent and advanced . . . 262 quantum meruit 262 valebat 262 interpretation of, in equity 322 of agency 179 bailment 178 debt 184 guaranty and suretyship 183 indorsement 182 insurance 181 partnership 180 sale 177 warranty 184 oral and written 173 parties to 169 infants 169 insane persons 169 INDEX. 845 SECTTOW CosTEACTS, parties to, married women 169, 189 wards under guardianship . . . 1C9 remedy for breach of, governed by lex fori . 178 requisites of 108 simple and special 173 specific performance of 319 subject-matter of 171 title by 168 validity of, governed by lex loci 176 void for duress 26, 34 CONTKIBUTOEY I^EGLIGEXCE, effect of 243 CoNVEUSiON defined 226 remedy for 259 Conviction, Formek 506 coparcenarv 121 Copy, when admissible in evidence 295 COPYIUGHT defined 164 remedy for infringement of 316 Coram Nox Judice 358 CoRODY defined 63 Corporation defined 18 aggregate and sole 19 pulDlic and private 20 title of, to property 159 winding up of 327 Costs, judgment for 309 title to 161 Counsel, appointment of, for accused 501 arguments of 304 in criminal cases 512 when not allowed to testify 299 Counterfeiting *"" Counts, several in an indictment 497 Courts defined ^'~ jurisdiction of 284 want of 284 of equity ^P individual States 357 law 272 United States 354-3o6 346 INDEX. SECTION CouKTS, oflBcers of 273 parts of 274 when may lawfully act 274 Covenant, action of 264 to stand seised to uses 142 Creation, title by 164 Crimen L^s^ Majestatis 398 Crimes defined 384 against persons 406-419, 467, 468 property 420-436, 469-471 public health 463 justice 439-454 peace 455-461 policy 464^66 trade 462 degrees of 394^97 elements of 385 how created . . 383 identity of 506 of drunkards 387 who may commit 388 Criminal Act defined 385 how described in indictment 496 Criminal Actors, classes of 474 how described in indictment . . . 492 presence in court of 500 Criminal Conversation defined 234 remedy for 257 Criminal Intent defined 385 how presumed and rebutted . . . 386-393 Criminal Law, why not uniform 383 Criminal Procedure 479 Cross-Examination of witnesses 301 Custom, certain 6 compulsory 6 consistent with other customs 6 continued 6 immemorial 6 peaceable 6 reasonable 6 INDEX. 347 8E0TI0N Ctjstom, when recognized as law ......... 6 CusTOMAKY Law defined 4 Damage to choses in possession, direct and indirect. . . 227 remedies for . . 257, 258 Damage-Feasant, distress for cattle 248 Damages, hearing in 309 liquidated and unliquidated 264 remission of ' 309 title to 161 Damnum absque Injuria 212 Daughter, seduction of 241 Day-Laborer defined 206 Death, presumption of, from absence 464 Debt, action of 268 contract of 184 of wife, husband responsible for 189 retainer of, by administrator or executor .... 251 Declaration defined 287 pleadings after 287 requisites of 287 Declarations accompanying an act 300 against interest 300 concerning pedigree 300 in the course of business 300 when admissible in evidence 300 Decree in equity 342 how enforced 342 pro confesso 336 Deeds, construction of 145 delivery of 147 execution and recording of 140, 146 forms of, poll and indenture 141 in the United States 143 kinds of 142 original and derivative 142 parts of 144 reading of, by grantor 146 requisites of 140 take effect when 147 848 INDEX. SECTTOir De Facto officers 359 Default 309 judgment by 280 Defeasance, deed of 142 Defendant defined 253 appearance of 280 in actions ex contractu 277 delicto 278 incapacity of ^ effect of 286 joinder of 277, 278 mi^idescription of, effect of 286 misjoinder of, effect of 286 nonjoinder of, effect of ; . 286 Definition defined 7 Deforcement, ouster by 221 De Juke officers 359 Deliveuy, necessaiy to gift 165 of deed, effect of 147 Deihukrer in equity ■..,..'.... 337 law 283 Deposition, how taken 296 Depositum defined 178 Descent, rule of 126 title by 123 Detainer, Forcible, defined 460 Detention of chattels, how and by whom committed . . 226 remedy for 259, 260, 261 Detinue, action of 261 execution in 312 Devise, subjects of 151 talies effect when 151 title by 138 Dignity defined 51 Disagreement of Jury 305 Discontinuance, ouster by 221 Discovery in equity 330 Diseases, spreading of infectious 463 Disorderly House, keeping a 466 Disseisin defined 220 action of 255 INDEX. 