"oSm-i ^ i^^^' '■'?*'■' ',>ii So 9^ QJornpU 2Iam i>rl|flnl Slibtata Cornell University Library KFN5082.B35 1892 Questions and answers for law students / 3 1924 021 901 578 A Cornell University J Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021901578 , QUESTIONS AND ANSWERS FOB LAW STUDENTS BY EDWIN, BAYLIES COXJNSKLOR^AT LAW. THIRD EDITION. BANKS & BEOTHEES, NEW YORK. ALBANY 1892. ^7^2.90 Entered according to Act of Congress in the year 1888, by WILLIAM GOULD, JR., & COMPANY, In the office of the Librarian of CongreSs^at Washington. '. - ; ; -r-- _^ , Entered according to Act of Congress in the year 1892, by BANKS & BROTHERS, In the office of the Librarian of Congress at Washington. PREFACE. The preparation of the first edition of this work was commenced in the belief that a small volume, combining some of the most important of the elementary principles of the law with the out- lines of practice under the Code, might be deemed worthy of a place on the shelf of the law student. It was thought that, to I the solitary student in the office of the practicing attorney, it might be useful in inducing a more methodical and systematic course of study ; that to the student in the law school, it would be useful in begetting a habit of applying theory to questions of fact ; and that to both, it might prove a convenient means of .testing the extent and accuracy of their knowledge of legal prin- ^ciples and the rules of practice. The favor with which the first edition was received by iaw students has proved that these expectations were well founded, and has induced the publishers to prepare a second edition adapted to the present law and practice in this State. Hoping that this edition will meet with the same kindly reception that was accorded to its predecessor, it is submitted to the consideration of the future members of the bar. EDWIN BAYLIES. Johnstown, N. Y., June, 29th, 1888. TABLE OF CONTENTS* CHAPTER I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. PAGE. law.s in general 1-s Personal bights 9-16 Domestic relations 17-3o Corporations 36-48 Law of real property 49-98 Personal property 99-10.5 Contracts *. 106-101 Agency, ok principal and agent 132-141 Principal and.si7rety 142-147 Partnershii's 14S-1.>5 Bailment ms-lld Negotiable paper 180-194 Insurance 195-215 Wills 216-231 Executors and administrators 232-241 Equity .iubisprudence 242-261 Pleading 262-310 Practice 311-460 Evidence 461-.506 miscellaneous and moot questions 507-512 CmMINAL LAW 513 QUESTIONS AND ANSWERS FOE L.A.'^T^T- ST-CrnDEnSTTS. CHAPTER I. LAWS IN GENERAL. 1. What is meant by " law" in its most general and compreJieVf hensive sense ? In its most general and compreliensive sense, the term law signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irra- tional. So, a general definition of the word law has been given as the command of a superior. 1 Shars. Bl. Com. 38, 39, note. 2. In its more limited and usual signification, what is to he un- derstood hy the word law ? Law, in its more confined sense, has reference to hwman con- duct, and has been defined to be " a rule of human action, pre- scribed and promulgated by sovereign authority, and enforced by sanction of reward or punishment." Best on Evidence, Int. 1. 3. What is that law called hy which a particular State or nation is governed ? The law which -governs a particular State or nation is called municipal or civil law, and is defined to be a rule of civil conduct prescribed by the supreme power in the State. 1 Shars. Bl, Com. 44 ; 1 Kent's Com. 446. 4. What is meant by the sovereign or supreme power in a State ? 2 Laws in General. By the sovereign power is meant the power to make laws, for, wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put on. This sovereignty or supreme power in every State resides ultimately in the body of the people. 1 Shars. Bl. Com. 49, note. 5. Of what is municipal law composed ? Municipal law is composed of written and unwritten, or statute and common law. 1 Kent's Com. 446. 6. What does the unwritten, or common law, include ? It includes those principles, usages and rules of action, ap- plicable to the government and security of person and property, which do not rest for their authority upon any express and pos- itive declaration of the will of the legislature. These rules and maxims receive their binding power, and the force of laws, by long and immemorial usage, without any legislative act or inter- ference. 1 Shars. Bl. Com.'64 ; 1 Kent's Cora. 472 ; 2 Wait's Act. & Def. 280. 7. What is statute, or written law ? Statute, or written law, is the express written will of the legislature, rendered authentic by certain prescribed forms and solemnities ; and it is a principle in the English law that an act of parliament, delivered in clear and intelligible terms, cannot be questioned, or its authority controlled, in any court of justice. 1 Kent's Com. 446 ; 1 Shars. Bl. Com. 91 ; Potter's Dwarris on Statutes, 44. 8. Does this principle in the English law, as to the omnipotence of parliament, prevail in the United States ? It does not ; for the law with us must conform, in the first place, to the constitution of the United States, and then to the subordinate constitution of its particular State, and, if it infringes the provisions of either, it is so far void. If, however, there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power under any other form of government. 1 Kent's Com. 448 ; Potter's Dwarris on Statutes, 46. Laws in Gknbeal. 3 9. Have our courts of justice a right to pronounce whether a statute he or be not constitutional ? They have ; and it has become a settled principle, in the legal polity of this country, that it belongs to the judicial power, as a matter of right and of duty, to declare every act of the legislature, made in violation of the constitution, or of any provision of it, null and void when the question of the constitutionality of the act is properly before a court for determination. 1 Kent's Com. 450. 10. Does the facf that part of a statute is unconstitutional au- thorize a court to adjudge the remainder void? It does not, unless the provisions are so interdependent that one cannot operate without the other, or are so related in sub- stance and object that it is impossible to suppose that the legis- lature would have passed the one without the other. People v. Kenney, 96 N. Y. 294. 11. When does it become the duty of a court to decide as to the constitutionality of a statute ? Only when the question is directly and necessarily involved in the issue presented to the court for determination. A statute is assumed to be valid until some one complains whose rights it invades. Cooley on Const. Lim., 163 ; People v. Brooklyn, etc.. By. Co., 89 N. Y. 75. 13. Q-ive the distinction between public acts and private acts. A public act is a universal rule that regards the whole com- munity, while private acts are those which concern only a par- ticular lopality, thing or class of persons. Generally speaking, statutes are public ; and a private statute may rather be consid- ered an exception to the general rule. Potter's Dwarris oh Statutes, 62 ; 1 Kent's Com. 459 ; 1 Shars. Bl. Com. 85. 13. Can an act be general which relates to particular persons or things? It can. A law relating to particular persons or things as a class may be general, while one relating to particular persons or things of a class may be local and private. , Matter of Church, 92 N. Y. 1. 4 Laws ix Genera t. 14. When does a statute take effect ? It is now the settled rule that a statute, when duly made, takes effect from its date, when no time is fixed. In this State it is provided that every law, unless a different time be prescribed therein, shall commence and take effect throughout the State on, and not before, the twentieth day after the day of its final pas- sage as certified by the Secretary of State. 1 Kent's Com. 454 ; Potter's Dwarris on Statutes, 101 ; 1 Rev. Stat. (7 Ed.) 433, §12. 15. From whence did we derive the chief hody of American cotk- mon law ? , It was imported by our colonial ancestors, as far as it was ap- plicable, and was sanctioned by royal charters and colonial stat- utes. It is also the established doctrine that English statutes, passed before the emigration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country. 1 Kent's Com. 478 ; Potter's Dwarris on Statutes, 43 ; 2 Wait's Act. & Def. 282. 16. What portions of the law of England were adopted by the State of New York? By the constitution of 1777, it was declared that such parts of the common law of England, and of the statute law of Eng- land and Great Britain as, together with the acts of the colonial legislature, formed the law of the colony on the 19th of April, 1775, should continue to be the law of the State, subject to alteration by the legislature. Such parts as are repugnant to the constitution are abrogated. Potter's Dwarris on Statutes, 43; 2 Wait's Act. & Def. 282. 17. Where is the best evidence of the common law to be found? It is to be found in the decisions of the courts of justice, con- tained in numerous volumes of reports, and in the treatises and digests of learned men, which have been multiplying from the earliest periods of the English history down to the present time. The reports of judicial decisions contain the most certain evi- dence, and the most authoritative and precise application of the rules of common law. 1 Kent's Com. 478 ; 2 Wait's Act. & Def. 285. Laws in General. 5 18. To what extent is a decision upon a point of law, arising in any given case, binding as authority in a similar case ? If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correct- ness ; and the judges are bound to follow that decision so long as it stands unreversed, jinless it can be shown that the law was misunderstood or misapplied in that particular case. 1 Kent's Com. 475, 476 ; 2 Wait's Act. & Def. 287. 19. Of what parts may every law he said to consist? Every law may be said to consist of four parts. 1. The declaratory, which defines the rights to be observed and the wrongs to be eschewed ; 2. The directory, by which the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs ; 3. The remedial, which points out a method to recover private rights or redress private wrongs ; 4. The sanction, or vindicatory branch of the law, which specifies the evil or penalty incurred by such as commit any public wrong, and transgress or neglect their duty. 1 Shars. Bl. Com. 54. 20. What is to he understood hy the Roman, or civil law, as distinguished from the common law ? By the Roman, or civil law, is generally understood the civil or municipal law of the Roman empire, as comprised in the in- stitute, the code, and the digest of the Emperor Justinian, and the novel constitutions of himself and some of his successors. It constitutes the principal basis of the unwritten or common Lnv of most of the states of Eurdpe, of the Spanish American States, and one of the United States, namely, Louisiana. 1 Shars. Bl. Com. 81 ; 1 Kent's Com. 515. ' 31. What is the fairest and most rational method of intervreting statutes ? By seeking the intention of the legislature at the time of the passage of the act, by the aid of those signs which are the most natural and probable indications of legislative intent. These signs are either the words, the context, the subject-matter, the effects an^ consequence, or the spirit and reason of the law. 1 Shars. Com. 59 ; Potter's Dwarris on Statutes, 176, 179. 6 Laws i^j General. 22. In construing a statute, in what sense are words generally to he understood?. They are generally to be understood in their usual and best known signification. Terms of art, or technical terms, must be taken according to their acquired use in art, trade and science. If the sense of the words is still in doubt their meaning may be established from the context. The title of an act may be re- sorted to as an aid to the interpretation of the meaning ^f the act. People v. Wood, 71 N. Y. 371 ; 1 Shars. Bl. Com. 59, 60 ; Potter's Dwarris on Statutes, 188 ; 1 Kent's Com. 462. 23. Have our courts the power to declare a legislative act void because it conflicts with their opinion of natural rights or justice f They have not. All that they can do with odious statutes is to chasten their hardness by construction, for the legislature possesses a right certainly equal, if not superior, to that of the courts to determine what laws are consistent with the abstract principles of natural justice. Potter's Dwarris on Statutes, 79, 81. 24. What is the general rule as to the construction of penal stat- utes ? Penal statutes must be construed strictly ; but they are to be construed strictly in the sense that the case in hand must be brought within the definition of the law, but not so strictly as to exclude a case which is within its words taken in their ordinary acceptation ; that is, there is no peculiar technical meaning to be given to language in penal, more than in remedial statutes. 1 Shars. Bl. Com. 88, note 29 ; Potter's Dwarris on Statutes, 246. 25. What other kinds of statutes, besides penal statutes, are construed strictly ? Laws made in derogation of common right are to be con- strued strictly, as, for example, statutes for any cause disabling any person of full age and sound mind to make contracts. So statutes conferring exclusive privileges on corporations or in- dividuals fall under this rule. In the same class are statutes which impose restrictions on trade or common occupations, or which levy a tax upon them. So a statute conferring authority to impose taxes, or exempting property from taxation, or involv- Laws in Genekal. T iiig the liberty of the citizen, must be construed strictly. Pot- ter's Dwarris on Statutes, 251, 259; 1 Shars. Bl. Com. 88, note 29. 36. What is the general rule as to the pleading of statutes ? Courts of law are bound to take notice jadicially and ex of- ficio of a public act, without its being particularly pleaded or formally set forth by the party who claims advantage under it ; but private acts must be specially pleaded, otherwise the judges will take no notice of them. Potter's Dwarris on Statutes, 52, 63 ; 1 Kent's Com. 460. 27. Wliat is to he understood hy international law, or the ^'•law of nations ? " By this law we are to understand that code of public in- struction which defines the rights and prescribes the duties of nations in their intercourse with each other. According to the observation of Montesquieu, it is founded on the principle that different nations ought to do each other as much good in peace, and as little harm in war, as possible, without injury to their true interests. 1 Kent's Com. 1, 2 ; 1 Shars. Bl. Com. 43. 28. How is this law enforced? It is enforced by the censures of the press, and by the moral influences of those greiat masters of public law who are consult- ed by all nations as oracles of wisdom. It is likewise enforced by the sanctions of municipal law. 1 Kent's Com. 181. 29. Of what does the hody of international law principally con- sist ? International law is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relations and conduct of nations; of a collection of usages, customs and opinions, the growth of civilization and commerce ; and of a code of conven tional or positive law. 1 Kent's Com. 3 ; 1 Shars. Bl. Com. 43. 30. Upon what foundations are all human laws based? All human laws are based upon two foundations, namely, the law of nature and the law of revelation ; that is to say, no 8 Laws in General. human laws should be suffered to contradict either. With regard to such points as are not indifferent, human laws are only declar- atory of, and act in subordination to, the two former. 1 Shars. Bl. Com. 42. I'EKSONAIi lllUHTS. CHAPTER II. PERSONAL RIGHTS. 1. Into what two classes are the right of persons divided f The" rights of persons are usually treated by text writers as being either (1) absolute, that is, such as belong to men consid- ered merely as individuals, or single persons, or (2) relative, or, in other words, such as arise from the civil and domestic reU- tions. 1 Bli Com. 123 ; 2 Kent's Com. 1 ; 1 Wait's Act. & Def . 1. 2. What phrase does Blachstone use as emhr'acing all the absolute rights of man ? Blackstone treats the absolute rights of persons as being that which in common parlance is known as the natural liberty of mankind. 1 Bl. Com. 125. 3. What is the distinction between natural, and political or civil liberty ? Natural liberty consists in the power of acting as one pleases, subject to no restraint or control beyond that imposed by the laws of nature. Political or civil liberty is natural liberty so far restrained by human laws as is necessary and expedient for the general advantage of the public. 1 Bl. Com. 125. 4. When does the individual surrender his natural liberty, and subject his absolute rights to such restraints or limitations as are consistent with perfect civil liberty ? When he leaves the savage state and enters into society, claiming and receiving the protection of the laws by which it is governed. His right to act as he pleases still remains absolute, except in those particulars wherein the public good requires some direction or restraint. 1 Bl. Com. 125, 126. 10 Pebsonal Rights. 5. State generally ivhat you understand to he absolute rights of individuals. They are (1) the right of personal security ; (2) the right of personal liberty ; (3) the right of private property ; and (4) the right to the free exercise and enjoyment of religious profession and worship. 1 Bl. Com. 129 ; 2 Kent's Com. 1, 34. 6. What do you understand hy the right of personal security ? The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. 1 Bl. Com. 129. 7. When will a person be justified in taking the life of an- other ? Homicide is justifiable when necessary for self-defense, or in defense of near relations, or against persons attempting to commit a known felony against one's person, habitation or prop- erty. 1 BL Com. 130 ; 2 Kent's Com. 15 ; 1 "Wait's Act. & Def. 53 ; 6 id. 120. 8. Why is the term " natural life " sometimes employed in con- veyances of life estates, and what is the origin of the use of the word natural in that connection ? The life of a person may be considered as legally at an end, either when actual death occurs, or when, though living, the law ' adjudges him dead. The word natural was prefixed ^o the word " life " in conveyances of life estates, to denote that the event upon which the estate was to terminate was the actual death of the grantee, as distinguished from civil death. 1 Bl. Com. 132. 9. Into what two classes does the law separate injuries affecting the reputation of individuals, and what redress does it afford to the party injured f Injuries to the reputation are divided into two general classes, denominated respectively slander and libel. Slander is regarded as a civil injury merely, for which the law gives compen- sation in damages, while Ubel is regarded as a public as well as a private injury, for which the party committing the offense may be punished criminally as well as civilly. 2 Kent's Com. 16-18. t*ERS0NAL Rights. 11 10. What is the difference between libel and slander P Libel is the malicious defamation of any one, made public by printing, writing, signs or pictures, for the purpose of exposing him to public hatred or ridicule. Slander is a similar defamation by woid. of mouth. 2 Kent's Com. 16-18 ; 4 Wait's Act. & Def. 281 ; 5 id. 727 ; 8 id. 382, 464. 11. For what words may an action of slander be maintained ? Oral slander, as a cause of action, may be divided into five classes, as follows : (1) Words falsely spoken of a person which impute to the party the commission of some criminal offense in- volving moral turpitude, for which the party, if the charge is true, may be indicted and punished. (2) Words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society. (3) Defamitory words falsely spoken of a person which impute to the party unfitness to perform the duties of an office or employment of profit, or the want of integ- rity in the discharge of the duty of such an office or employ- ment. (4) Defamitory words falsely spoken of a party which prejudiced such party in his or her profession or trade. (6) Defamitory words falsely spoken of a person, which though not in themselves actionable, occasion the party special damage. 5 Wait's Act. & Def. 727 ; 8 id. ,465, 466 ; 2 Kent's Com. 16, note ; 3 Steph. Com. 491. 12. What provision is made by the constitution of this State in respect to criminal prosecutions for libels ? The constitution provides that, in aU. criminal prosecutions for libels, the truth may be given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted ; and the jury shall have the right to determine the law and the fact. Const. N. Y., Art. 1, § 8 ; 2 Kent's Com. 18, 24. 13. How is the liberty of speech and the_ liberty of the press secured to the people of this country ? By constitutional provisions. The constitution of this State declares that every citizen may freely speak, write and publish 12 Personal Rights. his sentiments on all subjects, being responsible for the abuse of that right ; and both the constitution of this State and the United States prohibit the passage of any law that shall restrain or abridge the liberty of speech or of the press. Const. U.S. Amend., Art. 1; Const. N. Y., Art. 1. § 8 ; 2 Kent's Com. 17. 14. iw what does the right of personal liberty consist f It consists in the power of locomotion, of changing situa- tion, or moving from place to place at will, without imprison- ment or restraint unless by due course of law. 1 Bl. Com. 134. 15. By what instrument was the right of personal liberty first guaranteed to the people of England f By the ma^na charta, which provides that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. 1 Bl. Com. 134. 16. What protection to personal liberty is extended to the people generally against illegal imprisonment at the hands of those in- trusted with the administration of Justice ? The protection afforded by the writ of habeas corpus, by virtue of which any person illegally restrained of his liberty may compel those having him in custody to take him before the proper court or officer and obtain his discharge, if it shall ap- pear that his commitment was unjust. 1 Bl. Com. 135 ; 2 Kent's Com. 29-31. 17. In what cases may the privilege of the writ of habeas corpus be suspended? ' Only when, in cases of rebellion or invasion, the public safety may require it. Const. U. S., Art. 1, § 9 ; Const. N. Y., Art. 1, § 4. 18. Who are entitled to prosecute this writ under the laws of this State ? k.nj person imprisoned or restrained in his liberty within the State, for any cause or upon any pretense, except (1) where he has been committed or is detained by virtue of a mandate is- sued by a court or judge of the United States in a case where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by Personal Rights. 13 the commeucement of legal proceedings in such a court ; or, (2), where he has been committed or is detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction ; or the final order of such a tribunal made in a special proceeding instituted for any cause, except to punish him for a contempt; or by virtue of an execution or other process issued upon such a judgment, decree, or final order. 2 Kent's Com. 29 ; Code of Civil Pro., §§ 2015, 2016. 19. What was the writ of ne exeat regno, at common law, and what is it as employed in this eowntry ? The writ of ne exeat regno, as used in England, is a high prerogative writ, by which the king may prohibit a subject from . going into foreign parts without license ; but in this country the writ is never used for State purposes, and is a mere civil process by which a creditor may compel a debtor, who is about to leave the State, to give security to abide the decree of the court, or in default thereof to be imprisoned until such security is given or decree rendered. 2 Kent's Com. 33, 34. 20. Is the writ of ne exeat an available remedy in this State ? It is not. Code of Civ. Pro. § 548. 31. E.OW is the liberty of conscience secured to the people of this State and of the United States ? By constitutional guarantees. The constitution of the United States provides that " congress shall make no law respecting an establishment of religion," while that of this State declares that "the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all mankind." Const. U. S. Amend., Art. 1; Const. N. Y. Art. 1, § 3. 22. What limit upon the otherwise absolute liberty of conscience is imposed by the constitution of this State ?■ The provision, guaranteeing to all mankind the free exercise and enjoyment of religious profession and worship, is qualified by the limitation that the liberty of conscience thereby secured shall not be so construed as to excuse acts of licentiousness, or to jus- tify practices inconsistent with the peace or safety of the State. Const. N. Y., Art. 1, § 3. 14 Personal Rights. 23. Sow is the right of trial hy jury guaranteed to citizens of this and other States ? The constitution of this State declares that " the trial by- jury, in all cases in which it has been heretofore used, shall re- main inviolate," while the constitution of the United States pro- vides that in all criminal prosecutions the accused shall enjoy the right of a speedy and public trial by an impartial jury, and be informed of the nature and cause of the accusation, be confronted with the witnesses against him, have compulsory process for obtaining witnesses in his favor, and have the assistance of coun- sel for his defense. Also that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. Const. N. Y., Art. 1, § 7 ; Const. U. S., Amend., Art. 6, 7. 24. In what does the right of property consist? It consists of the right, inherent in every person, to the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. 1 Bl. Com. 138. 25. WTiat general constitutional provisions can you mention which protect the citizen in the enjoyment of life, liberty and prop- erty ? The clause in the constitution of this State, and of the United States, providing that no person shall be deprived of life, liberty or property, without due process of law, and also that which provides that private property shall not be taken for public use Avithout just compensation. Const. U. S., Amend., Art. 5, § 14 ; Const. N. Y., Art. 1, § 6. 26. Does the common law recognize the right of any man or class of men to appropriate the private property of any individual for the convenience of the community at large, without the consent of the owner? It does not ; but where the welfare and convenience of an entire community demand that private property shall be so taken, special statutes or even general statutes may be enacted author izing such taking on making compensation for the property taken, 1 Bl. Com. 139 ; 5 Wait's Act, & Def. 286 ; 6 id., 301. PfiRSONAL Rights. 15 27. Can the legislature authorize the taking of private property for private purposes on making compensation for the property so taken ? It cannot. 4 Wait's Act. & Def. 621 ; 7 id., 567 ; Cooley's Const. Lim. 529. 28. Is the right of an individual to the control of his property so absolute and exclusive in its nature that it will prohibit the taking of such property without the consent of the owner, and under the authority of general laws, c^ for the purposes of a private road? It is not. The power oi ins legislature to pass laws under which the property of one person could be taken, without the consent of the owner, and used as a private road, even where the owner received compensation in damages, was once ques- tioned by the supreme court ; but the question has been forever placed at rest by the clause in the constitution of this State pro; viding that private roads may be opened' in the manner to be prescribed by law, the damages arising therefrom being paid by the party benefited to the party injured. Willard on Real Estate, 197 ; Const.' N. Y., Art. 1, § 7. 29. Are there any cases in which the right to destroy private property may exist, without any corresponding remedy by which the owner can recover compensation in damages from the public or individuals ? There are. The right to destroy property, to prevent the spread of a conflagration, is an example of this right. 1 Bl. Com. 140, note ; 2 Kent's Com. 339, notes ; American Print Works V. Laurens, 1 Zab. 248 ; 2 Wait's Act. & Def. 116 ; 8 Id. 29. 30. Would the destruction of property in the case given be justified as an exercise of the right of eminent domain, or as the taking of private property for public use f As neither, but as a right existing at common law, founded on the plea of necessity. It is a right which may be exercised by individuals. American Print Works v. Laurens, 1 Zab. 248. 31. In cases of uncommon injury, or infringement upon the ab- solute rights of individuals, which the law is too defective to reach and redress, what remedy is still left to the people ? 16 Peksonal Eights. The right to peaceably assemble, and to petition the govern^ ment for a redress of their grievances. 1 Bl. Com. 143 ; Const. U. S., Amend., Art. 1 ; Const. N. Y., Art. 1, § 10. 32. Qan any constitutional law he passed which shall prohibit the carrying of arms for the purpose'of self-defense ? It can, notwithstanding that the constitution provides that the right to keep and bear arms shall not be infringed. Const. U. S., Amend., Art. 2. 33. Can a State deny to any person within its jurisdiction the equal protection of its laws ? It cannot. The right of every person to the protection of the Laws of the State in which he may chance to be is absolute. Const. U. S., Amend., Art. 14, § 1. 34. Oan a citizen of the United States he denied any personal right on the ground that it is not expressly secured to him as a constitutional privilege ? No. The enumeration in the constitution of certain rights cannot be construed to deny or disparage others retained by the people. Const. U. S., Amend., Art. 9. 35. Can a State make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States ? It cannot. Const. U. S., Amend., Art. 14, § 1. Domestic Eelaiiohs. 17 CHAPTER III. DOMESTIC RELATIONS. 1. What is marriage? Marriage is a contract according to the form prescribed by law, by which a man and woman, capable of entering into such a contract, mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and his wife. Tyler on Inf. & Gov., (2d. ed.) 807 ; Shelf. Mar. & Div. 1 ; Reeve's Dom. Rel. 307 ; 3 Wait's Act &. Def. 627. 2. When is Marriage complete ? Marriage is complete when there is a full, free and mutual consent by parties contracting, although not followed by cohabita- tion. Reeve's Dom. Rel. 307, note ; 2 Wait's Law & Pr. (5th. ed.) 299 ; Tyler on Inf. & Gov. (2d. ed.) 813. 3. Is it necessary, to constitute a valid marriage, that it should he solemnized hy any particular form or ceremony? It is not. No ceremony or solemnization by minister, priest or magistrate is necessary to give validity to a marriage. 2 Kent's Com. 87 ; 3 Wait's Act. & Def. 684 ; 8 id. 308 ; 2 Wait's Law & Pr. (5th. ed.) 299 : Reeve's Dom. Rel. 310, note; Tyler on Inf. & Gov. (2d. ed.) 812. 4. At what age are the parties legally capable of contracting and consummating a marriage ? Under the Statutes of this state, males at the age of eighteen and females at the age of sixteen are capable of contracting and consummating a marriage. " Laws of 1887, chap. 24. 18 .Domestic Relations. 5. What would he the effect of the solemnization of a marriage between parties within the age of consent ? The marriage will be void' from the time its nullity shall be declared by a court of competent authority; but the marriage will in no case be annulled on the application of a party who was of legal age at the time it was contracted, nor where it ap- pears that the parties, after attaining the age of consenl^ had for any time freely cohabited as husband and wife. Tyler on Inf. & Gov., (2d. ed.) 134 ; Code of Civil Pro. § 1742. 6. What was the effect of marriage, at common law, on the wife^s property, in things personal ? At conimon law, by the fact of marriage, the husband became legally entitled to all the personal estate which the wife had at the time of marriage, and to all which might come to her there- after during the coverture. The law vested it in him by virtue simply of his marital relations. Tyler on Inf. & Gov. (2d. ed.) 384, 408 ; Reeve's Dom. Rel. 49 ; 2 Bl. Cora. 483 ; 3 Wait's Act. & Def. 687 ; 8 id. 307, 308 ; 2 Wait's Law & Pr. (6th. ed.) 300. 7. What was the effect of marriage, at common law, on the wife's property, in things real ? At common law, the husband acquired, by marriage, the usu- fruct of all the freehold estate of his wife, consisting of all her lands, tenement and hereditaments which she had in fee simple, fee tail, or for life. Reeve's Dom. Rel. 86 ; Tyler on Inf. & Gov. (2d. ed.) 414 ; 8 Wait's Act. & Def. 643 ; 8 id. 806. 8. What was the effect of the Statutes of 1848 and 1849, com- monly called the Married Woman s Acts ? The statutes of 1848 and 1849 entirely abrogated the common- law rule as to the effect of marriage, and substituted a new and entirely different rule. By those statutes the property of the wife, both real and personal, was declared no longer subject to the control or disposal of her husband in any respect ; and the wife was empowered to retain it as her sole and separate prop- erty, the same as though. she were a single female, and to dispose of it by gift, sale or bequest, independent wholly of her hus- band. Tyler on Inf. & Gov. (2d. ed.) 658; Reeve's Dom. Rel. 50 ; Laws of 1848, ch. 200 ; Laws of 1849, eh. 375 ; 2 Wait's Law & Pr. (5th. ed.) 301, 302. Domestic Relations. 19 9. What was the common law, and what is the present rule re- specting the validity of a gift from the husband to the wife ? It was the rule of the common law that a gift from the hus- band to the wife would not vest the property, in the thing given, in the wife. This rule was recognized by the acts of 1849 and 1860, but was impliedly abrogated by the act of 1862. In the absence of fraud, a wife may now acquire property by gift from her husband, and may maintain an action to recover it from any person wrongfully removing it from her possession. Laws of 1862. Ch. 172 ; Tyler on Inf. & Gov. (2 ed.) 514, 521 ; 3 Wait's Act. & Def. 498 ; 8 id. 291, 313 ; 2 Wait's Law & Pr. (5th ed.) 307,311. 10. What was the common law, and what is the present statutory rule, in respect to the earnings of a married woman ? At common law the earnings of the wife belonged absolutely to the husband, and a promise to pay the wife therefor was con- strued as a promise to pay her husband. But, by the act of 1860, a married woman is authorized to carry on any trade or business, and perform any labor or services on her sole and separate ac- count, and to hold the earnings resulting therefrom as her sole and separate property. Laws of 1860, ch. 90, § 2 ; Eeeve's Dom. Eel. 50 ; Tyler on Inf. & Gov., (2d. ed.) 321, 389, 674 ; 3 Wait's Act & Def. 635 ; 2 Wait's Law & Pr. (5th ed.) 308. 11. What was the rule at common law, and under the Revised Statutes of this State, as to the disposition of the personal estate of a married woman who died intestate, leaving a husband surviving, but no descendants ? The husband, at common law, and under the Revised Statutes, held the property of his deceased wife, not only by virtue of administration, but also by virtue of his marital rights. 8 Wait's Act. & Def. 807, 308; 2 Rev. Stat. 75, §§ 29, 30; Id. 98, § 79; Tylor on Inf. & Gov. (2d. ed.) 659, 665. ^ 12. Has this rule been changed by the various acts in relation to married women, known as the Married Woman! s Acts ? It has not. 8 Wait's Act. & Def. 308 ; Tyler on Inf. & Gov. (2d. Ed.) 659. 13. If A., being a married woman, and possessed of a separate estate, dies intestate, leaving a husband, brothers, sisters and other 20 Domestic Relations. relatives surviving, hut no descendants, what portion of her personal estate will the husband he entitled to take under existing statutes ? The husband is entitled to the entire personal estate of his wife, where she dies intestate, leaving no descendants. The right formerly given him under the common law and Revised Statutes, to inherit the entire personal estate of the wife, in such cases, was not taken away by the act of 1867. Laws of 1867, ch. 782, §§ 11, 12; Barnes v. Underwood, 47 N. Y. 351. 14. Oan a married woman sue her husband to enforce a right affecting her separate property ? She may, in any form of action, and in the same manner, thab she might sue any stranger. 2 Wait's Law & Pr. (5th ed.) 311 ; Tyler on Inf. & Gov. (2d. ed.) 668. 15. Can a married woman maintain an action of slander for words imputing wnchastity to her f She can, and the damages recovered are her separate prop- erty. Code of Civil Pro., § 1906. 16. What changes in the commoro-law liability of the husband for debts of the wife contracted before marriage have been made by statute in this state ? The common law liability of the husband for debts contract- ed by the wife before marriage was, by the act of 1853, limited to the amount of property acquired by him by marriage or by an ante-nuptial contract ; and by this act, and the acts giving the wife a separate estate, this liability was in effect restricted to prop- erty acquired through the wife by ante-nuptial contract. Reeve's Dom. Rel. 20, 144 ; Tyler on Inf. & Cov. (2d. ed.) 856 ; Laws of 1862, ch. 172; Laws of 1853, ch. 576; 2 Wait's Law & Pr. (5th ed.) 304. 17. State briefly the commonrlaw liability of the husband for the torts cf the wife ? The husband was jointly liable with his wife during covert- ure for all torts committed by her before marriage ; he was solely liable for all torts committed by her in his presence or at his re- quest during coverture ; and jointly liable with her for all torts not committed in his presence or by his request. Reeve's Dom. Rel. 148; Tyler on Inf. & Cov., (2d. ed.) 379; 2 Wait's Law & Pr. (5th. ed.) 831 ; 3 Wait's Act. & Def. 654 ; 8 id. 310. Domestic Relations. 21 18. Is the husband still liahh under the laws of this state for the tortious acts of his wife? A husband is not liable in damages for the wrongful or tortious acts of his wife, nor for injuries to person, property or the marital relation caused by her acts, unless such acts were done by his actual coercion or instigation, and such coercion or instigation is proved like any other fact. Laws of 1890, chap. 51. 19. State the commorirlaw rule as to the liability of the husband for necessaries furnished to the wife during coverture? The husband is bound, by his wife's contracts, for necessa- ries for herself when he has refused or neglected to provide them. This liability is not based upon the consent of the husband, whether express or implied, but on the duty devolving upon him to provide necessaries for his wife. This duty the law will enforce. Reeve's Dom.'Rel. 160; 2 Wait's Law & Pr. (5th. ed.) 825; 3 Wait's Act, & Def. 648 • 8 id. 308 ; Tyler on Inf. & Gov. (2d. ed.) 359. 20. When does this liability cease ? It ceases when the wife departs from ner husband, without cause, and refuses to cohabit with him. Reeve's Dom. Rel. 101 ; Tyler on Inf. & Gov. (2d. ed.) 371 ; 2 Wait's Law & Pr. (5th. ed.) 329 ; 3 Waifs 'Act. & Def. 649; 8 id. 309. 21. Can a married woman enter into any contract in respect to her separate estate, or in respect to any business carried on by her under any statute of this State, which will be binding upon her hus- band, or which will render him liable in person or property ? She cannot. This is expressly provided by the act of 1860, as amended in 1862. See Reeve's Dora. Rel. 20. 