349 SECTIOM Disseisin, effect of 71 220 how and by whom committed 220 Distress of cattle taken damage feasant 248 remedy by 248 unlawful, remedy for 260 District Court of the United States 356 Disturbance of incorporeal hereditaments 225 remedy for . 258 Disturbing Meetings 459 Divorce a mensa et thoro 188 a vinculo IBS effect of, on dower and curtesy ... 92 Drunkenness no excuse for crime 387 public 4G6 when rebuts specific intent 387 Duelling defined 457 killing in, is murder 457 Duplicity in indictment defined 497 Dying Declarations, when evidence 800 Easements, classes of 57 Eaves-Duopping 466 Ejectment, action of .... 255 execution in 312 Elegit, execution by ... 312 service of 312 Elements, title to 162 Embezzlement 462 Embracery 450 Eminent Domain defined 137 in aid of railroads, &o 137 right of 137 title by 137, 371 Entering, in burglary, what is 425 Entry defined 84, 246 effect of 246 riglit of, tolled by descent 246 when necessary 84 Equitable Remedies, classes of 313 Equity defined 21 '350 INDEX. SEonoir Equity, amendments of pleadings in .... 337, 338, 340 answer in 339 appearance of parties in 336 bill in 334 parties to 334 bill of review in 343 decree in 342 how enforced 342 pro confesso in 333 demurrer in 337 evidence in 341 general relief in 333 plea in 338 power of, to transfer estates in real property . . 136 province of 21 subpoena in 335 service of 335 trials in 341 Equity op Redemption 325 Error, Writ op 311, 518 Escape 441 Escheat, title by 128 Estate defined 60 Estates in personal property 154 absolute and qualified . 154, 155 tenancy of 156 tenure of 156 time of 156 in real property, attributes of 64 absolute and conditional . . . 100 alienation of 61 at will 95 by curtesy 91 by sufferance 97 concurrent 60 conditional, in the United States 99 consist of what 60 executory .... 106, 107, 112 for life 85,88 how created .... 89 INDEX 351 6E0T1OH Estates in real property, for life, incidents of ... . 93 for years 94 freehold 60, 68, 69 effect of failure of . . 73 in future 76 how created . 76 presumed to exist some- where 73 superior to less than freehold .... 69 from year to year 96 how determined 96 when implied 96 how owned and transmitted . 61, 82 in common 113, 120 creation of . . . 121 destruction of . . 122 incidents of . . . 122 coparcenary 121 dower 92 how barred .... 92 expectancy 105 fee 85 simple 86 tail' 87 after possibility of is- sue extinct .... 90 joint-tenancy 113 alienation of . 118 destruction of . 119 incidents of . 117 survivorship in 116 unities in . . 115 possession 105 remainder 106 reversion 106 severalty 113, 114 legal and equitable .... 63 less than freehold, possession es- sential to 83 852 IXDEX. Estates in real property, number and connection of ten- ants in 113-122 on failure of owners go w of inheritance . . . real and personal . . rules of descent of . . tenure of, feudal and allodial 98, 99 time of enjoyment of . title to by abandonment accretion descent . . devise . . eminent domain escheat . . execution . forfeiture . grant . . judicial decree marriage possession . prescription pi'ivate grant public grant purchase transfer of ... . upon condition . . . express and im- plied . . precedent and subsequent . 102 what devisable 151 whence originally derived . . 128 EsTOPPEi-, defence of 243 Evidence defined 291 admissibility of, how determined 303 hearsay 300 in criminal cases 511 equity 341 material 2S2, 439 oral and written 294 here 128 . . 85 C2, 65, 69 . . 126 105-112 . 130 . 129 . 123 138, 148 . 137 . 128 . 135 . 131 . 138 . 136 . 134 . 133 . 132 . 140 . 139 123, 127 . 61 100-104 101 INDEX. 353 sEcriox Evidence, order of 302 perpetuation of 329 primary and secondary 095 relevant 292 taken in former trial, when admissible . . . 300 Examination of Witness 301 Exceptions, Bill of . . . 311 Exchange, deed of . . . 142 Execution defined . . 253 alias 312 in capital cases 522 how stayed .... . 521 criminal cases 520 levy of . . 312 on land . 135 return of 312 stay of 310 title by 135 what subject to 135 Executor, action by 275, 276 title of to land 136 when defendant 277, 278 Executory Devises 112 Executory Interests lOS, 112 how distinguished from reversions and remainders 107 Exhibitions, Immoral . 466 Exposure op Person in public 466 Extortion 453 Extradition of Criminals 484 Factors, rights and duties of 208 Facts, how proved 291 judicially noticed . . 