22. A wife carries on a mercantile business in her own name, and with her own capital, but through her husband as agent, for whose support she applies an indefinite portion of her income. Will th^ husband or his creditors acquire an interest in the separate estate of the wife, by reason of the voluntary services of the husband as man- aging agent? They will not. A married woman may, under existing stat- 22 Domestic Relations. utes, manage her separate property through the agency of lier husband, without impairing her title thereto and without sub- jecting it to the claims of her husband's creditors. Tyler on Inf. & Cov. (2d. ed.) 661; 2 "Wait's Law & Pr. (5th ed.) 316. 23. In what manner and to what extent may a marrkd woman now hind herself by contract f Except to alter or dissolve the marriage relation, or to relieve the husband from liability for her support, a married woman may contract with her husband or any other person to the same extent, with like effect, and in the same form as if unmarried, and she and her separate estate will be liable thereon, whether such con- tract relates to her separate estate or business or otherwise, and in no case is a charge upon her separate estate necessary. Laws of 1884, cb. 381 ; Laws of 1892, ch. 594. 24. How is a Judgment against a married woman rendered and enforced ? In the same manner as if she was single. Code of Civ. Pro., § 1206. 25. is it necessary or proper to join the husband with his wife in any action or special proceeding affecting the separate property of the wife ? , It is not. Code of Civil Pro., § 450. 26. Is there any case in which the property of a married woman is liable for the debt of her husband ? The property of a married woman may be taken for a debt of her husband contracted by her as his agent for the support of herself and her children. As against such debts the statutes relating to married women afford no protection to the wife, and create no separate estate. 2 Wait's Law & Pr. (5th. ed.) 323. 27. State the different hinds of divorce recognized in this State? There are two kinds or degrees of divorce recognized in this State : (1) An absolute divorce from the bonds of matrimony, ov a. dci.\OTce a vinculo matrimonii ; and (2) a divorce from bed and board, or a divorce a mensa et thoro. Tyler on Inf. & Cov. (2d. ed.) 871. Domestic Delations. 23 28. State the distinction^ as to the effect of the respective decrees of divorce, upon the relations of the parties. The absolute divorce is a complete dissolution of the bond of matrimony, and puts an end to the marriage relation, while the divorce from bed and board, or, as it is often called, a lim- ited divorce, does not put an end to the marriage contract, but is a mere judicial separation of the parties. Tyler on Inf. & Gov. (2d ed.) 871. 29. What is the distinction between a decree of divorce and a decree of nullity ? Divorce, in the strict sense of the term, is a dissolution of the matrimonial relation for causes occurring subsequent to a valid marriage, while a decree .of nullity is rendered only in those cases in which the marriage was void ah initio, for causes existing at the time of marriage, and simply declares that a nul- lity which was absolutely void before. Tyler on Inf. & Gov. (2d. ed.) 856. 30. In what cases are separations from bed and board authorized by the laws of this State ? The statute authorizes an action for separation from bed and board for either of the following causes : (1) The cruel and in- human treatment of the plaintiff by the defendant. (2) Such conduct on the part of the defendant towards the plaintiff as may render it unsafe and improper for the former to cohabit with the latter. (3) The abandonment of the plaintiff by the defendant. (4) Where the wife is plaintiff, the neglect or refusal of the de- fendant to provide for her. Gode of Givil Pro., § 1762. 31. In what cases is a plaintiff not entitled to an absolute di- vorce although the adultery of the defendant is established ? (1) Where the offense was committed by the procurement or with the connivance of the plaintiff. (2) Where the offense charged has been forgiven by the plaintiff. (3) Where the action was not commenced within five years after the discovery by the plaintiff of the offense charged. (4) Where the plaintiff has also been guilty of adultery under such circumstances that the defendant, if innocent, would have been entitled to a divorce. Code of Civil Pro. § 1758. 24 Domestic Kelatioits. 33. Who are infants f All persons, male or " female, under the age of twenty-one years, are infants. Reeve's Dom, Rel. 344 ; 2 Wait's Law. & Pr. (Sth. ed.) 662. 33. What peculiar privilege does the law give to infants for their protection ? The privilege of rescinding their contracts at pleasure. Reeve's Dom. Rel. 344 ; 2 Wait's Law & Pr. (5th ed.) 664. 34. What exception is there to the general rule that an infant is not bound hy his contracts ? An infant is bound by his contracts for such food, drink, washing, clothing, medical attendance and instruction as^ strictly speaking, are necessary for his support and are suitable to his condition in life. But this liability ceases when the articles furnished under the contract cease to be necessaries^, as where the infant lives with a parent, master or guardian, who is ready and willing to supply them. Reeve's Dom. Rel. 344 ; 2 Wait's Law & Pr. 670, 671. 35. If an infant, in want of necessary clothing, should purchase doth for a coat, proper for him in all respects, the ordinary price of which was two dollars per yard, would he be held liable on his contract to pay therefor the sum of four dollars per yard ? He would not be held liable to the extent of his contract, but only for value of the goods furnished, under the general rule that an infant is never liable on the footing of any express con- tract, but is liable only On the implied contract arising from his having been furnished with necessaries, the amount of damages in every case being regulated by the equity of the case. Reeve's Dom. Rel. 347 ; 2 Wait's Law & Pr. 672 ; 1 Pars, on Cont. 313 ; 5 Wait's Act. & Def. 64 ; 7 id. 133. • 36. Does the common-law rule allowing an infant at the age of seventeen to act as executor, prevail in this State ? It does not. The Revised Statutes declare an infant incapa- ble of acting either as executor or administrator. Reeve's Dom. :iel. 855, note ; 3 Rev. Stat. (7th. ed.) 2289, § 3 ; id. 2291, § 32 ; Redf. Surr. Pr. 279, 323. Domestic Eelations. 25 37. At what age may an infant dispose of personal property by will ? The statute fixes the age at which an infant may dispose of personal property by will, at eighteen in males and sixteen in females. Reeve's Dom. Rel. 358, note ; Tyler on Inf. & Cov., (2d. ed.) 41. 38. If an infant enters into a contract to pay a stipulated sum for goods furnished, which are not regarded in law as necessaries, and, after coming of age, promises to pay the vendor for the goods, will he he held liable for the price fixed by the contract, or only for the value of the goods ? He will be liable only for the actual value of the goods, and not for the contract price, if that price exceeds the actual value of the goods at the time of sale. The liability arises on the new contract, and not on the original agreement. Tyler on Inf. & Gov., (2d. ed.) 91, 92 ; Reeve's Dom. Rel. 860. 39. Will a bare acknowledgment of liability be construed as a ratification of an executory agreement made during infancy ? It will not. In order to ratify such a contract, there must be not only an acknowledgment of liability, but an express prom- ise voluntarily made by the infant upon his arriving at the age of maturity, and with the knowledge that he is not legally liable, or some act which is a legal equivalent of an express promise. Story on Cont., § 69 ; Tyler on Inf. & Cov. (2d. ed-.), 92 ; 7 Wait's Act. & Def . 138 ; 8 id. 765. »4:0. If A, during infancy, leases certain real estate, what will he the effect of receiving rent after he becomes an adult ? The act of receivmg rent will be considered as the legal equivalent of an express promise that the lease shall stand, and the infant will be bound thereby. Reeve's Dom. Rel. 362 ; 5 Wait's Act. & Def. 68. 41. If an infant and an adult respectively agree to marry, is the promise mutually binding? It is not. , It is binding upon the adult, while the infant may rescind the contract. Reeve's Dom. Rel. 365 ; Tyler on Inf. & Cov. (2d. ed.) 58 ; 1 Wait's Act & Def. 722 ; 7 id. 137 ; 8 id. 144. 26 Domestic Eelations. 42. If an infant executes a mortgage to secure the purchase- money of goods, upon what condition may he affirm or disaffirm the mortgage, after becoming of full age ? If he affirms the mortgage, he must pay the amount or de- liver the goods, according to its terms; but if lie disaffirms it, he must restore the goods or account for tlieir value. He cannot af- firm the sale and at the same time repudiate the mortgage. Reeve's Dom. Rel. 370, note. 43. If an infant has wasted or disposed of the consideration of a contract made hy him when a minor, does his inability to restore the consideration received deprive him of the right of disaffirming his contract on attaining majority ? It does not. 5 Wait's Act. & Def. 72 ; 7 id. 142 ; 8 id. 564 ; 3 Wait's Law & Pr. (5th. ed.) 664 ; Tyler on Inf. & Gov. (2d. ed.) 80. 44. State the general rule as to the liability of infants for their torts. Infancy is no defense in an action strictly ex delicto, but is a good defense in an action ex contractu. If the act constituting the cause of action is wholly tortious, the infant is liable ; but, if the act complained of is a mere breach of contract, the infant will not be liable, although the action is in form ex delicto, and the acts of the infant tainted with fraud. Reeve's Dom. Rel. 386, note; Tyler on Inf. & Cov., (2d. ed.) 180: 5 Wait's Act. & Def. 73; 7 id. 144 ; 2 Wait's Laws & Pr. (5th. ed.) 667. 45.-?f A, being a minor, hires a horse of B to go a certain dis- tance or to a certain place, but goes a greater distance, or to another place in another direction, is he liable to B. in an action for dam- ages ? He is. The act of the infant, in that case, is a dispossession of the owner and a conversion of the horse; and the action for damages will be founded, not upon a breach of the contract of hiring, but upon the unlawful conversion ; and to this action the plea of infancy will be no defense. Tyler on Inf. and Gov., (2d ed.) 181, 182; 5 Wait's Act. & Def. 73 ; 7 id. 146 ; 8 id. 479; 2 Wait's Law & Pr. (5th. ed.) 668. 46. If an infant at the time of entering^ into a contract fraud- Domestic Eelations. 27 ulently represents that he is of full age, will he he estopped from interposing the defense of infancy when sued upon the contract? He will not. 7 Wait's Act. & Def. 146. 47. Can a parent discharge himself from his obligation to sup- port his child by showing that the child is able to support himself? If tiie child is an infant he cannot, but if the child is an adult he may. Reeve's Dora. Rel. 413. 48. if a person of the age of twenty-one years or over is a pauper, and is, from physical causes, unable to m,aintain himself, is he legally entitled to support from his parents ? He is, if his parents are of sufficient ability. The parents can free themselves from this liability by showing either their^ inability to support the child, or his ability to support himself. Reeve's Dom. Rel. 414. 49- What provision is made by statute for the support of poor persons who are blind, old, lame, impotent or decrepit, so as to be un- able to work to maintain themselves ? The statute provides that the father, mother and children of any such person, who are of sufficient ability, shall, at their own charge, relieve and maintain such poor person in such man- ner as shall be approved by the overseers of the poor of the town where siich poor person may 'be. Reeve's Dom. Rel. 415, note ; Code of Criminal Pro. § 914. 50- Jn what order will the father, mother or children of such poor pers'on be liable for his support? The father is primarily liable; but if he is dead or unable to support the pauper child, then the children of the pauper are liable ; but, if there are no children, or they be not of sufficient ability, then the mother is liable. Reeve's Dom. Rel. 415, note ; Code of Criminal Pro. § 916. 51. Does the common law make it the duty of a child to support an infirm and indigent parent? It does not. The obligation is created solely by statute. Reeve's Dom. Rel. 415, note. 52. Is a husband liable for the support of a child of Ms wife by a former husband, and is he entitled to the services of such child? 28 Domestic Eelations. He is not ; but, if he takes such child into his family, he as- sumes the duties and liabilities of a parent so long as he retains the child in his family. Reeve's Dom. Rel. 416, note ; 2 Wait's Law & Pr. (5th ed.) 341 ; 8 Wait's Act. & Def. 427. 53. What is the general rule as to the disposition of the earn- ings of an infant child. As a general rule, the earnings of an infant belong to the parent, who may sue for them in his own name. Reeve's Dom. Rel. 422; 2 Wait's Law & Pr. (5th ed.) 339. 54. If A employs a minor hy the year to do a certain hind of work, and, at the expiration of the year, pays the amount of wages agi-eed upon directly to the minor, can A set up such payment as a defense to an action, brought by the parent of the infant, for the re- covery of such earnings ? He can, unless notice had been given him by the parent of the infant, within thirty days from the commencement of the services, that he claims the earnings of the infant. Laws of 1850, ch. 266. 55. If a son, after attaining his majority, continues to reside with his father and to work for him without any express agreement that he shall be compensated for his labor, can he recover for such services on proof of their value and that they were rendered at the father's request ? He cannot. The law will not imply a promise to pay wages in such a case. 2 Wait's Law & Pr. (5th ed.) 340 ; 5 Wait's Act. & Def. 25. 56. Can an insolvent father, acting in good faith, make a gift to his minor son of the time and future earnings of the latter, which will be valid as against the father's creditors ? He can. He id not bound to work his children as mere ser- vants for the benefit of his creditors. 8 Wait's Act. & Def. 429 ; 2 Wait's Law & Pr. 341. 57. If a boy employed as a clerk in a store embezzles funds of his employer to an amount in excess of his wages, can such embez- zlement be shown as a defense to an action by the boy's father for the recovery of such wages? It can. The right of the father to the earnings of his son is Domestic Kblations. 29 not superior to all offsets and equities between the son and his employer. 8 Wait's Act. & Def. 429 ; 2 Wait's Law & Pr. 340. 58. Upon what theory only may a father maintain an action for an injury done to his infant child f Upon the theory that the father has himself sustained dam- age thereby, as in the loss of the Services of the child, or other- wise. 2 Wait's Law & Pr. 342 ; Reeve's Dom. Rel. 423. 59. Is the amount of damages recoverable by a father, for the seduction of his daughter, measured by the actual value of the ser- vices lost by him in consequence of such seduction ? It is not. The right of action by the father is, by a legal fiction, made to rest on a supposed loss of services arising from the seduction ; but the real ground of action is the injury to the person seduced, and this forms the true measure of damages. Reeve's Dom. Rel. 425 ; 8 Wait's Act. & Def. 464. 60. Define the terms '■'•guardian^'' and '■'■ward." i A guardian is one who has the legal' custody of the person or estate of an infant, or both ; and the person who is under the care of a guardian is called a ward. Reeve's Dom. Rel. 449 ; Tyler on Inf. & Gov. (2d ed.) 235. 61. Who are '■'■testamentary" guardians f A testamentary guardian is one appointed by the last will' and testament of the father or mother of the child. Tyler on Inf. & Gov. (2d ed.) 244. 62. To whom does the guardianship of an infant, vested with an estate in land, belong under the laws of this State ? The guardianship of such infant belongs (1) to the father of the infant ; or, if the father be dead, (2) to the mother ; or, if both father and mother are dead, (3) to the nearest and eldest relative, of full age, not being under any legal incapacity. Tyler on Inf. & Gov. (2d ed.) 243 ; Willard on Ex. & Surr. 444. 63. Can a father appoint a testamentary guardian of a married infant f He cannot. Tyle^ on Inf. Gov. (2d ed.) 248 ; WiUard on Ex. & Surr. 446 ; Redf, Surr. Pr. (3d ed.) 729, 730. 30 Domestic Eelations. 64. In whom is vested the power of appointing general guard- ians, under the statutes of this State ? In the supreme court and in the surrogates of the several counties. Tyler on Inf. & Gov., (2d ed.) 250 ; Redf. Surr. Pr. (3d ed.) 729. 65. What distinction is made by law as to the powers of the sur- rogate and of the supreme court in the matter of the appointment of guardians ? There is no distinction under the present statutes. Code of Civil Pro., § 2821 ; Tyler on Inf. & Cov. (2d ed.) 251. 66. What are the general duties of a guardian ? The statute declares that the guardian shall safely keep the things he may have in his custody, belonging to his ward, and not make or suffer any waste, sale or destruction of such inherit- ance, but shall keep up and sustain the houses, gardens, and other appurtenances of his ward by and with the issues and profits thereof, and with such other moneys belonging to his ward as shall be in his hands, and shall deliver the same to his ward, when he comes to his full age, in as good order and con- dition, at least, as such guardian received the same, inevitable decay and injury only excepted ; and he shall answer to his ward for the issues and profits of real estate received by him, by a law- ful account. Willard on Ex. & Surr. 448 ; Tyler on Inf. & Cov., (2d. ed.) 259. 67. What peculiar right is given to a ward on becoming of age in respect to real estate, purchased hy the guardian with the funds of his ward ? If a guardian exceeds his powers, and converts the personal property of his ward into real estate, or buys land with his ward's money, such ward may, on coming of age, take the land or the money with interest. Willard on Ex. & Surr. 449 ; 3 Wait's Act. & Def. 569 ; Reeve's Dom. Rel. 468. 68. In what manner would you proceed to secure the appoint- ment of a general guardian by the Supreme Court f I would present a petition to the court, subscribed by the infant, if of the age of fourteen years or upward, or, if other- wise, by some relative or friend, stating the age and residence of DoMJSSTlC E/KLAXIOJ^S. 31 the infant, the name, residence and relationship of the proposed guardian, and the nature, situation and value of the infant's es- tate. Rule 62, Sup. Ct. 69 What security is required of a general guardian, ? The amount and character of the security required depends in a great measure upon the discretion of the court. It should be in the form of a bond, in a penalty of double the amount of the personal estate of the ward, and of the gross amount or value of the rents or profits of the real estate during his minor- ity. This bond may be signed by two sureties, or the guardian may give instead, security by way of mortgage ou unincum- bered real estate, of the value of the penalty of the bond. Rule 54, Sup. Ct. 70. What security is required of a guardian of the property of an infant, where the appointment is made hy a surrogate^ s court ? I The person appointed as guardian must execute to the in- fant, and file with the surrogate, his bond, with at least two sureties, in a penalty, fixed by the surrogate, not less than twice the value of the personal property, and of the rents and profits of the real property, conditioned that the guardian will in all things faithfully discharge the trust reposed in him, and obey all lawful directions of the surrogate touching the trust, and that he will in all respects render a just and true account of all money and other property received by him, and of the applica- tion thereof, and of his guardianship, whenever he is required so to do by a court of competent jurisdiction. The surrogate may in his discretion limit the amount of the bond to not less than twice the value of the personal property and of the rents and profits of the real property for the term of three years. Code of Civil Pro. § 2830 ; Redf. Burr. Pr. (3d. ed.) 737. 71. ^a guardian enters into a contract for the support of his ward, is the ward bound by the contract ? He is not ; but the guardian is personally liable on the con- tract. 8 Wait's Act & Def. 294. 72. Is the guardian liable for the torts of his ward? He is not. 8 Wait's Act. & Def. 295. 32 Domestic EiElations. 73. When, and how often, must a general guardian a-ppointedhy a surrogate's court file with the surrogate an inventory and ac- count ? A general guardian of an infant's property must file an in- ventory and account in the month of January in each year, so long as any of the infant's property or its proceeds remains under his control. Code of Civil Pro. § 2842. 74. Where one person employs another to do certain worh, and no express agreement is made as to the amount of compensation, how will the question of compensation he determined? In the absence of an express agreement as to the amount of compensation, the law will imply or promise, by the employer, to pay what the services are reasonably worth. 2 Wait's Law and Pr. (5th. ed.) 352. 75. If A agrees to work for B for six months, for sixty dollars, hut ceases to work at the expiration of two months, on account of se- curing a more lucrative position elsewhere, can he recover from B the value of his services for two months, at ten dollars per month? He cannot. It would be otherwise if he had been prevented from fulfilling his contract by sickness or inevitable accident. Reeve's Dom. Rel. 493, note ; 1 Wait's Law & Pr. (5th. ed.) 226, 234. 76. Would the rights of the parties have heen changed if A had been an infant? They would. In that case the infant would recover the value of the services rendered, without regard to the express contract. 1 Wait's Law & Pr. (5th. ed.) 234. 77. What remedies are available to a contractor whose contract to do certain work at a stipulated price has heen terminated hy his employer against his will ? He may bring an action to recover the contract price for the work done ; or, he may bring an action for a breach of the agree- ment, and recover, as damages, the profits he would have made if allowed to complete the work ; or, he may waive the contract, and bring his action for work and labor generally, and recover what the work was actually worth. 1 Wait's Law & Pr. (5th. ed.) 237, 238. Domestic Eelations. 33 78. What is the general rule as to the liability of a master for the aots of his servant ? As a general rule, a master will be liable for the torts of his servant, where the tortious acts are done in the immediate pur- suit of the master's business. Reeve's Dom. Rel. 508. 79. A, the servant of'B, while employed in driving a dray for his master, conceives that is unnecessarily obstructing his way, and thereupon leaves his dray standing in the road and assaults C ; O thereupon brings an action against B for the damages aris- ing from the wrongful act of his servant. A; can he recover? He cannot, upon the principle that, when a servant loses sight of the object for which he was employed, and without hav- ing in view his master's orders, pursues that course which his own malice suggests, he no longer acts in pursuance of the au- thority given him, and his master will be no longer answerable for such act. Reeve's Dom. Rel. 518, 521. 80. Upon what 'principle does the liability of a master depend, for injuries arising from the carelessness, negligence or want of shill of his servant ? Upon the principle that it is the duty which a master owes to himself and others, that he shall employ careful servants. Reeve's Dom. Rel. 509, 517. 81. A railroad corporation, after having for a long time had in their employ a switchman, who was careful and trusty in his gener- al character, employed an engineer to run a train of cars upon their road, who hnew of the character and employment of the switch-, man. The engineer was subsequently injured by an accident aris-^ ing from the carelessness of the switchman in leaving a misplaced switch ; can the engineer recover the damages so sustained in an action against the railroad corporation f ■ He cannot. No action can be sustained against the master of a servant, for an injury received in the course of £he service from the negligence of a fellow servant, where such injury oc- curs without any fault or misconduct on the part of the master. Reeve's Dom. Rel. 509, 516, note ; 4 Wait's Act. & Def. 414 ; 8 id. 395. 82. What would have been the rule if the engineer had been in 3 34 Domestic Eblations. the employ of another corporation, entitled to use the track of the corporation employing the switchman, and the accident had occurred as above stated ? The engineer could recover damages of the corporation own- ing the track for the injury caused by the negligence of their servant. Reeve's Dom. Rel. 510, note. 83. State generally the duty which a master owes to his servant in providing for his safety in the prosecution of his work ? A master owes to his servant the duty of furnishing adequate and suitable tools and implements for his use, a safe and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor and assist in the performance of his duties. 4 Wait's Act. & Def. 416 ; 8 id. 392-395. 84. If an injury to an employee is caused partly by the negligence of another employee and partly by the failure of the employer to provide proper and suitable apparatus, will the negligence of the co- ^ servant exonerate the employer from the consequences of his ownde-- fault ? It will not. The negligence of the master co-operating with that of a servant in producing injury to a co-servant renders the master liable. 8 Wait's Act. & Def. 396 ; 2 Wait's Law & Pr. (5th ed. ) 604. 85. What limitation is there to the general proposition that a ser- vant on entering the employment of a master assumes the risks of the service? The risks of the service which the servant assumes in enter- ing the employment of a master are those only which occur after the due performance by the master of the duties which the law enjoins upon him. 8 Wait's Act. & Def. 396. 86. Ifa^unicipal corporation, through its officers, enter into a contract to have certain work done, and to pay for the same on its completion in a specified manner, will the corporation be liable for damages caused by the negligence of the workmen employed by the contractor in performing the work ? It will not, for the reason that the relation of master and servant does not exist between the corporation and the work- Domestic Eelations. 35. men employed by the contractor. Eeeve's Dom. Rel. 511, note. 87. Upon what theory or for what reason would you decide that the relation of master and servant did not exist in the case above given between the corporation paying for, and the laborer perform- ing, the work ? Upon the theory that the corporation had power to direct as to the result of the work merely, but not as to the manner of its performance ; and that the power to direct the mode of doing any particular act is essential to the relation of master and ser- vant. Reeve's Dom. Rel. 511, note. 88- What remedies has a servant, employed for a definite term, who has been discharged by his master without legal cause before the expiration of the term ? He may sue at once to recover such wages as were due and payable under the contract at the time of the wrongful discharge, and he may maintain a separate action to recover his damages for the wrongful dismissal. 8 Wait's Act. & Def. 299. 89. Can a servant, in an action for wrongful dismissal, recover, as part of his damages, wages which were due and payable at the time of his discharge P He cannot ; but he may recover such wages as were earned but were not due under the contract at that time. 8 Wait's Act. & Def. 300. 36 COBPOKATIONS, CHAPTER IV. CORPORATIONS. 1. What is a corporation? A corporation is a body, created by law, composed of indi- viduals united under a common name, the members of wMch succeed each other, so that the body continues the same, notwith- standing the change of the individuals who compose it, and is, for certain purposes, considered as a natural person. Angell & Ames on Corp. Int., § 1 ; 2 Kent's Com. 266 ; 2 Wait's Act. & Def. 304, Boone on Corp. § 1. 2. State the object and use of corporations. The object in creating a corporation is to gain the union, contribution and assistance of several persons for the successful promotion of some design of general utility, though the cor- poration may, at the same time, be established for the advan- tage of those who are members of it. Much of the most import- tant business which requires an extensive capital is done by cor- porations. Angell & Ames on Corp. Int., § 13 ; 1 Wait's Law and Pr. (5th. ed.) 467 ; Boone on Corp. § 5. 3. Crive some instances of the purposes for which corporations are formed. Some of the more frequent instances are those which relate to banking, life, marine and fire insurance, steamboats, steamships, railroads, plankroads, turnpikes, bridges, canals, literary societies, trading companies, gaslight and telegraph associations, and others of a similar character. 1 Wait's Law and Pr. [5th. ed.J 467. 4. Fo whom belongs the honor of originating corporate bodies ? The honor of the invention is, by Sir William Blackstone, given to the Romans, and corporations were certainly well known to the Roman law and existed from the earliest periods of the Roman COKPOKATIONS. 37 republic ; but, it appears, they were borrowed from the laws of Solon, who permitted private companies to institute themselves at pleasure, provided they did nothing contrary to the public law. 2 Kent's Com. 268 ; 1 Shars. Bl. Com. 468. 5. From whence did the English law derive the principles of law applicable to corporations f It is evident they were borrowed chiefly from the Roman law, and from the policy of the municipal corporations estab- lished in Britain and the other Roman colonies, after the coun- tries had been conquered by the Roman arms. Corporations for the advancement of learning were, however, entirely unknown to the ancients and they are the fruits of modern invention. The first appearance in any public document of the terms cor- poration and body corporate, was in the reign of King Henry IV, The first charter of incorporation to a municipal body was granted under Henry VI. 2 Kent's Com. 271 ; Angell & Ames on Corp., §§ 48, 50. 6. How are corporations divided ? The first division of corporations is into aggregate and sole. Another division by the English law, is into ecclesiastical and lay. Lay corporations are again divided into eleemosynary and civil, and civil corporations ^xq %\!Cs\&x public or private. 1 Shars. Bl. Com. 469; 2 Kent's Com. 274, 275; 2 Wait's Act. & Def. 306 ; Boone on Corp., § 6. 7. What does a corporation sole consist of? A corporation sole consists of a single person, who is made a body corporate and politic, in order to give him some legal ca- pacities and advantages, and especially that of perpetuity, which, as a natural person, he could not have. A bishop, dean, parson and vicar are given as instances, in the English books, of sole corporations. 2 Kent's Com. 273 ; 2 Wait's Act & Def. 307 ; Boone on Corp., § 6. 8. What is a corporation aggregate ? A corporation aggregate is a collection of individuals united in a body under such a grant of privileges as secures a succes- sion of members without changing the identity of the body. 2 Wait's Act & Def. 306 ; Boone on Corp., § 6. 38 COKPOBATION'S. 9. What are ecclesiastical corporations? They are such as are composed of members who take a lively interest in the advaricenient of religion, and who are associated and incorporated for that object. They may be either sole or aggregate. With us they are called religious corporations. 2 Kent's Com. 274 ; Angell & Ames on Corp., § 36 ; Boone on Corp., § 6 ; 2 Wait's Act. & Def. 307. 10. For what purpose are eleemosynary corporations constituted f They are private charities, constituted for the perpetual dis- tribution of the alms and bounty of the founders. In this class are ranked hospitals for the relief of poor, sick and impotent persons, and colleges and academies established for the promo- tion of learning and piety, and endowed with property by public and private donations. 2 Kent's Com. 274 ; 1 Shars. Bl. Com. 471 ; 2 Wait's Act. & Def. 307 ; Boone on Corp., § 6. 11. For what purposes are public corporations created? They are created by ihe government, for political purposes, as counties, towns, villages and cities. They are invested with subordinate legislative powers, to be exercised for local purposes connected with the public good, and such powers are subject to the control of the legislature of the State. In the popular mean- ing of the term, nearly every c ^rporation is public, inasmuch as they are all created for the public benefit. 2 Kent's Com. 275 ; 1 Shars. Bl. Cora. 469w ; Boone on Corp., §, 7, 8. 12. What do private corporations include? They properly include all not embraced under public corpo- rations, as religious, literary, charitable, manufacturing, insuring or money-lending associations, as well as railway, canal, bridge, turnpike companies, etc. 1 Shars. Bl. Com. 469 ; 2 Wait's Act. & Def. 308 ; Boone on Corp., § 9. 13. What is the main distinction between public and private corporations ? The legislature, as the trustees or guardians of the public interests, has the exclusive and unrestrained control over the former ; and, acting as such, as it may create, so it may modify or destroy, as public exigency requires or recommends, or the pub- COBPOKATIONS. ' 39 lie interest will be best subserved. Private corporations, on the other hand, are created by an act of the legislature, which, in connection with its acceptance, is regarded as a compact, and one which, so long as the body corporate faithfully observes, the leg- islature is constitutionally restrained from impairing, by annex- ing new terms and conditions, onerous in their operation, or in- consistent with a reasonable construction of the compact. An- gell & Ames on Corp., § 31 ; 2 Kent's Com. 275. 14. -By whom are corporations created ? In England they are created and exist by prescription, by royal charter, and by act of parliament. In this country they lare created in no way, but by authority of the legislature. No particular form of words is requisite to create a corporation. 2 Kent's Com. 276 ; 1 Shars. Bl. Com. 472 ; 2 Wait's Act. & Def. 309. 15. Is it necessary for a corporation to have a name ? It is ; for without a name it could not perform its corporate functions ; and a name is so indispensable a part of the constitu- tion of a corporation, that if none be expressly given, one may be assumed by implication. 2 Kent's Com. 292 ; Angell & Ames on Corp., § 90 ; 1 Shars. Bl. Com. 474, 475 ; Boone on Corp., § 29 ; 2 Wait's Act. & Def. 312. 16. What are the powers incidental to every corporation ? Writers on the subject enumerate the following : 1. To have perpetual succession, and, of course, the power of electing mem- bers in the room of those removed by death or otherwise ; 2. To sue and be sued, and to grant and to receive by their corporate name ; 3. To purchase and liold lands and chattels ; 4. To have a common seal ; 5. To make by-laws for the government of the corporation ; 6. The power of amotion, or removal of members. 1 Kyd. on Corp. 69, 70 ; 2 Kent's Com. 78 ; 1 Shars. Bl. Com. 475 j Angell & Ames on Corp. § 110 ; Boone on Corp. § 37. 17. What are quasi corporations ? There are some persons and associations who have a corpo« rate capacity only for particular specified ends, but who can in that capacity sue and be sued as an artificial person. These bodies are termed quasi corporations. Each county and the 40 COKPOKATIONS. supervisors of a county, each town, and trustees of school districts, commissioners of highways and overseers of the poor, may be given as instances. 2 Kent's Com. 279 ; 1 Shars. Bl. Com. 469 ; 1 Wait's Law & Pr. (5th. ed.) 478. 18. When a corporation is said to be a person, in what sense is the expression to he understood ? It is to be understood in a limited sense, for a corporation is strictly a political institution, and can be understood to be a per- son only in certain respects, and for certain purposes. It cannot be deemed a moral agent, and therefore, it cannot commit a crime or become the subject of punishment, or take an oath, or appear in person, or be arrested or outlawed. 2 Kent's Com. 279 ; 1 Shars. Bl. Com. 477. 19. In what way has it been demonstrated that corporations have no souls ? It is reported by Lord Coke, that Chief Baron Manwood demonstrated it, in the following manner : " None can create souls but God ; but a corporation is created by the king ; there- fore, a corporation can have no soul." It is in this view that a corporation cannot be guilty of a crime, as treason or felony. 1 Kyd. 71 ; 2 Bulst. 233. 20. What is meant by immortality of a corporation ? The immortality of a corporation means only its capacity to take in perpetual succession so long as the corporation exists ; and so far is it from .being literally true that a corporation is immortal, that many corporations of recent creation are limited in their duration to a certain number of years. When it is said, therefore, that a corporation is immortal, it must be understood theoretically ; that is, that it may exist for an indefinite duration. Angell & Ames on Corp., § 8 ; 2 Kent's Com. 267 ; 2 Wait's Act. & Def. 305. 21. Are corporations deemed competent to perform the duties of trustees ? They are ; and are also regarded as proper and safe desposi- tories of trusts. And among the almost infinite variety of pur- poses for which corporations are created at the present day, we COKPOBATIONS. 41 find them authorized to receive and take by deed or devise, in their corporate capacity, any property, real and personal, in trust, and to assume and execute any trust so created and declared. 2 Kent's Com. 280 ; Angell & Ames on Corp. § 168. 22. What right have corporations as to taking, holding and transmitting property P Every corporation aggregate, in order that it may be ena- bled to answer the purposes of its creation, has, incidentally at common law, a right to hold and transmit in succession, prop- erty, real and personal, to an unlimited extent or amount. Thus, a grant of lands from the sovereign authority to the in- habitants of a county, town, or hundred, rendering rent, would would create them a corporation for that single intent, or confer upon them a capacity to take and hold the lands in a corporate character, without saving to them and their successors. 2 Kent's Com. 281 ; Angell & Ames on Corp., § 145 ; 2 Wait's Act & Def. 315 ; 8 id. 187 ; Boone on Corp. § 40. 23. Sow do corporation make contracts ? There are two general modes in which they may expressly contract, first by vote, and secondly by their duly authorized agents. On account of the inconvenience ^f the former mode, the latter is usually adopted. 2 Kent's Com. 289 ; Angell & Ames on Corp., §§ 228, 231 ; Boone on Corp. § 44. 24. Can a corporation have a legal existence out of the sovereignty hy which it is created? It cannot ; for the reason that it exists only in contempla- tion of law, and by force of law ; and when that law ceases to operate, and is no longer obligatory, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty. Its residence in one State creates, however, no insuperable objection to its power of contracting in another. Angell & Ames on Corp., § 161 ; 2 Wait's Act. & Def. 312 ; 8 id. 185 ; Boone on Corp. § 33. 