293 material 292 relevant 292 •what admissible in evidence 292 False Imprisonment defined 219 remedy for 257 False Pretences 462 23 364 INDEX. sEcnoif Falsifying Recoeds 444 Fedeual Law defined 3 Fee defined 85 simple, creation and alienation of 86 includes all otlier estates 86 tail, character and incidents of 87 Fees, illegal taking of 453 Felony defined 395 against persons 406-419 property 420-436 at common law, and by statute 396 misprision of 454 principal and accessory in 474-478 Feottment, deed of 142 Feudal Tkncres 98 Fidelity and Skill, implied contract for 202 FiEiu Facias, service of ... . 312 Fines, implied contract to pay 262 Fines and Penalties, title to 158 Fixtures defined 43 FonciiJLK Entry and Detainer 4G0 Foreclosure of mortgages ... 325 effect of . . .... 136 Foreign Attachment defined . . .... 267 service of 279 Forfeiture, relief against in equity 323 title by 131, 158 Forgery 469 FoRJiKii Acquittal 507 FoRJiF.R Conviction . . 506 Franchise defined .... 52 disturbauoo of 225 remedy for 258 Fraud defined 315 injunctions against 315 remedy for 258, 32-3 ^'hen a civil injuiy 229 implied in equity .315 Fraudulent Conveyances set aside in equity .... 332 Freeuolu defined 69 INDEX. 355 SHmoir Gaming-House, keeping a 468 Gaexishment defined 267 process of 279 service of 279 General Occupant defined 88 Gift causa mortis, defined 165 delivery in 165 deed of 142 inter vivos, defined 105 irrevocable 1G5 of chose in action how made 1G5 title by 165 Goods, how taken in execution 312 GOVEUN'OUS OF THE INDIVIDUAL STATES, pOWerS of . . 352 GiiAXD-JuRY, composition and duties of 489 GuANT, deed of 142 Grantor presumed to know contents of deed .... 146 Guaranty, contract of 183 Guardian defined ... 197 ad litem 199 by appointment. ... ... . . 199 by nature 198 by whom appointed and controlled .... 199 of the estate, rights and duties of . . . 200, 201 person, rights and duties of ... . 200 testamentary 199 title of to personal property of ward . . . 161 real property of ward 136 Guardian and Ward, account between 265 relation of, ceases when .... 202 Guardianship, persons under, when unable to contract . 169 Habeas Corpus, writ of 271 Habere Facias, process of 312 service of 312 Health, right to ■ 28 crimes against 463 how protected by law 32 injuries to 215 Hearing in Damages 309 366 INDEX. STffnov Hearsay Evidence, when admissible 300 Hereditaments defined 41 incorporeal 45 classes of 45 effect of non-user of . . . 130 in the United States ... 56 High-Seas defined 471 Highway, obstruction of 466 Hired Servants, rights and duties of 205 Homicide from cruel or wanton act . '. 410 felony 410 lawful act 415 misdemeanor 415 negligence 415 in actual combat 414 duel is murder 457 upon provocation 413 sought by slayer 413 when excusable or justifiable 409 with dangerous weapons 410 without provocation 410 Honesty presumed in contracting parties 229 House in arson 422 burglary 426 Hue and Cry 482 Husband, defence and support of wife by, when forfeited 191 liability of, for debts and torts of wife . . . 189 power of, to contract with wife 189 remedy of, for injury to wife 189 rights of , over person of wife 190 over property of wife ...... 160 when defendant 277, 278 plaintiff 275,276 Husband and Wipe, contracts between 189, 326 relation of, how created .... 185 dissolved . . . 188 rights of, at law and in equity 189-191, 326 when competent witnesses . . . 299 incompetent witnesses . . 299 INDEX. 357 SECnOH Ignorance of fact rebuts criminal intent 390 law no excuse for crime 390 Illegal Fees, taking of 453 Ill-Fa5ie, keeping house of . . 466 Imprisonment defined 34, 219 . duress by 84 resistance to, when lawful 34 ■when unlawful 219 In Being, who is 407 In Pari Delicto 243 In the Peace, who is 407 Indenture, deed of 141 Indictment defined 489 requisites of 491 Indorsement, contract of 182 Infant unable to commit crime, when 388 contract, when 169 unborn, killing of, not murder 407 rights of 17 Information defined 488 Infringement of patents, copy-rights, and trade-marks, injunctions against 316 Injunctions against assault 317 fraud 315 infringement of patents .... 316 irreparable injury 316 marriage of child or ward .... 