25. So what extent are corporations hound hy the acts of their agents ? Corporations, like natural persons, are bound only by the acts and contracts of their agents, done and made within the 42 COBPOBATIONS. scope of their authority. It is the settled doctrine that corpora- tions can now be bound by contracts made by their agents, with- in the scope of their authority, though the same be not under seal. 2 Kent's Com. 291; Angell & Ames on Corp., § 292; 2 Wait's Act. & Def. 344 ; 8 id. 189. 36. How do corporations appoint their agents? They may be appointed under the corporate seal or by res- olution or vote ; and either of these modes will be legal, even though the agent be appointed to convey the real estate of the corporation, or whatever may be the purpose of the agency. Angell & Ames on Corp., § 283, Wait's Act. & Def. 219. 27. When the agent of a corporation desires to hind the corporor tion only hy a contract he makes in its behalf, what is the proper mode to he adopted ? His proper mode is to name the corporation, in the body of the contract, as the contracting party, and to sign as its agent or officer ; and this is the mode in which bank bills and policies of insurance are ordinarily executed. Angell & Ames on Corp., § 293, Boone on Corp. § 133. 28. May a contract of a corporation he implied from the acts of the corporation? It may, or such contract may be implied from the acts of the authorized agent ; and, in general, if a person, not duly authorized, makes a contract on behalf of a corporation, and the corporation take and hold the benefit derived from such contract, it is estopped from denying the authority of the agent. 1 Pars, on Cont. 118 ; Angell & Ames on Corp., § 304 ; 1 Wait's Law & Pr. (5th. ed.) 486 ; 2 Wait's Act. & Def. 318, 8 id. 189. 29. What is necessary in order to hind a corporation hy specialty 1 It is necessary that its corporate seal should be affixe'd to the instrument. The corporate seal is the only organ by which a body politic can bind itself by deed ; and, though its agents affix their private seals to a contract binding upon it, yet these, not being seals as regards the corporation, it is, in such case, bound only by simple contract. Angell & Ames on Corp. § 295 ; 1 Pars, on Cont. 119; 2 Wait's Act. & Def. 325. COBPOBATIONS. 43 30. From whence do corporations derive the power to make by- laws ? The power is either expressly given by the act of incorpora- tion, or is tacitly annexed, as being necessarily incident to cor- porate bodies to enable them to fulfil the purposes of their in- stitution ; and when the objects of the power, and the persons who are to exercise it are not specially defined in the charter, it is necessarily limited in its exercise to those purposes, and resides in the body politic at large. 2 Kent's Com. 296 ; 2 Wait's Act. & Def. 326. 31. Who has a right to give laws to eleemosynary corporations f These corporations are the mere creatures of their founder, and he alone has a right to prescribe the regulations, according to wliich his charity shall be applied. His statutes are accord- ingly their laws, which they have no power to alter, modify or amend. Angell & Ames on Corp., § 330 ; 1 Shars. Bl. Com. 482. 32. What restrictions exist upon the legislative power of a cor- poration ? The corporate powers of legislation must be exercised strictly within the limits of its charter; and in perfect subordination to the constitution and general law of the land, and the rights de- pendent thereon. The general rule is, that, whenever a by-law seeks to alter a well-settled and fundamental principal of the common law, or to establish a rule interfering with the rights, or endangering the security, of individuals or the public, a statute or other special authority, emanating froni the creating power, must be shown to legalize it, either expressly or by implication. 2 Kent's Com. 295 ; Angell & Ames on Corp. § 335. 33. Crive the distinction between disfranchisement and amotion? Disfranchisement is applicable only to the rights of a member of a corporation as- such ; but the term " amotion " applies only to such members as are officers ; and, consequently, if an officer be removed for good cause, he may still continue to be a member. 2 Kent's Com. 297 ? Angell & Ames on Corp. § 408. 34. Are corporate powers strictly or liberally construed? As corporations are the mere creatures of law, established 44 COKPOBATIONS. for special purposes, and drive all their powers from the acts creating them, it is perfectly just and proper that they should be obliged strictly to show their authority for the business they assume, and be confined in their operations to the mode and man- ner and subject-matter prescribed. Thus, unless authority is given in its charter, or in the act of incorporation, or by general statute, a corporation can neither issue bills, discount notes, re- ceive deposits nor loan money. 2 Kent's Com. 299 ; 1 Wait's Law & Pr. (5th. ed.) 481. 35< Is it neceessary that the corporate seal he impressed upon wax or other tenacious substance, in order to make it valid ? Such is the rule at common law ; but this rule has been changed by statute in this State, and the seal of a corporation is now valid, although it is merely impressed upon the paper. 1 Wait's Law & Pr. (5th. ed.) 486. 36. Does the law make any distinction between natural persons and corporations, so far as civil liabilities are concerned ? It does not. Each is legally bound to fulfil all proper duties and obligations, and each is liable for a neglect of such duties or for a breach of its obligations. Whenever any officer or agent of a corporation commits any wrongful act, while in the discharge of his duties as such officer or agent, the corpo- ration is liable to respond in damages for the injury done. 1 Wait's Law & Pr. (5th. ed.) 488 ; 2 Wait's Act. & Def. 337 ; Sid. 190. 37. When the charter of a corporation provides that contractB shall be made in writing, will a verbal contract, entered into by such corporation, be valid ? It will not, nor will it bind the corporation ; but unless some statute, or some rule of law, or the charter, requires the agreement to be in writing, it may be verbal. 1 Wait's Law & Pr. (5th. ed.) 497 ; Apgell & Ames on Corp. § 253. 38. In what ways may corporations be dissolved f A corporation may be dissolved by statute, by the loss of all its members, or of an integral part, by death or otherwise, by surrender of its franchises, and by forfeiture of its charter CoitPOKATIONS. 45 through negligence or abuse of the privileges conferred by it. To these may be added the dissolution of a corporation by ex- piration of the term of of its duration, limited by charter or general law, which is quite common in this country. 2 Kent's Com. 305 ; Angell & Ames on Corp. § 766 ; Boone on Corp., § 197 ; 2 Wait's Act. & Def . 347. 39. When is a corporation dissolved from the death of its memr hers f When, from death or disfranchisment, so few remain that, by the constitution of the corporation, they cannot continue the succession, to all purposes of action at least, the corporation it- self is dissolved. As long, however, as the remaining corpora- tors are sufficient in number to continue the succession, the body remains. Angell & Ames on Corp. § 768 ; 2 Kent's Com. 308 ; Boone on Corp., § 199. 40. To whom do the lands and tenements of a corporation re- vert, upon its dissolution ? At common law, upon the civil death of a corporation, all its real estate remaining unsold reverts to the grantor and his heirs, for the reversion, in such an event, is a condition annexed by the law, inasmuch as the cause of the grant has failed. 2 Kent's Com. 307; 1 Shars. Bl. Com. 484; 2 Wait's Act & Def. 350. 41. What becomes of the personal estate of the corporation upon its dissolution ? The personal estate, in England, vests in the king, and in our own country, in the people or State, as succeeding to this right and prerogative of the crown. The debts due to and from the corporation are all extinguished. Neither the stockholders nor the directors or trustees of the corporation can recover those debts, or be charged with them, in their natural capacity. Angell & Ames on Corp., § 779 ; 2 Kent's Com. 307 ; 2 Wait's Act. & Def. 350 ; Boone on Corp., § 207. 42. Sow are these rules of the common law usually modified? They are usually modified by charter or statute, and the rule, in relation to the effect of dissolution upon the property and debts 46 COKPOKATIONS. bf a tsorporation, has, in fact, become obsolete and odious. In this country its unjust operation upon the rights of both creditors and stockholders of insolvent or dissolved monej'ed corporations, is almost invariably arrested by general or special statutory pro- ' visions. Angell & Ames on Corp., § 779 ; 2 Wait's Act. & Def. 350, 351 ; Boone on Corp., § 207. 43. May a corporation he revived after its dissolution ? In England the king may, either by grant or by proclama- tion under the great seal, revive or renovate the old corporation, or by grant or charter create a new one in its place. If the old corporation be revived, all its rights and its responsibilities are, of course, revived with it ; but if the grant operate as a new creation, the new corporation cannot be subject to the liabilities nor possess the rights of the old. Angell & Ames on Corp., § 780 ; Boone on Corp., § 211 ; 2 Wait's Act. & Def. 351. 44. If a corporation should he guilty of acts or omissions which would work a forfeiture of its charter, would this he a defense in an action by the corporation? It would not ; and, until the charter expires by its own limitation, or is annulled by the judgment of a proper court, it must be considered in full force in all actions between the cor- poration and individuals. 2 Wait's Act. & Def. 349, 351 ; Boone on Corp., § 203. 45. Is delivery necessary to the complete execution of the deed of a corporation ? It is not, since it is said to be perfected by the mere affixing of a common seal. This rule is to be taken, however, with the im- portant qualification that, by the affixing of the seal, the complete execution of the deed was intended. Angell & Ames on Corp., §227. 46. May hodies corporate make contracts of hailment? They may, the same as natural persons, provided it be done in the course of business permitted or contemplated by their charters. Thus, incorporated stage-coach companies may be liable as common carriers ; and banks sue every day as lenders, and are sued as depositaries, borrowers, etc. Angell & Ames on Corp., 241. COKPOKATIONS. 47 47. What is the distinction between a corporate act to he don6 hy a select and definite body, as by a board of directors, and one to be performed by the constituent members ? In the latter case a majority of those who appear may act, but in the former a majority of the definite body must be present, and then a majority of the quorum may decide. This is the general rule on the subject, and if any corporation has a different modification of the expression of the binding will of the corpora- tion, it arises from the special provisions of the act or charter of incorporation. 2 Kent's Com. 293 ; 1 Shars. Bl. Com. 478. 48. Is it necessary that corporations should be named, in order to be embraced within the terms of an act, to subject them to its pro- hibitions ? It is not ; for it is well settled that the words inhabitants, occupiers or persons, may include incorporated companies. 1 Wait's Law & Pr. (5th. ed.) 467 ; 2 Wait's Act. & Def. 305. 49. What is the general rule, as to the extent of the power of a corporation to make contracts, in the absence of any provision on the subject by general statute, or in the charter or act of incorporation P In such case the corporation has power to make all such contracts as are necessary and usual in the course of business, as means to enable it to attain the object for which it was created but none other. Thus the right to purchase property, and do other acts relating to the corporate business, necessarily implies a right to create debts in the transaction of the affairs of the company. 1 Wait's Law & Pr. (5th. ed.) 482 ; Angell & Ames on Corp., § 271 ; 2 Wait's Act. & Def. 318 ; Boone on Corp., § 43. 50. What is the general rule, as to the power of a corporation to sue ? It is now well settled ^hat corporations, whether public or private, may commence and prosecute actions upon all prom- ises and obligations, implied, as well as expressed, made to them which fall within the scope of their design, and the authority conferred upon them. Angell & Ames on Corp., § 370. 48 CORPOKATIONS. 51. May a corporation sustain a suit, beyond the the jurisdic- tion within which it is constituted f It may ; and to do this it is only necessary to show that it has been regularly and effectually made a corporate body. 2 Kent's Com. 284 ; Angell & Ames on Corp., § 372. ' 52. May corporations make valid indorsements of accommoda- tion notes for other persons or corporations, in which they have no interest ? They cannot; but a corporation which owns paper may in- dorse it, and procure it to be discounted for its own use. And when it represents that a note belongs to itself, when, in fact, such note belongs to a third person, the corporation will be liable if the note is discounted in good faith by the bank or person ad- vancing the money. 1 Wait's Law & Pr. (5th. ed.) 497, 498. 53. is notice given to an agent of a corporation sufficient notice to the corporation? Notice to an agent of a corporation who is intrusted with the management of its business, or of a particular branch of its busi- ness, is, as a general rule, notice to the corporation in transactions conducted by such agent, acting for the corporation, within the scope of his authority, whether the knowledge of such agent was acquired in the course of the particular dealing, or on some prior occasion. 8 Wait's Act. & Def. 59. 54. Is notice to a director of a corporation, notice to the corpora- tion ? It is not in all cases. If knowledge is acquired by a director in his official capacity, the corporation is presumed to have it; but if the knowledge is acquired as any private person might have acquired it the corporation is not chargeable with it. 8 Wait's Act. & Def. 59 ; 1 Wait's Law & Pr. (5th. ed.) 499. 55. Are corporations liable for torts committed by their agents ? A corporation is liable for the torts of its agent committed while engaged in the business of the agency, to the same extent and under the same circumstances that a natural person would be liable for the tort of an agent. 1 Wait's Law & Pr. (5th. ed.) 489 ; 2 Wait's Act. & Def. 337 ; 8 id. 190, 191 ; Boone on Corp., §78. I'HB Law of Eeal Peopebiz. "** CHAPTER V. THE LAW OF REAL PROPERTY. 1. Grive the general divisions of property ? Property is divided into two classes, things real and things personal ; or, in other words, into real and personal property. % Bl. Com. 14. 2. Define the words " real property" as used in law ? ~ The words " real property," are used in law to express that iind of property which is known under the terms lands, tene- ments and hereditaments. Willard on Real Estate, 47 ; 2 Bl. Com. 16 ; 3 Kent's Com. 401 ; Laws of 1873, ch. 530 ; 3 Rev. Stat. <7th. ed.) 2206, § 10 ; Code of Civil Pro., § 3343. 3. What is the distinction between real and personal property ? Real property consists of things substantial and immovable, ;and of the rights and profits annexed to, or issuing out of them. Personal property consists of money, goods and other movables, and such rights and profits as relate to movables. 2 Bl. Com. 15. 4. If certain lands he conveyed to a purchaser, and no notice he taken in the conveyance of any buildings upon or mines or minerals under the land, would such mines, buildings and minerals pass to the purchaser f State any legal maxim applicable to the question. They will pass to the purchaser ; for the ownership of land carries with it every thing above and below the surface, the: maxim being Oujus est solum, ejus est usque ad ooelum. Willard on Real Estate, 47 ; 2 Bl. Com. 18. 5. Suppose A grants a piece or pool of water to B, what is the extent of S's estate therein ; and what words should be used to assure the freehold of it to a purchaser ? On the grant of a certain piece ofjvater, the right of fishing 4 50 The Law of Beal PsoyBRT. passes, but not the soil. To assure the freehold of it to the pur- chaser, it should be conveyed as so many acres of land covered ■with water. 2 Bl. Com. 18. 6. Define the word " tenement f " Tenement is a word of more comprehensive signification than land, and signifies every thing that may be holden, provided it be of a permanent nature, whether it be of a substantial and sen- sible, or of an unsubstantial ideal kind. Willard on Real Estate, 47 ; 2 Bl. Com. 17 ; 3 Kent's Com. 401. 7. What do you understand by the word " hereditament? " It is the most comprehensive word that is used in deeds j for it includes not only lands and tenements, but also whatever may be inherited, be it corporeal or incorporeal, real, personal or mixed. Willard on Real Estate, 47; 2B1. Com. 17; 3 Kent's Com. 401. 8. Chive the distinction between corporeal and incorporeal heredi- taments ? Corporeal hereditaments consist wholly of substantial per- manent subjects, such as affect the senses, and may be seen and handled by the body, and are, in fact, the same as land ; while incorporeal hereditaments are such subjects as do not affect the senses, but exist in the mind only, as rents, commons, ways and: the like. Willard on Real Estate, 47 ; 2 Bl. Com. 17, 20 ; 3 Kent's Com. 401, 402. 9. What is a chattel real? Any estate in lands which does not amount to a freehold is a chattel real. It is called a chattel real because it concerns or savors of the realty ; also to distinguish it from things which have no concern with the realty. Willard on Real Estate, 49, 81j- 2 Wait's Act. & Def. 219. 10. What is a chattel personal ? Chattels personal consist of mere movables, and the rights connected with them. 2 Wait's Act. & Def. 219. 11. What do you understand by an estate in land ? It is the interest which, the owner has ^in the land. It. does The Law os" Real Propeett. 51 iot properly denote the land itself, but the peculiair riglit which the owner may exercise therein. Willard on Real Estate, 47 ; 2 Bl. Com. 102. 12. What is tfie distinction between the quantity and the quality of an estate ? The quantity of an estate signifies the time of continuance Or degree of interest ; the quality of an estate has reference to the manner of its enjoyment, as whether it be absolutely, solely, in common, in coparcenary, or in joint tenancy. Willard on Real Estate, 48. 13. How are estates in lands divided and distinguished hy the statutes of this State ? Estates in lands are divided into estates of inheritance, estates for life, estates for years, and estates at will and by suf- ferance. Willard on Real Estate, 48. 14. What is an estate in fee simple f It is the largest estate or interest which the law allows any person to possess in landed property. It is the entire and abso- lute interest and property in the lands. Willard on Real Estate, 49; 4 Kent's Com. 3, 5. 15- What estates are termed freehold estates? Estates of inheritance and for life are termed estates of freehold ; and an estate during the life of a third person, whether limited to heirs or otherwise, is termed a freehold during the life of the grantee or devisee, but after his death, is deemed a chattel real. Willard on Real Estate, 49 ; 4 Kent's Com. 23, 24. 16. What is the largest, and what is the smallest estate offree- .hold, of which a man can he seized ? An estate in fee simple is the largest, and an estate for the life of another, is the smallest estate of freehold of which a man can be seized. Willard on Real Estate, 49, 56 ; 4 Kent's Com. 5, 26. 17. Describe an estate of inheritance ? An estate of inheritance is where the tenant is not only entitled to enjoy the land for his own life, but where, after his 62 I'he Law of Eeal Pkopeety. death, it is cast by the law upon the persons who successiTclj represent him in perpetuam in right of blood, according to an. established order of descent. 18. What is an estate tail? An estate tail is an estate of inheritance, which can descend only to some particular heir of the person to whom it is granted, and not to his heirs generally. Willard on Real Estate, 53 • 2 Bl. Com. 112. 19. State the different hinds of estates tail ? Estates tail are either general or special. The first is where lands and tenements are given to one, and the heirs of his body, without further restriction ; and the second is where the gift is restrained to certain heirs of the donee's body, and does not go to all of them in general. 2 Bl. Com. 113 ; Willard on Real Estate, 58. 20. What change was effected in the laws relating to entailed estates hy the Revised Statutes of 1830 ? The statutes of that year abolished all estates tail, and pro- vided that every estate which would have been adjudged a fee tail prior to 1782, should hereafter be adjudged a fee simple; and if no valid remainder be limited thereon, should be a fee simple absolute ; but that where a remainder in fee is limited upon such an estate, such^remainder should be valid as a contingent limita- tion upon a fee, and should vest in possession on the death of the first taker without issue living at the time of such death. Willard on Real Estate, 48 ; 4 Kent's Com. 14, 15. 21. Do the statutes of this State recognize defeasible or con- ditional fees as existing estates ? They do. Willard on Real Estate, 52, 54. 22. If A conveys an estate to B and his heirs until the marriage of 0, what would be the effect of the death of before marriage f The effect of the death of C. before his marriage would be to change the estate of B., which was before a determinable fee, into a fee simple absolute, for the reason that the event on which the determination of the estate depended, viz., the marriage of B having become impossible by the act of God, the period for the The Law of Ebal Property. 53; determination; of estate can never arise. Willard on Real Estate, 55; 4 Kent's/ Com. 9. 23. What quantity o'^ interest is conveyed with an estate for lije? A freehold interest, an estate for life being a freehold not of inheritance. Willard on Real Estate, 48, 55. 34. State the two different modes hy which a life estate may be created, and classify the estates created under each ? Life estates may be created (1) by the act of the parties, as by deed, and (2) by the operation of law. The estates which may be created by deed, are (1) an estate for the life of the ten- ant, and (2) an estate for the life of another person or persons. The estates which may be created by operation of law, are (1^ an estate by the curtesy of. England, and (2) an estate in dower. 4 Kent's Cora. 24-26. 35. If A grants or assigns a parcel of land '•Ho B and his assigns forever,^'' what estate would B take at common law, and what estate will he take under the statutes of this State ? At common law B would take only a life interest on account of the omission of the word " heirs ; " but under the statutes of this State the entire estate of A would pass to B, as it is no longer necessary to use the word " heirs " to convey a fee, and it is necessary in order to convey a life estate, that the intent to create such an estate should be expressed in the conveyance. Willard on Real Estate, 56 ; 4 Kent's Com. 5, 6. 36. What terms are usually employed to distinguish a person who holds an estate for the term of his own life from a person who holds an estate for that of another f A person who holds an estate for the term of his own life is called a tenant for life ; while a person who holds an estate during the life of another is usually called a tenant pur auter vie. 2 Black. Com. 120. 27. If A having a life estate in lands conveys it to B and to his heirs and assigns forever, what estate will B take hy the con- venance f As A. can.convey no greater estate than he possesses, B. will 64 The Law of Seal Propebtt. take an estate ^er auter vie, and notwithstanding the words of perpetuity, the estate will be determined by the death of A.~ Willard on Real Estate, 57 ; 4 Kent's Com. 10. 28. What change in the character of the estate will he effected by the death of the tenant per auter vie, before the death of the cestui que vie f The effect of the death of a tenant for the life of another is to change the character of the estate from a freehold to a chattel real, and the estate instead of preserving its distinctive charac- ter as real estate, becomes assets in the hands of the executors or administrators of the deceased, and is inventoried, applied, and distributed as a part of his personal estate. Willard on Real Estate, 57 ; 4 Kent's Com. 27. 29. What is an estate by the curtesy f It is a life estate which the law gives to the husband in the land of which his wife was seized in fee, upon her death, after the birth of issue. Willard on Real Estate, 68 ; 4 Kent's Com. 27, 28. 30. What four things are necessary to create this estate? (1) Marriage ; (2) seizin of the wife ; (3) birth of issue, and (4) death of wife. Willard on Real Estate, 58 ; 4 Kent's Com. 29; 3 Wait's Act. & Def. 77; Tyler on Inf. & Gov. (2d. ed.) 230. 31. What is dower? It is a life estate, which the law gives to a widow, in the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage. Willard on Real Estate, 61 ; 4 Kent's Com. 35 ; 3 Wait's Act. & Def. 74 ; Tyler on Inf. & Gov. (2d. ed.) 540. 32. What tJiree things are requisite to create dower f (1) Marriage ; (2) seizin of the husband, and (3) death of the husband. Willard on Real Estate, 62 ; 4 Kent's Com. 36. 33. Of what estate must the husband be seized in order to entitle his widow to dower ? He must be seized during the coverture of a present free- The Law of Rbai, Property. 65 luM estate of inheritaiiGe. Willard on Real Estate, 62 ; 4 Kent's CJom. 37-39 ; Tyler on Inf. & Cov. 548. 34. ^ A. dies seized in fee of certain lands, which descend to his son subject to the dower of th,e mother, and dower is assigned to her in the premises, and the son dies during the continuance of her .estate, to what dower will the widow of the son he entitled ? The widow of the son will be entitled to dower in the re- noiaining two-thirds only, and will not be entitled to dower in the reversion of that part which was assigned to the mother as "■ tenant in dower. Willard on Real Estate, 63. 35. Would the right of dower of the widow of the son he the same if the father had conveyed the premises to the son ? It would not. The son would have then died seized of the 'entire estate subject to the mother's right of dower, and his widow would then be entitled to dower in the entire estate subject to the same right. Willard on Real Estate, 63 ; 4 Kent's Com. 64. 36. What is the nature of an inchoate right of dower ? It is in no sense an interest or estate in land, but is a con- tingent claim, arising out of no contract but as an institution of law, constituting a mere chose in action incapable of transfer by grant or conveyance, and during its inchoate state susceptible ■only of extinguishment. 8 Wait's Act. & Def. 311 ; Witthaus v. Schack, 105 N. Y. 332. See chap. 616, Laws of 1892'. 37. What is the effect of the Joinder by a married woman with her husband in a deed or mortgage of his lands ? The joinder by the wife with the husband in the deed or mort- gage of his lands does not operate, as to her, by way of passing an estate, but enures simply as a release to the grantee of the hus- band of her future contingent right of dower in the granted or mortgaged premises, in aid of the title or interest conveyed by his deed or mortgage. Her release excludes her from afterwards claiming dower in the premises as against the grantee or mort7 gagee so long as there remains a subsisting title or interest created l>y the conveyance from the husband. 8 Wait's Act. & Def. ran. 56 The Law of Real Pbopebtt. ; 38. What will be the effect on the rights of the wife if a convey- ance of her husband^ s lands, in .which she has joined, is set aside at the instance of creditors, or is , defeated hy a sale on execution under a prior judgment ? She will be restored to her original position, and after the death of her husband may recover dower in the lands as thoughi she had never joined in the conveyance. 8 Wait's Act. & Defl 311. 39. Is the widow of the mortgagor entitled to dower out of the- mortgaged premises ? She is as against all but the mortgagee. Willard on Real Estate, 62, 63. 40. If A and wife execute a mortgage on certain lands, and A afterward dies, to what dower will his widow he entitled on fore- closure and sale of the mortgaged premises ? She will be entitled to dower in the surplus, if any, remain-r ing after the payment of the mortgage debt, and the costs of foreclosure. Willard on Real Estate, 64; 4 Kent's Com. 38, 39; 3 Wait's Act. & Def. 657 ; Tyler on Inf. & Gov. (2d. ed.), 550, 566. 41. A, being an infant, unites with her husband in conveying land to B ; the husband of A afterward dies ; has A any rights in the land conveyed to B? She has still her right of dower. An infant cannot bar her right of dower by uniting in a conveyance with her husband. Willard on Real Estate, 64 ; Tyler on Inf. & Gov. (2d. ed.), 583. 42. A and B make an exchange of the lands owned hy them, each conveying to the other an estate equal in quantity to the one received, in consideration of a like conveyance by the other ; if A dies leaving a widow, can she claim dower in the estate given to, as well as the estate received from B. in exchange ? She cannot have dower in both estates, but she may elect out of which estate dower shall be assigned her. In the de- fault of the commencement of proceedings to recover dower out of the estate given B in exchange, within one year from the death of her husband, she will be deemed to have elected ta The Law of Real Peopbktt. 5T take her dower out of the estate received in exchange fromB. Willard on Real Estate, 64 ; 4 Kent's Com. 59. 43. What effect has a decree of divorce on the wife's right of dower ? An absolute divorce dissolving the marriage contract for the misconduct of the wife, is fatal to her right of dower. But where the divorce is obtained by the wife, for the adultery of the husband, she is still entitled to dower in lands of which he was seized prior to the divorce. A decree of divorce, a mensem et thoro, does not work a forfeiture of the right of dower in which the husband was seized prior to the decree. Willard on Real, Estate, 66, 70; 4 Kent's Com. 54; 2 Wait's Act! & Def. 607, 608 ; Code of Civil Pro., §§ 1759, 1760. 44. What would be the effect of a decree of nullity on a claim for dower f It would be a bar to the claim. Willard on Real Estate, 66^ 45. What is a jointure ? Jointure is an estate for the life of the wife, to take effect in possession or profit immediately after her husband's death, and arises by the express contract of the parties, and is in lieu of dower. Willard on Real Estate, 66. 46. What is necessary to make a jointure a bar to a right of dower ? It is necessary that the wife, in person or by guardian, should become a party to the conveyance by which the jointure is set- tled. Willard on Real Estate, 66. 47. Can dower he barred by any jointure other than in an estate in lands f It may be barred by any pecuniary provision that shall be made for the benefit of the intended wife and in lieu of dower, if such wife shall manifest her assent to the jointure by becoming a party to the instrument in which the pecuniary provisions are inade. Willard on Real Estate, 67 ; 4 Kent's Com. 58. 48. When may a wife elect between a jointure and dower? If before coverture, and without the assent of the intended wife, or if after-coverture lands are given for the jointure of the 58 The Law op Ekal Pbofertt. wife, or pecuniary provision is made for her in lieu of dower, she is entitled to elect whether she will take the jointure or pecuniary provision, or whether she will be endowed in her husband's lands. She is not entitled to both. Willard on Real Estate, 68. 49. Can a husband, by testamentary provision or othervnse, bar his wife's right of dower? He cannot. Dower is a legal right over which the husband has no direct control. On acceptance by the wife of an offer by the husband of something in lieu of dower, it will operate as a dower ; but it is the acceptance by the wife, and not the offer by the hpsband, which has that effect. Willard on Real Estate, 68. 50. When will a widow be compelled to elect between dower and a provision made for her in her husband's will f Only where the testator declares that the legacy shall be in lieu of dower, either in express words or by necessary impU- eation. Where the intent of the testator is not expressly de- clared, the widow may claim both the legacy and dower, unless the provisions of the will are so utterly inconsistent with her claim for dower that the intention of the testator, in relation to some part of the property devised to others, would be defeated if such claim were allowed. Willard on Real Estate, 68. 51. When will the law presume that the widow has elected to take her jointure, devise or pecuniary provision in lieu of dower f When she has failed to enter on the lands to be assigned to her for dower, or to commence proceedings for the recovery or assignment thereof within one year after the death of her hus- band. Willard on Real Estate, 69. Laws of 1890, chap. 61. 62. When will a j ointure, devise or pecuniary provision, in liev. of doiver, be forfeited by the act of the wife ? Upon her conviction of adultery, in an action brought by her husband for an absolute divorce. Willard on Real Estate, 71. 63. By a conveyance, properly executed, a certain block of buildings was conveyed to B, and his heirs, so long as the village in which the land was situated should be unincorporated. Is the The Law of Reai. Peopebty. 59 esUtte (ff B in the land suffieient to support a claim for dower tMr^n, in case he should die leaving a widow surviving him ? It is. A widow is entitled to dower, where the husband was seized of a defeasible or conditional estate of freehold of in- heritance. But the dower will be defeated on the happening of the event upon wliich the estate is limited, as on the incorpora- tion of the village, in the case given. Willard on Real Estate, 71. 54. A.^ heing the owner of certain lands, conveys the same to B, the wife of A not joining in the conveyance ; B thereupon places certain valuable buildings upon the land so conveyed, and continues- to improve the same until the death of A, when A's widow puts in a claim for dower in the land. Is the widow of A entitled to dower in the land, according to its value at the time of the death of Af She is not. She is entitled to dower in the land according t© its value at the time of its alienation. Willard on Real Estate, 72 ; i Kent's Com. 65-68. 65. What do you understand by the term ^'■widow's quaran- -tine" ? It is a term used to designate the forty days immediately following the death of the husband, during which the widow is entitled to remain rent free in the chief house of her husband, and to have her reasonable sustenance out of the estate. "Willard ^n Real Estate, 73 ; 4 Kent's Com. 61. 56. Within what time must a widow demand her dower ? She must demand her dower within twenty years from the death of her husband unless she was' under some disability at the time of such death, in which case the twenty years run from the time of the removal of the disability. Willard on Real Estate, 74. 57. In what cases will a life estate merge in the inheritance ? Where the tenant for life surrenders the reversion, or where the tenant for life acquires the absolute property, the life estate becomes merged in the fee simple. Willard on Real Estate, 76-92. 68. Upon the death of a tenant for life will Ms executors or the reversioner be entitled to emblements ? On the failure of the tenant to bequeath them, they go to 60 The Law of Real Pkopektt. the executor or^administrator of the deceased^ to be distributed with the personal estate. Willard on Real Estate, 77 ; 4 Kent's^ Com. 73. ' 59. Mention the estates less than freehold? They are either : 1. Estates for years ; or 2. Estates at will ;, 8. Tenancies from year to year ; or 4. Estates at sufferance. Willard on Keal Estate, 80. 60. What are estates for years, and what denomination of property are they f Estates for years are only chattels real ; and they form part of the personal estate. Willard on Real Estate, 81. 61. Is it essential to an estate for years that its duration should be limited to at least one. or more years ? , It is not. An estate for a month or week is treated as an estate for years, that being the shortest period of which the law takes notice. Willard on Real Estate, 80 ; 4 Kent's Com. 85 ; 4 Wait's Act. & Def. 202. - 62. A. having leased a house for five years at a stipulated rent, occupied the premises hut one month when the house was destroyed hy fire. Is he liable for the rent while it continues uninhabitable? He is, at common law, in the absence of any provision in the lease to the contrary. • But in this State the rule has been reversed by statute. Laws of 1860, ch. 345 ; 1 Wait's Law & Pr. (5th. ed.) 351 ; Willard on Real Estate, 83. ' 63. Upon what does the right of a tenant of an estate for years to the outgoing crop depend? It depends either upon the uncertain termination of the estate, or upon the express provisions in the lease in relation thereto. If the lease is for a certain number of years and con- tains no covenants or stipulations on the subject, the tenant is not entitled to the outgoing crop ; but if the termination of the estate depends upon an uncertain event the tenant is entitled to the outgoing crop in the absence of an agreement to the contrary. Willard on Real Estate, 82 ; 4 Kent's Com. 109 ; 4 Wait's Act. «& Def. 253; 8 id. 371. The Law of Eeal Pboperty. 61 . 64. What is a "■fixture ? " ' Technically speakings a fixture is anything of an accessorj character annexed to houses and lands so as to constitute a part of them. The term is also used to denote personal chattels an- nexed to the freehold, but removable by the person annexing them. 2 Wait's Law & Pr. (5th. ed.) 226 ; Tyler on Fixtures, 35 ', 2 Wait's Act. & Def . 368. 66. -By what test may you determine whether a thing annexed to the freehold hy a tenant is a fixture or not ? The true criterion of a fixture is the united application of three requisites: First. Actual annexation to the realty or something appurtenant thereto ; Second. Application to the use or purpose to which that part of the realty with which it is con- nected is -appropriated ; Third. The intention of the party mak- ing the annexation to make a permanent accession to the free- hold. 3 Wait's Act. & Def. 369 ; 8 id. 264 ; 2 Wait's Law & & Pr. (5tTi ed.) 232. 66. Will the mode of annexation alone determine whether the thing annexed is a fixture and apart of the realty, or whether it is still personal property and removable ? It will not. The mode of annexation is but evidence of the Intention with which the tenant made the annexation at the time. Willard on Real Estate, 86. 67. What then is the most important question of fact to he set- tled in determining whether a thing annexed to the freehold is per- gonal property or a part of the realty f The intention with which the tenant made the annexation. Willard on Real Estate, 86 ; Potter v. Cromwell, 40 N. Y. 287; S Wait's Act. & Def. 264-266. 