318 nuisance 316, 317 parents, tyranny of 318 trespass 316 ex parte 314 perpetual and temporary 314 prohibitory and mandatory 313 to protect personal security 317 relative rights 318 Injuria defined 212 Injuria sine Damno 212 Injuries from an illegal transaction 243 joint act of injured and injurer .... 243 to chattels, direct and consequential .... 227 358 INDEX. sficiioir Injukies to chattels, remedies for 257-261 with consent of injured party 243 Innocence, presumption of 511 Inquest of Office 128 Insane Person cannot commit crime 389 contract 169 Insolvency, title of trustee in 136, 161 Insurance, contract of 181 five and marine 181 life and accident 181 Intent, criminal 385 specific 386 how proved and rebutted 386 Intent to Steal defined 433 International Law defined 2 Interpleader in equity 324 Intestate Estate, title to 159, 161 Intrusion, ouster by 221 Inventions defined 164 title to 164 how protected 164, 316 Irrf.parable In.iury, injunction against 316 Islands in rivers belong to whom 129 Issue defined 283 trial of 289 Jeopardy, Former . 506 Joinder of Offendf.rs 498 Joint-Tenancy, estates in 115-'119 rights and duties of tenants in ... . 117 Judge, charge of 304, 513 error in 304 duties of 274 Judgment defined 253 arrest of 308, 516 final 309 implied contract to pay 262 interlocutory 309 non obstante veredicto . 308 of law, how aided in equity 332 INDEX. 359 SECTIOX Jddgment on confession 309 default 280, 309 demLirrer 309 nihil dicit 309 non-suit . 309 .verdict 309 reversal of 311, 518 Judicial Decisions 7 Judicial Decree, title by 133, 161 Judicial Fuhctioxs, how exercised 338 Judicial Notice, of what taken . 293 Jurisdiction of courts, how detemiined 284 objection to, how taken .... 285 plea to 285 want of, how waived .... 284 Jurisdiction of United States Courts . . . 354-356 Jury defined 290, 510 advice of court to 305, 514 attempt to corrupt 450 challenges of 290, 510 deliberations of 305, 514 disagreement of 305, 514 duties of 273, 305 in finding verdict 303 how summoned . . 290 misconduct of 307 verdict of 306 in criminal cases 514 Jus defined . . 242 KiDNArpiNG .... 468 Killing defined 408 when excusable or justifiable 409 Kindred of half blood and whole blood 125 Land defined 41, 44 how granted 140 taken in execution 135, 312 unsold, owner of 139 Larceny defined • 430 860 INDEX. SEOnOH Larceny, carrying away in 430 property in 431 ownership of 432 specific intent in 433 taking in 430 Law defined 1 common 4 in Louisiana 5 the courts of the United States ... 5 the individual States 5 customary 4 federal 3 international 2 interpretation of . . 13 maritime 22 municipal 2 object of . 15 State 3 unwritten f . . . . 4 development of 6 written / . . . . 4 of the United States and individual States . 8 Leading Questions, when permitted 301 Lease defined 94 deed of 142 LEGAcr defined 166 abatement of, to pay debts 166 lapsed 166 when payable ] 66 Legal Remedies 242-271 Legislatures of States, divisions and powers of . . 351 Levari Facias, writ of 312 service of 312 Levying War 400 Lewdness, Public 466 Lex Fori 176 Lex Loci Contractus 176 Libel defined 216 remedy for 258 Liberty, Personal, right of 34 INDEX 361 SECriOH Liberty, Personal, protection of, by law 36 Life, begins and ends when 17 how protected by law 31 right to 25 Life Estates, creation and character of 88, 89 Light, right to 57 Limbs defined 26 defence of 26 duress by fear of loss of 26 how protected by law 31 Limitation, statute of 243 Literary Property defined 164 how protected by law .... 164, 316 title to 164 Livery axd Grant 82 Livery of Seisin 75, 76 Locatio defined 178 Lord and Tenant, feudal relation of 68 Louisiana, common law of 5 Lucri Causa defined 433 Maintenance 447 Malfeasance defined 212 Malice in libel 216 malicious prosecution 218 murder 410 implied and express 410 presumed 411 slander 217 Malicious Mischief 470 Malicious Prosecution 218 remedy for 258 Mandamus, writ of 268 Mandatory Injunction 313 Mandatum defined 178 Manors, ancient, described 66 Marriage, contract of 185 consideration of 186 effect of, on husband and wife . . 189 property of parties . 160 362 INDEX. azcnoN MARniAGE, contract of, form of J.87 how dissolved 188 parties to 186 subject-matter of 186 title by 131, 160 who may contract in 186 Married Women, contracts of, in equity 320 law 189 separate maintenance of 326 property of 326 Marshalling Assets 323 Master defined 203 \ liability of, for servant 205 rights and duties of . . . 