68. State the*general rule as to the right of a tenant to remove additions or improvements which he has made upon lands during his term. It is a general rule, that any one who has a temporary in- terest in land, and who makes additions to it, or improvements "upon it for the purpose of the better use or enjoyment of it while such temporarv interest continues, may at any time before his 62 The Law of EiGAL Pkopeety. right of enjoyment expires, rightfully remove such additions and improvements. If he omit to sever the addition or improve- ment, until his right of enjoyment ceases, such omissioa is t» be deemed an abandonment of his right, and thereafter the ad- dition or improvement becomes a part of the inheritance, and the tenant who severs it becomes a trespasser. 2 Waits Law & Ft. 229 ; Willard on Real Estate, 86. 69. -ffas the lessee of a farm the right to renlove the manure made thereon ? In the absence of a provision in the lease, or of a special custom to the contrary, the manure made upon a farm belongs to the farm and not to the tenant ; and the tenant has no more, right to dispose of it to others, or remove it himself from the ' premises, than he has to dispose of or remove a fixture. WiUard on Real Estate, 85 ; 1 Wait's Law & Pr. 348. 70. What do you understand hy a surrender ? A surrender is a yielding up of an estate for life, or for years, to the person having an immediate estate in reversion or remainder. Willard on Real Estate, 91 ; 4 Kent's Com. 103,, 104. 71.. What is meant hy the merger of a term of years ? When a person is possessed of a term of years and afterward becomes possessed of the freehold, whether in fee or for life, if both estates are in the same right, and no other estate intervenes^ the term will become swallowed up in the freehold, or in techni- cal language, merged in it. . Willard on Real Estate, 92. 72. What are the requisites to produce a merger of an estate ? There must be a greater and a less estate meeting in the- same person, in the same right, without any intermediate estate, which will at once cause the less estate to be merged in the greater. Willard on Real Estate, 306. 73. What is a tenancy at will? It is one held at the will of both parties, landlord and ten- ant, so that either of them can determine it at his pleasure. Willard on Real Estate, 94 ; 4 Kent's Com. 110-115 ; 1 Wait's Law & Pr. (5th ed.) 346 ; 3 Wait's Act & Def. 48; 4 id. 204. The Law of Beai. Property. 6^ 74. If A leases a farm to B for one year at a specified rent, mnd B holds over after the expiration of his term, without any new agree- ment as to the rent, what will then be the character of B' s tenancy ? ^ The law will imply that B holds from year to year at the original rent. Willard on Real Estate, 95 ; 1 Wait's Law & Pr.. (5th ed.) 342 ; 3 Wait's Act. & Def. 50 ; 4 id. 218. 76. What is a tenancy at sufferance ? A tenancy at sufferance is where a person has originally- come into possession of an estate by a lawful title, and holds such possession after his title has been determined. Willard on Real Estate, 97 ; 4 Kent's Com. 116 ; 4 Wait's Act & Def. 205. 76. What is a condition, as the term is used in speaking of estates and lands ? A condition is some quality annexed to real estate, by virtue of which it may be created, enlarged or defeated upon the hap- pening of an uncertain event. Willard on Real Estate, 100 ; 2 Bl. Com. 151 ; 4 Kent's Com. 121. 77. Crive the general divisions of estates upon condition ? There are two general divisions : (1) Estates upon condition implied, and (2) estates upon condition expressed. The first are called conditions in law, and the second are called conditions in deed. 2 Bl. Com. 152; 'Willard on real Estate, 100; 4 Kent's Com. 121. 78. What is the distinction between a limitation and a condi- tion ? A limitation is where an estate is so limited by the words of its creation that it cannot endure for a longer time than till the contingency happens upon which the estate is to fail ; but when an estate is upon condition, as upon condition that A re- moves to a certain place to reside, the law permits the estate to endure beyond the time when such contingency happens, unless the grantor or his heirs take advantage of the breach of the con- dition, and make either an entry or a claim, in order to avoid the estate. 2 Bl. Com. 154 ; WiUard on Real Estate, 102 ; 3 Wait's Act. & Def.'53. ei The Law of Hbai. Pkopeett. 79. When are express conditions void in their creation f When they are (1) impossible at the time of their creation, or afterward become so by the act of God or the act of the grantor ; or (2) when they are contrary to law, human or divine ; or (3) when they are repugnant to the nature of the estate. 2 Bl. Com. 156 ; Willard on Real Estate, 103. 80. ^ A should grant to B an estate in fee, upon condition that JB shall not alien such estate, would the condition be valid ? It would not, for the reason that it would be repugnant to the estate conveyed. Restraints upon alienation can, at common law, be imposed only by persons having a reversion, or at least a possibility of reversion, therein, and no reversion or possibility of reversion can remain in the grantor of an estate in fee simple. Willard on Real Estate, 104. " 81. What is the difference between the effect of a condition p7-» cedent and a condition subsequent ? Conditions precedent are such as must happen or be per- formed before an estate can vest or be enlarged. Conditions subsequent are such as may defeat an estate already vested by reason of their failure or non-performance. 2 Bl. Com. 154; Willard on Real Estate, 105. 82. What is a mortgage ? It is a conveyance of lands, by a dftbtor to his creditor, as a pledge or security for the re-payment of a sum borrowed, with a proviso that such conveyance shall be void on payment of the money secured by it, with interest, on a day specified. Willard on Real Estate, 109 ; 4 Kent's Com. 135 ; Boone on Mort. § 1; 4 Wait's Act. & Def. 512. 83. What power of sale is usually contained in a mortgage f A mortgage usually contains a power authorizing the mortga- gee, his executors, administrators or assigns, to sell the premises described, with their appurtenances, in the manner prescribed by law, in case of any default in the payment of the money se- cured by the mortgage, and out of the money arising on such sale to retain the principal, interest and costs, and to render the overplus to the mortgagor, his heii?s or assigns. • Willard on Real Estate, 110. The Law of Eeal Peopebty". 65 84. Ib it necessary that a mortgage should contain a power cf ^ale, or a covenant to pay money ? Is is not. Willard on Real Estate, 110. 85- If A conveys his land to B, absolutely, and B, hy a separate instrument, covenants to reconvey to A, on payment hy A of a certain -sum., are the rights of the parties changed hy the fact that the con- wyanee and defeasance are separate instruments ? They are not. The transaction amounts only to a mort- :gage. Willard on Real Estate, 111 : 4 Kent's Com. 141 : 4 Wait's Act. & Def. 517. 86. Gan a deed, absolute upon its face, be shown to he a mort- gage without the production of the written defeasance ? It can be shown to be a mortgage by parol evidence. Wil- lard on Real Estate, 113 ; 4 Kent's Com. 142, 143, note ; 4 Wait's Act. & Def. 519. 87. What must he the form of an assignment of a mortgage to be valid under the provision of the statute of frauds, which declares that no estate or interest in lands, except leases for one year shall he assigned unless by operation of law, or hy a deed or conveyance in writing subscribed by the party assigning the same. It need not be in any particular form, as an assignment of a mortgage is not a conveyance of land within the meaning of the , statute. An assignment by a mere delivery is as valid as a ■written assignment under seal. Willard on Real Estate, 113. 88. Hxplain what is meant by the term " equitable mortgage ? " An equitable mortgage means that a debtor has in equity created a charge on his estate in favor of his creditor, without having clothed such creditor with the legal estate. Willard on Real Estate, 114. 89. If A conveys land to B, talcing B's note for a part of the purchase-money, and B afterward conveys the land to G, has A such a lien upon the premises so conveyed as to secure the payment of the residue of the purchas&^money, in case of default in the pay- vient of the notes ? While the title to the land remained in B, A had a lien upon the land for the purchase-money, in the nature of an equitable 5 gg The Law of Real Property. mortgage. If C purchased of B with notice of the existence of this lien, or without advancing any new consideration, the lien- upon the land is still existing ; but if C purchased without no- tice, and for a full consideration, the lien is defeated, and A's remedy upon the land destroyed. Willard on Real Estate, 114 ; 4 Kent's Com. 151, 152, note. 90. If Aj without notice, of a prior unrecorded mortgage, pur- chases land of B in good faith, and for a valuable consideration^ and places his conveyance upon record, how will the subsequent re- cording of such mortgage affect his title f It will not affect his title in any way ; B will continue to hold the land discharged of the lien of the mortgage. Willard on Real Estate, 121; 4 Kent's Com. 168-171. 91. What formalities in the execution of a mortgage must be ob~ served in order to entitle it to he recorded ? The mortgage must either be acknowledged by the mort- gagor, before a proper officer, or be attested at the time of its ex- ecution, by one or more subscribing witnesses, by whom it can be proved. Willard on Real Estate, 123. 92. Which will be entitled to preference, an unrecorded mortgage or a subsequent judgment doclceted ? The mortgage. Willard on Real Estate, 124 ; 4 Kent's Com.. 173. 93. Which will be entitled to preference, a mortgage given to se- cure the payment of purchase-^money, or a prior judgment against the mortgagor f The mortgage. Willard on Real Estate, 124 ; Code of Civil Pro. § 1254. 94. What is the nature of the interest of the mortgagor and mort- gagee respectively in the premises mortgaged? The mortgagor is the owner of the freehold, and the mort- gagee has a mere chattel interest. WiUard on Real Estate, 125. 95. How would you proceed if your client was the mortgagee of certain premises, and the mortgagor was impairing the value of the mortgage security by cutting down the timber thereon ? I would obtain an injunction restraining the mortgagor from; The Law of Eeal Pbopebtt. 67 cutting down more timber tlian was necessary for firewood and the necessary repairs about the premises. Willard on Real Es- tate, 127 ; 3 Wait's Act. & Def. 699. 96. When the mortgage debt has beenpaid, how is the mortgage discharged of record ? In order to obtain a legal discharge of a mortgage of record, it is necessary to present to, the officer in whose custody it is, a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and certified as is required to entitle conveyances to be recorded, specifying that the mort- gage has been paid, or otherwise satisfied or discharged : upon which it is the duty of the officer to record the certificate and proof or acknowledgment of the same, and make a minute of the; discharge upon the record of the mortgage. Willard on Real Estate, 129. 97. What is the effect of a tender by the mortgagor to the mort- gagee of the sum due on a mortgage ? If a mortgagor, at any time before actual foreclosure, ten-^ ders to the mortgagee the amount of the mortgage debt, and the mortgagee refuses to receive it, the land is freed forever from the lien of the mortgage, although the debt is not extinguished. From the time of such tender the liability of the mortgagor .takes the character of a mere personal debt. Willard on Real Estate, 130 ; 4 Wait's Act, & Def. 544 ; 7 id. 595. 98- A. loans money to B and takes as security therefor a bond and mortgage on certain lands of B, and on default in the payment of the debt forecloses the mortgage, receiving from the sale of the land less than the sum due. Has he any further remedy against B, or will the foreclosure and sale operate as an extinguishment of the debt ? He has still his remedy by action on the bond. The fore- closure and sale' operate as an extinguishment of the mortgage debt only to the amount produced by the sale. Willard on Real Estate, 141. 99. Sow are estates divided with respect to the time of their en- joyment f Into estates in possession and into estates in expectancy. Willard on Real Estate, 156 ; Bingham on Real Estate, 12. 68 The Law of Eeal Peopeett. 100. What are the statutory divisions of estates in expeo~ tancij ? Estates in expectancy are divided into : 1. Estates commenc- ing at a future day, denominated future estates ; and 2. Rever- sions. Future estates are created by the act of the parties ; and reversions by the act of law. Willard on Real Estate, 156; Bingham on Real Estate, 42. 101. What is the distinction between vested and contingent future estates f Future estates are vested where there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent while the person to whom, or the event upon which they are limited to take effect, remains uncertain. Wil- lard on Real Estate, 158 ; Bingham on Real Estate, 42. 102. State the rule in Shelly\ case f Whenever an estate of freehold is given, and by the same conveyance or will an anterior estate (whether mediately or immediately) is limited to the heirs of the same person in fee or in tail, such ulterior estate vests in that person himself in the same manner as if it had been expressly given to him and his heirs ;■ the word " heirs " being a word of limitation and not of purchase. Willard on Real Estate, 166 ; 4 Kent's Com. 200- 213. 103. Is the rule in Shelly^s case a part of the law of this State ? It is not. The statutes provide that whenever a remainder shall be limited to the heirs of the body of a person to whom a life estate in the premises shall be given, the person who, on the determination of the life estate, shall be the heir or heirs of the hoAj of such tenant for life, shall be entitled to take as pur- chasers by virtue of the remainder to them. Willard on Real Estate, 167 ; 4 Kent's Com. 211, note. 104. What is an estate in reversion? It is defined in the Revised Statutes, as the residue of an estate, left in the grantor or his heirs, or in the heirs of a testator^ commencing in possessioli on the determination of a particular The Law of Eeal Pbopkktt. 69 estate granted or devised. 1. R. S. 743, § 12 ; Willard on Real Estate, 174 ; 4 Kent's Com. 353. 105. What is an estate in severalty ? It is an estate held by a man in his own right only, without any other person being joined or connected with him in point oft interest during his estate therein. Willard on Real Estate, 176 •/' Bingham on Real Estate, 172. 106. Who are joint tenants at common law ? Where an estate is acquired by two or' more persons in the same land by the same title (not being a title by descent), and at the same period, and without any words importing that they are to take in distinct shares, they will take the estate as joint tenants. Bingham on Real Estate, 172, 173 : Willard on Real Estate, 177 ; 2 Bl. Com. 180 ; 4 Kent's Com. 357 ; 4 Wait's Act & Def. 172. 107. What fourfold unity is necessary to the existence of a joint tenancy ? .1. Unity of interest ; 2. Unity of title ; 3. Unity of time, and 4. Unity of possession ; or in other words, joint tenants must have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. 2 Bl. Com. 180 ; 4 Wait's Act. & Def. 174. 108. What is a tenancy in common at common law ? A tenancy in common, at common law, is where two or more hold the same land with interests accruing under different titles ; or accruing under the same title {other than descenf), but at different periods ; or, eonferredhy words of limitation importing that the grantees are to take distinct shares; the only unity requi- site to create a tenancy in common being a unity of possession. 2B1. Com. 192; Bingham on Real Estate, 175; Willard on Real Estate, 182 ; 4 Kent's Com. 367, 368 ; 4 Wait's Act. & Def. 169. 109. What was an estate in coparcenary at common law, and who were coparceners f An estate in coparcenary was where lands of inheritance descended from the ancestor to two or more persons. 70 The Law of Eeal Peopeety. Where a person seized in fee simple or fee tail died, and his next heirs were two or more females, they all inherited ; and these co-heirs were called coparceners, or for hvewitj parcenerg only. 2 Bl. Com. 187 ; Bingham on Real Estate, 174 ; 4 Kent's Com. 366. 110. In what respect did an estate in coparcenary resemble an estate held in joint tenancy ? In requiring three of the essential properties of an estate in joint tenancy, viz., unity of interest, unity of title and unity of possession. 2 Bl. Com. 188 ; 4 Kent's Com. 366. 111. In what respect do estates in joint tenancy, imder the Revised Statutes, differ from estates in joint tenancy at common law? In the mode of their creation. At common law, where an estate was acquired by two or more persons in the same lands, by the same title and at the same period, the estate was a joint tenancy unless there was something in the language of the instrument of conveyance indicating the intention that the lands should be held in severalty, in which case it became a tenancy in common. Under the statutes, the rule is precisely the reverse, and no estate in joint tenancy can be created by any conveyance, other than to executors or trustees, unless the premises therein mentioned are thereby expressly declared to pass, not in tenancy in common, but in joint tenancy. In the absence of such express declaration the estate is a tenancy in common. Bingham on Real Estate, 173 ; Willard on Real Estate, 177. 112. In what respects do estates, held in tenancies in common, under the Revised Statutes, differ from estates so held at common law? (1) In being created without express words indicating an intention that they should be held in severalty ; and (2) in the possibility of having been acquired by 'descent and not by purchase, as the statute has placed coparceners among tenants in common, by providing that whenever an inheritance shall de- scend to several persons, they shall take as tenants in common, in proportion to their respective rights. Willard on Real Estate, 177 ; Bingham on Real Estate, 175. The Law of Real Pkopeety. 71 113. What is the principal incident of an estate in joint ■tenancy ? The jus accrescendi or right of survivorship, which passes tli& interest of a deceased joint tenant to the surviving co-tenant or co-tenants. Willard on Real Estate, 179 ; 4 Kent's Com. 360 : 4 Wait's Act. & Def. 170, 174. 114. If an estate is granted or devised to a husband and wife -and their heirs what would the estate be called ? An estate by entireties ; and they would hold the estate as •one individual. Willard on Real Estate, 180 : 4 Kent's Com. 363 ; 4 Wait's Act. & Def. 170 ; 8 Ed. 307. 115. If there be three joint tenants in fee simple and one of them releases his share to another of the three, what is the effect of such release and what is the estate or interest of the various par- ties after such release f The effect of the release would be to destroy the joint ten- ancy as to the part released, and to make the releasee a tenant in common with the remaining co-tenant, as to that part, while as to the remaining two-thirds they will still be joint tenants. Willard on Real Estate, 181. 116. A testator devises land to A and B and their heirs to be held in joint tenancy. A dies intestate leaving a son, and after- ward B dies intestate leaving two daughters, one of whom dies in- testate leaving a son. Who can convey the land to the purchaser ? Tlie surviving daughter of B, and the son of the deceased ■daughter are the proper parties to convey the land. The estate being originally a joint tenancy, the entire estate, by the right of survivorship, passed to B, on the death of A ; and on the 'death of B, the estate descended to his two daughters as tenants in I common, as and between them there would be no right of survivorship. WiUard on Real Estate, 179, 183. 