205 Master and Apprentice, relation of 204 Master and Servant, relation of 203-211 when implied . . . 241 Material Facts 292 Maxims 7 Mayhem defined 214 Meetings, Disturbing 459 Meetings, right of the people to hold 459 Menace defined 213 when actionable . . 213 Menials defined . . 206 Military Forces, by whom controlled 352 Military Service, liability of citizen to 35, 370 Misdemeanor defined 397 Misfeasance defined 212 Misfortune, act done by, not a crime 391 Misprision of felony 454 treason 405 Mistake in contract, correction of, in equity . . . 321 Mittimus 486 Mixed Actions 255 Money had and received . 262 laid out and expended 262 lent and advanced . 262 Mortgage defined 102 foreclosure of , . 325 INDEX. 363 SECTION Mortgage, foreclosure of, effect of 13q redemption of 305 Mortmain, acts of r-n Moxiox in arrest of judgment g08 in criminal cases .... 516 e"°r .311 for new trial , goy in criminal cases 5I5 to erase 285 q^ash 501 Municipal Law defined 2 MuKDiiu defined .... 4Q0 degrees of 410 killing in 408 malice in 410 Naturalization, mode and effect of 364 Necessaries defined I94 right of third persons to supply . . . . 194 Necessity, act done by, no crime 392 what is 392 Neglect of plaintiff to pursue remedy, effect of ... 243 Negligence defined 212 contributoi-y . . 243 oflScial 451 New Trial, motion for 307 in criminal cases 515 Night-Season in burglary 428 Nihil Digit, judgment of . . 309 Nonfeasance defined 212 Nonsuit, judgment on 309 Non-User of Easement, effect of . . . . 130 Notes and Bonds, when satisfied, how recovered in equity 323 Notice to Quit . 95, 96 Nuisance, abatement of 247 continuance of, who liable for 223 injunctions against 316, 317 public 466 remedy for 258 364 INDEX. Bscnon Nuisance to health "215 incorporeal hereditaments 223 land 223 Nuncupative Will defined 166 Oath, who is under 439 Obedience of subject to state 369 Obstructing Peocess 445 Occupancy, title by 162 Offenders, joinder of 498 Office defined 50 Office-Found 128 Officers de facto and de jure 359 duty of, in making aiTests 480-483 when not allowed to testify 299 Official Negligence 451 Oppression 452 Oral Evidence 294 how produced 296 OvERnANGiNG BuiLDiNGS a uuisanoe 223 Pardon, petition for 519 plea of 508 power of, where lodged 508 Parent, duties of, to illegitimate child 195 legitimate child 194 rights of, over legitimate child . . 193 rights and duties of, cease when . 196 Partition, deed of 142 of estates in common 122 joint-tenancy 119 Partners, account in equity 324 remedies between 265 Partnership, contract of 180 winding up of, by receiver 827 Party-Wall, easement of 67 Patent for invention 164 lands 139 injunction against infringement of 316 Paupers, support of, by relatives 19g INDEX. 365 SECTIOlf Pedigree, declaration concerning, admissible .... 300 Penalties and Fines, title to 158 Penalties and Fokfeitukes, relief against in equity . 323 Pension defined 53 Per autek Vie, tenant 88 Per Verba de Presenti 187 Perjdry 439 subornation of 439 Perpetuation of Etidence 329 Perpetuities, rule against 112 Person, crimes against the 408-419, 407, 468 injured by crime, how described in indictment . 495 of the owner in robbery 435 of sound memory and discretion 406 remedy for in jm-y to 257,258 Personal Actions 256 Personal Liberty, right of 34-36 how protected by law ... 36 subject to law ... 35 Personal Property defined 42 why so called 42 Personal Security, right of 25-33 subject to law 30 Persons, artificial 18 natural 17 Petit-Jury 290,510 PiGNUS defined 178 Piracy 471 Plaintiff defined 253 Plaintiffs in actions ex contractu 275 delicto 276 incapacity of, effect of 286 joinder of, in actions ex contractu .... 275 delicto 276 misdescription of, effect of 288 misjoinder of, effect of 288 nonjoinder of, effect of 286 surviving, actions by 275, 278 Plea in abatement 286 in criminal cases 504 366 INDEX. SEcnos Plea in bar '. 287 in criminal cases 503 equity 338 of former acquittal 507 conviction 506 guilty 502 not guilty 509 pardon . 508 to the jurisdiction 285 in criminal cases 503 Pleadikgs defined 253 classes of 282 object and rules of 281 order of 282 Policy, Public, crimes against 464-466 PossESSiox, Advekse, effect of 132, 133 nature of 132, 133 prima facie ownership .... 133 Prerogative, title by 157 Prehogative AViiiTS 268 Prescriptiox, title by 132 ■what possession necessarj' to . . 132 Presexcb, actual and constructive 476 of criminal in court £00 owner in robbery 435 Presentment defined 4£0 Presidknt of the United States, powers of ... . 8o2 Presumptions 803 Pretended Titles, sale of 448 Primary Evidence 295 Principal compelled to indemnify surely 323 when bound by acts of- agent 205 Principal AND Agent, account between 265 Principals and Accessories 474, 478 Prior Action Pending, effect of 286 Prison-Breach 441 Private Grant, title by 140 Private Wrongs defined 212 Privity of Estate 61 Probable Cause defined 218 INDEX. 367 SECTIOIf Pkocess, civil, defined 253,279 cnniiiial 499 defects in, effect of 280 final 279 mesne 279 original 279 return of 280 service of 279 defects in, effect of 286 Profanity . . 465 Pkohibitiox, writ of . . . 269 Promissory Note defined ... 182 indorsement of 182 transfer of 182 Proof, Burden of 302 Property, abandoned, title to 157, 162 attached, ownership of 482 constructed of another's materials, title to . . 163 corporeal 39 transfer of 39 created and transferred how 82 crimes against 420-436,409,471 defined 38 in larceny, what is 431 robbery, what is 434 incorporeal 40 injury to 223 remedy for 258 transfer of 40 trespass cannot be committed on . 257 injured by crime, how described in indictment 495 mobility of, legal not physical 43 ownership of, in theft 432 personal 42 corporeal 53 estates in, absolute and qualified 154, 155 for life and in fee . . . 156 in remainder and reversion 156 in severalty, joint-tenancy, and iu common . . . 156 368 INDEX. Propeett, personal, estates in, title to, by accession . SSCTIOK . 163 confusion . . 163 contract . . . 168 creation . . . 164 forfeiture . 1.58 gift . . . . 165 judicial decree . 161 marriage . 160 occupancy . . 162 prerogative . . 157 succession . 159 testament . 166 incorporeal 59 real, comoreal . . 44 estates in, at will 95 by sufferance 97 for life 88 for years 94 from year to year . . . 96 in common 120 fee simple 86 tail 87 joint-tenancy .... 115 remainder 10 9,110 reversion 108 severalty 114 title to, by abandonment . 130 accretion . . . 129 descent . . . . 123 devise . . . . 138 eminent domain 137 escheat . . . . 128 execution . . 135 forfeiture . . . 131 judicial decree . . 136 marriage . . . 134 possession . . . 133 prescription . . . 132 private grant . . 140 public grant . . 139 INDEX. 369 SECTIOM Property, real, estates in, title to, by purchase . . . . 127 right of 37 special 155 subject to theft, what is 431 taken in war, title to 157 thrown away by thief, title to 157 Prosecution in crime 488 malicious 218 Provisions, sale of unwholesome 463 Public defined 466 Public Enemt defined 401 Public Grant, title by 139 Public Place defined 458 Public Rights defined 344 Public Wrongs defined 382, 384 Publication in libel 216 Purchase, title by 127 Putting in Fear, in robbery, defined 436 Qualified Property 154, 155 Quantum Meruit 262 Quantum Valebat 262 Quash, motion to 501 Quo Warranto, writ of 270 Rape defined 416 emission in 416 penetration in 416 want of consent in 418 who cannot consent 418 woman a witness in 419 Eeal Actions 254 Reasonable Creature 407 Rebutter ^°[ Recaption, right of ,24o Receivers, appointment of, in equity 327 Receiving Stolen Goods ■ .... 442 Records, Falsifying 444 Redemption of Mortgage 325 Re-examination of Witness 301 / 24 370 mDEK. sscnoN Kejoindeb 287 Relative RiaHTS, how injured ,. . . . .231,232 Release, deed of 142 Relevant Facts 292 Remaindek defined , . . 106, 107 contingent 110, 111 vested 109, 111 Remedies, classes of 244 equitable 313 Remeditjm defined .... 242 Remedy for every wrong 242 when refused by law 243 Remitter, remedy by 252 Remittitur 309 Rent defined . 65 distress for . . 248 Repleader . 308 Replevin, action, of 260 execution in 312 Replication 287 in equity 340 Reprieve, power of 521 Repugnancy in indictment 497 Reputation, right to 29 how protected by law 33 Requisition of fugitive criminals 484 Rescue 441 Retainer of servant 238 remedy for 258 remedy by 251 Return of execution . . 312 process 280 Return-Day 279 Reversal op Judgment 3U effect of 311 in criminal oases . . 518 Reversion defined 106-108 Review, hill of 343 Right, absolute, defined 23 of personal liberty defined 34 INDEX. 371 SECTION Eight of personal liberty, how protected by law . . . 36 subject to law 35 property defined 37 security defined 25 how protected by law . . 81-33 subject to law 30 private, defined 16 public, defined 16 relative, defined 24 remedy for every violation of 242 KiOT 455 River-Bed, belongs to whom 129 EoBBERY defined 434 person of owner in 435 presence of owner in 435 theft in 434 violence and putting in fear in 436 KouT 455 Sale, contract of 177 Schoolmaster, rights of, over pupil 193 Scire Facias, action of 266 Secokdary Evidence 295 Seduction of daughter 241 servant 240 remedy for 257 Seisin defined 70, 82 in fact and in law 74 livery of 75 pending concurrent freeholds 72 estates less than freehold . ■ . . . 71, 83 presumption of 73 when occupation is ^ . . 71 Seisin, where found on failure of existing freehold ... 73 Self-defence 244 Servant defined 203 battery of 239 remedy for 257 relation of, when implied as to parents, guar- dians, &o 241 372 INDEX. SZOTIOH Servant, retainer of 238 remedy for 258 rights and duties of 205 seduction of 240 remedy for 257 Services, Feudal 67 Sheriff, duties of 273 Slander defined 217 malice in 217 remedy for 258 Solicitation 473 Solicitor 836 Special Occupant 88 Special Property 155 in chattels, how lost 155 Special Contract 173 Specific Intent defined 386 how proved and rebutted 386 in burglary 429 theft 433 Specific Performance of contracts 319 Standing Mute 500 State defined ' 345 protection of subject by 374-376 rights of, over alien 368-372 citizen 368-372 personal liberty 35 security 30 private property 157 vindication of subject by . . . 377-381 wrongs of, against subject of foreign state 379 States or the American Union, executive functions of 352 how dissolved . . 347 organized . . 346 judicial functions of 354 law of 3 legislative functions of 351 INDEX. 373 SECTION States op the Ameeican Union, vindication of sub- jects by .... 381 treason against . . 402 Statute defined 9 affii'mative and negative 12 declaratory and remedial 11 interpretation of 14 public and private 10 judicial notice of 10 takes effect when 9 Statute of Limitations, effect of, on remedy . . . 243 Statute of Uses defined 77, 78 effect of, on freeholds in f uturo ... 81 livery of seisin .... 80 uses 79 object of 77, 78 Statute-Felonies 396, 487 Statutory Crimes, how described in indictment . . . 496 Stolen Goods, receiving of 442 Stream, effect of changes in, upon ownership of land . . 129 Subject defined 360 duties of, to state 367-372 protection of, by state 374-376 right of, to change allegiance 363 vindication of, by state 377-381 wrongs against, by state 375 Subornation of Perjury 439 SuBPCENA defined . • 297 duces tecum 297 in equity 335 service of 335 Succession, title by 159 Summons, writ of ... . 279 service of 279 Support of Soil, right to 57 Supreme Court of the United States, jurisdiction of 354 Surety, relief of, against principal, in equity .... 323 Suretyship, contract of 183 Surplusage in indictment 497 Surrebutter 287 374 INDEX. SECTION Surrejoinder 287 SuRRKNDER, deed of 142 Taking in robbery 434 theft 430 Taxation, right of 157, 372 of state functions by United States .... 872 United States functions by individual States 372' Taxes direct and indirect 372 implied contract to pay 262 Tax-Sales, effect of 135 Technical Words in indictment 496 Tenant, arson by 423 at will 95 by curtesy 91 sufferance 97 for Ufa 88,93 years 94 from year to year 96 in common 120-122 dower 92 fee simple , . . . . 86 tail 87 after possibility of issue extinct . . 90 joint-tenancy 115-119 severalty 114 Tenant and Lord, feudal relations of 68 Tenement defined 41 Tenures, allodial 99 feudal 67, 98 in the United States 99 Term defined 94 Testament defined 166 execution and construction of . . • . . . 167 title by 166 Testator, capacity of 148 Testimony, when false 439 material to the issue 439 Theft defined 43Q INDEX. 375 SECTION Theft, carrying away in 430 property in 431 ownership of 432 specific intent in 433 taking in, against tlie owner's will 430 by bailee 430 consent 430 fraud 430 servant 480 Threats defined 213 Time of Cuiminal Act, how laid in indictment . . . 494 Tithes defined 47- Title defined 123 to personal property 157 by accession 163 confusion 163 contract 163 creation 164 forfeiture 158 gift 165 judicial decree .... 161 marriage 160 occupancy 162 prerogative 157 succession 159 testament 166 to real property 123 by abandonment 130 accretion 129 descent 123 devise 138, 148 eminent domain 137 escheat 128 execution 135 forfeiture 131 grant 138 private I'lO public 139 judicial decree 136 marriage 134 376 INDEX. SECTIOS Title to real property by possession 133 pieseription 132 purchase 123, 127 Title-Deeds, possession of, how obtained in equity . . 323 Titles, Pretended, sale of ■ . . 448 ToKTS defined 16, 212 elements of 212 of wife, liability of husband for 189 Trades, Injurious 215, 466 Trade-Mark, injunction against infringement of . . . 316 Traverse 283 Treason defined 398 a degree of crime 394 against individual States 402 United States 400, 401 alien cannot commit . . 404 at common law 399 how committed 400, 401 misprision of 405 overt act in 403 Treasonable Purpose defined 400 Trespass ab initio 222 action of 257 de bonis asportatis 226 remedy for 257 defendant in, when entitled to the property in- jured 161 for mesne profits 255 how, by whom, and against whom committed . 222 injunctions against 316 on the case, action of 258 quare clausum 222 remedy for 257 vi et armis 257 Trial 289 in criminal cases 510 equity 341 Trover, action of 259 defendant in, when entitled to the property con- verted 161 IKDEX. 377 SECTION Trustee, how compelled to give bonds 323 Trusts defined 79 in equity 328 Ubi Jus ibi Kemedium 242 Uncertainty in indictment 497 United States, common law in courts of 5 executive functions of 352 how dissolved 347 organized 346 judicial functions of 354 jurisdiction of courts of 354^356 legislative functions of 351 protection and vindication of subjects by 381 treason against 400, 401 Unlawfui, Assembly 455 Unsold Lands, how gi-anted 139 ownership of 139 Unwritten Law 4 Use upon a Use 79 Uses defined 77 statute of 77-79 effect of, on freeholds in futuro .... 81 livery of seisin 80 Venire 290 Venue 493 Verdict . 305 against evidence, new trial for 303 error in, how taken advantage of 307 general 306 illegal 307 in criminal cases 514 special ' 306 Ward defined 197 abduction of 237 effect of marriage of, on guardianship 202 estate of, how managed by guardian 201 rights of 200 378 iitDEX. SECTION Wakrant, arrest with and without . - • 480, 481 Warranty, contract of 184 Waste defined . . - 224 how, by whom, and against whom committed . . 224 injunctions against . 316 remedy for 258 Water, easements in 57 navigable, obstruction of 466 Way defined 49 disturbance of 223, 225 remedy for 258 Wharves, right to build 57 Wife, abduction of 283 remedy for . 257 battery of 235 remedy for 257 criminal acts of, in presence of husband .... 393 criminal conversation with 234 how far subject to husband 190 recognized in equity 189 power of, to contract 169, 189 in equity 326 sue and be sued 189 in equity 326 rights of, as against husband 191 to property of husband 160 how forfeited . 92, 191 separate property of, in equity 326 services of, belong to husband 190 tyranny of husband over, injunctions against . . 318 Will of lands, construction of 150 effect of 151 execution of 148 requisites of 148 revocation of 149 of personal property, construction of 167 requisites of 166, 167 Witness, competent when 298 cross-examination of 301 examination of 301 INDEX. 879 SECnON Witness, may testify to what 299 not compelled to answer when 299 re-examination of 301 Words, actionable and non-actionable'per so .... 217 WocNDiNG defined 214 Wrecks, title to 157 Writ of Error 311 in criminal cases 518 Writings, copies of, when admissible in evidence . . . 295 construed by court 295 in possession of adverse party, how obtained . 330 notice to produce 297 proof of . . . 297 oral evidence to vaiy 295 Writs defined 279 of habeas corpus 271 mandamus 268 prohibition 269 quo warranto 270 prerogative 268 service of 279 Written Evidence . 294 Wrongs against personal liberty 219 property 220-230 security 213-218 superior in a relation 232 committed by parties in a relation against each other 231 from joint act of injured and injurer .... 243 unlawful ti'ansaction 243 of state against its subjects 375 subjects of other states . . . 376 private and public 16, 212, 382 remedy for all 242 University Press : John Wilson and Son, Cambridge,