117. Can one tenant in common of a single house or a single field ■separate his interest from that of the other tenant in common? One tenant in common cannot as against the rights of his as- .sociates, convey a distinct portion of the estate by metes and Jbounds. But one tenant in common may claim a partition of the 72 The Law of Real Pbopsbty. estate held in common as a matter of right : and if a partition: cannot be made by metes and bounds without gi'eat prejudice> to the owners, the court may order a sale of the premises at- public auction to the highest bidder and pay the proceeds, less the costs and charges, to the respective parties, according to their respective interests in the fund. Willard on Real Estate, 185 ; Code of Civil Pro. § 1532. 118. B.OW may a joint tenancy or a tenancy in common he severed. A joint tenancy may be severed : (1) By partition ; or (2) By alienation without partition, as where one joint tenant .con- veys his estate to a third person, and thus creates a tenancy in common, or releases his share to the other, and turns it into an estate in severalty; or (3) By an accession of interest, as where there are two joint tenants for life, and the inheritance is- purchased by or descends upon either, thus severing the jointure.. A tenancy in common may be dissolved (1) By partition ; or (2) By uniting all the titles and interests in one tenant, by purchase or otherwise, thus bringing the whole to one severalty. Willard on Real Estate, 180, 185 ; 4 Kent's Com. 364, 369, 370. 119- A and B are joint tenants in fee. A devises Ms real estate and dies before B. Is the joint estate severed hy the devise ? No. A devise by a joint tenant of his share by will is no severance of the jointure. Willard on Real Estate, 179. 120. Oan a tenant in common, hy bringing an action for parti- tion, and obtaining a division or sale of the common property, share in the benefits arising from improvements made by his co-tenant ? He cannot. He will be entitled to relief in such action only upon condition that any equities of his co-tenant arising from the improvements made, shall be taken into account and protected* 8 Wait's Act. & Def. 364. 121. Has the common law rule, that where land is conveyed to husband and wife they take as tenants by the entirety been abrogated hy the married women acts ? It has not. 8 Wait's Act & Def. 307. 122. Sow may lands held by husband and wife as joint tenants^ The IjAw of Real Pbopeety. 73 tenants in common, or as tenants ly the entireties, I e partitioned or divided ? By an instrument for that purpose duly executed under their hands and seals. Laws of 1880, chap. 472. 123. WovZd the wife have an inchoate right of dower in the lands so partitioned and set apart to the husband ? She would, unless a provision to the contrary was inserted in the instrument of partition or division. If such provision was- inserted, her right of dower would be barred. Laws of 1880,, Chap. 472. 124. Is a conveyance of real estate, made directly from husband to wife or wife to husband, valid at law ? It is^ unless the conveyance is invalidated by some fact other than that the parties conveyed directly from one to the other. Laws of 1887, Chap. 537. 125. How may trustees convey an estate held by them in their character as trustees ? By all uniting in the conveyance. Willard on Real Estate, 182 ; 8 Wait's Act. & Def. 219. 126. Define incorporeal hereditaments, and sfedfy such as ex- ist under the statutes of this State ? An incorporeal hereditament is a right issuing out of a thing corporate, whether real or personal, or concerning, or an- nexed to, or exercisable within the same. 2 Bl. Com. 20. The rights which are so termed in this State, are commons, ways, . franchises, annuities and rents. Willard on Real Estate, 189 ;. 3 Kent's Com. 402, 403. 127. What is a right of way f It is the privilege which one or more persons enjoy of going over the land of another. Willard on Real Estate, 193 ; 3 Kent's ■Corn. 419, 420; Washburn on Easements (3ded.) 229. 128. How mMy a right of way be acquired? (1) By grant ; (2) By an exception and reservation to the grantor in the conveyance which passes his estate in other re- spects to the grantee- (3) By prescription and immemorial usage ^ 74 The Law of Real Pkopektt. and (4 From necessity. Willard on Real Estate, 194 ; 3 Kent's Com. 420 ; 6 Wait's Act & Def. 348. 129. What is an easement? An easement is a privilege without profit, which the owner of a neighboring tenement hath of another, existing in respect to their several tenements by which the servient owner is obliged to suffer, or not to do, something on his own land for the ad- vantage of the owner of other land, who is called the dominant owner. Bingham on Real Estate, 17 ; 3 Kent's Com. 434 ; 2 Wait's Act. & Def. 655 ; 8 id. 235 ; Washburn on^ Easements, (3d ed.) 2, 10. 130. When will a right of way by prescription arise, and upon what is it founded? A right of way by prescription will arise by virtue of an un- interrupted use of a particular way or road for the period of twenty years, under a claim of right adverse, or in hostility, to that of the owner of the land. The right by prescription is founded upon a supposition that a grant of the right of way was originally made. Willard, on Real Estate, 194 ; 3 Kent's Com. 442; 6 Wait's Act. & Def. 352; 8 id. 238, 497. 131. When will a person he said to have a right of way from necessity over the lands of another ? When a person having a parcel of land surrounded by his own land, or by his own land and the land of another, grants the land so surrounded, the grantee and those claiming under him have a right of way by necessity through the lands of the grantor. Willard on Real Estate, 194 ; 6 Wait's Act. & Def. 355 ; 8 id. 498. 132. Is it the duty of the grantee, or of the grantor of a right of way to keep the way in repair? It is the duty of the grantee, unless the grant contains cov- enants to the contrary. Willard on Real Estate, 196. 133. How will the grant of a franchise conferring exclusive priv- ileges be construed ? It will be construed strictly and will not be extended by implication. Willard on Real Estate, 201. I The Law of Real PiROPBEiY, 75 134. What is rent? Rent is a certain profit issuing yearly out of lands and tenements corporeal. 2 Bl. Com. 41. Or in language less tech- Jiical, " it is the compensation to the proprietor of land for the Tight to occupy his land and enjoy its annual profits." Bingham on Real Estate, 654 ; 3 Kent's Com. 460 ; 1 Wait's Law & Pr. 340. 135. What is a rent-charge, and how. created? A rent charge arises on a grant by one person to another of an annual sum of money, payable out of certain lands, in which the gran,tor has an estate. It can be created or transferred by deed only, unless it be given by will. Willard on Real Estate, -204 ; 3 Kent's Com. 461. 136. What contract right is inseparable from a rent-charge? The instrument creating a rent-charge must always contain ^ provision that the owner of the rent may, upon default of pay- -inent, enter upon certain land, and distrain and appropriate the personal property thereon to the payment of the amount due. Bingham on Real Estate, 557 ; 3 Kent's Com. 461. 137. What is a rent-seclc ? A rent-seek is a rent-charge, without the right to distrai::' , Willard on Real Estate, '204 ; Bingham on Real Estate, 557, 559 ; S Kent's Com. 461. 138. When may a landlord recover in an action for the use and occupation of lands or tenements ? Whenever such lands or tenements have been occupied by any person under any agreement not made by deed. Willard .on Real Estate, 214; 6 Wait's Act. & Def. 228 ; 8 id. 485. 139. Sow will an agreement to pay a fixed sum, as rent, affect the right of recovery in an action for use and occupation? It will not affect the right of recovery, but will furnish the measure of damages to be recovered. If no certain rent is re- •seryed, the landlord can recover a "reasonable satisfaction for the use and occupation." Willard on Real Estate, 214 ; 2 Wait's Xaw & Pr. (5th. ed.) 410. 140. If A enters into possession of land owned hy B, under a 76 The Law of Ebal Pbopekty. contract to purchase, and afterward refuses to complete the pur- chase, can B maintain an action for use and occupation f He cannot. The action for use and occupation will lie only where the relation of landlord and tenant exists between the parties, and will not lie against one who comes into possession in the character of a purchaser. 2 Wait's Law & Pr. (5th. ed.) 408 ; Willard on Real Estate, 216 ; 6 "Wait's Act. & Def. 229 ; & id. 485, 141. A, after building a house upon his land, sells the lot ad- joining to B, ivho proceeds to build upon the lot in such a manner as to render the ivindows of A^s house, upon that side, of no avails Has A any remedy f He has not. He should have protected his own lot by a condition in the grant of the adjoining lot, or by a covenant that his windows should not be obstructed. Willard on Real Estate, 219 J 3 Kent's Com. 448, note. 143. What is the greatest right which a man can acquire in ivater flowing along or through his lands f A right to its use only. Willard on Real Estate, 222 ; 3 Kent's Com. 439 ; Washburn on Easements (3d ed.) 286. 143. A being the owner of land upon which was a spring that flowed naturally on to the land of B, diverted the water from its natural channel by carrying it in shallow ditches through his fields for the purposes of irrigation, whereby B was deprived of its use. Has B any remedy ? He has. A may be enjoined from so using the water of the spring, that it shall not flow in its natural channel on to the lands of B. Willard on Real Estate, 222 ; 6 Wait's Act & Def. 268. 144. When lands adjoin a river, to whom does the soil of the river presumptively belong ? The soil of one-half of the river, to the middle of the stream, is presumed to belong to the owner of the adjoining land; but if the stream be navigable, the rights of the owners are sub- ject to the public use of it as a highway ; but if it be a tidal river, the soil up to high water mark belongs to the State. Wil- The Law of Ekal Peopekty. 77 lard on Real Estate, 220 ; Thompson's Prov. Rem. 233 ; 3 Kent's Com. 427 ; 1 Wait's Act. & Def. 711 ; 8 id. 141. 145. Is the old law of uses and trusts as it existed prior to the revision of the statutes of this State in 1830, still a part of the law of this State ? It is not, except in a very limited degree. The Revised Statutes abolished uses and trusts except as authorized and modified therein, and declared that every estate and interest in lands should henceforth be deemed a legal right, cognizable as such in the courts of law, except as otherwise provided. Wil- lard on Real Estate, 229, 232 ; 4 Kent's Com. 300. 146. What were resulting trusts prior to the Revised Statutes ? They were trusts arising or resulting by implication of law. Such a trust occurred when A purchased land with the money of JB, and took the deed in his own name, a trust then resulting in iavor of B. Willard on Real Estate, 234 ; 4 Kent's Com. 305. 147. What changes in the law of resulting trusts were introduced ■by the Revised Statutes ? The statutes put an end to resulting trusts arising from the voluntary payment of purchase-money by one person, and the taking of the conveyance in the name of another, so far as re lates to any trusts in favor of the person making such payment. But they further provided that such conveyance should be pre- sumed fraudulent as against the creditors, at that time, of the per- ,son paying the consideration, and that, if such presumption be not rebutted, a trust should result in favor of such creditors to the extent that might be necessary to satisfy their just demands. "Willard on Real Estate, 285. 148. If A should purchase land with the money of B, and take ■an absolute conveyance in his own name, without the knowledge or ■consent of B, would the title to the land rest in A, under the stat- utes of this State ? It would not. The provisions of the statute abolishing rr-- ^ulting trusts, are not applicable to such cases. Willard on Real Estate, 235. 78 The Law op Real Peopertt. 149. For what purposes may express trustshe created under the original provisions of the Revised Statutes ? (1) To sell lands for the benefit of creditors; (2) To sell, mortgage or lease lands for the benefit of legatees, or for the pur- pose of satisfying any charge thereon ; and (3) To secure the rents and profits of lands and apply them to the use of any per- son during the life of such person, or for a shorter term, subject to the rules prescribed by law. Willard on Real Estate, 237 ; 4 Kent's Com. 310. rSO. State generally the cases in which express trusts may he created under subsequent statutes ? Under the act of 1840, real and personal estate may be con- veyed (1) To incorporate colleges, or other literary incorporated institutions, to be held in trust for the purposes of establishing; and maintaining observatories, founding prof essorships and schol- arships, etc. ; (2) To the corporation of cities and villages, to be held in trust for the purposes of education, for the relief of dis- tress, or for parks, gardens, etc. ; and (3) To the superintendents of common schools of any town, and the trustees of any school district, in trust, for the benefit of the common schools of such town or district. This act was further amended and its applica- tion defined by the acts of 1846, and 1855. 151. How may trusts he created? By will, or by deed or grant. Willard on Real Estate, 242. 152. In case of the death of the trustee, leaving the trust urir executed, in whom does the trust estate vest ? In the Supreme Court. Willard on Real Estate, 245. 153. When will a trust estate cease? When the purposes for which it was created have ceased. Willard on Real Estate, 247. 154. What is a power ? It is an authority to do some act in relation to lands, or the creation of estates therein, or- of charges thereon, which the owner granting or receiving such power, might himself lawfully perform. 1 R. S. 732, § 74; WiUard on Real Estate, 250; 4 Kent's Com. 318, note. The Law of Ebal Pkopekty. ' 79 155. How many classes of powers are there? Two general classes, viz., statutory powers and common- law powers. The powers authorized by the revised statutes are also dis- tinguished as general or special, beneficial or in trust, and the def- initions of each class are given by the statutes creating them. WiUard on Real Estate, 252; IE. S. 732, §§ 76-79; 4 Kent's Com. 318. 156. What is the general rule as to the manner in which a power must he executed ? It is a general rule that, where the instrument creating a power prescribes the manner of its execution, the power must be executed in that manner, or the act will be void. WiUard on Real Estate, 262. 157. What is a power of attorney ? A power of attorney is a writing under seal, by which the party executing it appoints another to be his attorney, and au- thorizes him to act for him, either generally or specially. Wil- lard on Real Estate, 268. 158. When and how may a power of attorney he revoked ? A power of attorney may be revoked by an instrument of the same nature, viz., by an instrument in writing under seal, executed by the person or persons giving the power, and at any time before the power is executed. It may also be revoked by death. But when a power of attorney is coupled with an inter- est, as in case of a power of sale in a mortgage, it is irrevocable by death or otlierwise. WiUard on Real Estate, 269, 270. 159. Sas an attorney a right to delegate his authority to any other person ? He has no such power unless it is given by the instrument under which he acts. WiUard on Real Estate, 270. 160. If a purchase-deed is executed under a power of attorney from the vendor, in whose name should it he executed, and what is necessary for the purchaser to consider ? ^ The deed should be executed in the name of the vendor, adding the words, "by A B, his attorney." The 'purchaser 80 ' The Law of Ebal Pkopektt. • should, satisfy himself that the vendor is living at the time of the execution by the attorney, as a power of this kind expires at the death of the principal. Willard. on Real Estate, 271. 161. When a power of attorney to selllands has been recorded, what is necessary to render a revocation by deed under seal effectual f That the instrument containing the revocation should be recorded in the same office in which the instrument containing the power was recorded. Willard on Real Estate, 269. 162. In whom is the ultimate and absolute right of property in land ? In the State, in its corporate and sovereign capacity. Bing- ham on Real Estate, 2 ; Willard on Real Estate, 42. 163. How many modes are there of acquiring title to real property ? There are two : by descent and purchase. A title by de^ scent vests in a person by operation of the law, while a title by purchase vests by the act and agreement of the party. Willard on Real Estate, 315 ; 4 Kent's Com. 373. 164. If a person who is illegitimate dies intestate, leaving no legitimate issue, who becomes entitled to any freehold of which he may die possessed ? Bastards, being filius nullius, cannot, with one exception, be heirs themselves, or have any heirs but those of their own bodies. Therefore if he dies intestate, seized of an estate in, fee, it will revert or escheat to the State. Willard on Real Estate, 318. 165. What exception is there to the common-law rule that illegit- imate children are incapable of inheriting f By the act of 1855, illegitimate children may, in default of lawful issue, inherit real and personal property from their mother, as if legitimate. This is. however, the only exception to the rule. Willard on Real Estate, 318 ; Laws of 1855, ch. 574. The Law of Ebal Peopeeti'. 81 166. Does the common-law rule, that aliens cannot take iy de~' ■scent, remain unaffected hy the statutes of this State f It does not. The rigor of the common-law rule has been materially mitigated by statute. Willard on Real Estate, 320 ; Bingham on Real Estate, 103 ; Laws of 1875, ch. 38. 167. What is the effect of conviction for treason on the right to hold real estate ? Conviction for treason works a forfeiture to the people of the State, during the life of the person convicted, of every free- hold estate in lands of which such person was seized in his own right, at the time such treason was committed, or at any time thereafter. Willard on Real Estate, 322. 168. State the mode in which the real estate of any person who -dies intestate will descend, under the statutes of this State ? The estate of such persons would descend : (1) To his lineal descendants ; (2) To his father ; (3) To his mother ; and (4) To his collateral relatives, subject, in all cases, to the rules and regu- lations prescribed by the statutes. Willard on Real Estate, 326. 169. What is the first rule of descent ? The first rule of descent is, that, if the intestate shall leave .several descendants in the direct line of lineal descent, and all of equal degree of consanguinity to such intestate, the inheritance shall descend to such persons in equal parts, as tenants in com- mon, however remote from the intestate the common degree of consanguinity may be. Willard on Real Estate, 326 ; 4 Kent's <:!om. 375. 170. What is the second rule of descent f The second rule of descent provides that if any of the chil- dren of the intestate be living and any be dead, the inheritance shall descend to the children who are living, and to the descend- ants of such children as have died, as tenants in common, so that each child, who shall be living, shall inherit such share as would have descended to him if aU the children of the intes- tate who shall have died leaving issue had been living ; and so that the descendants of each child who shall be dead shall inher- it the share which their parent would have received if living. 83 The Law of Real Propekty. m. S. Y51, §§ 3, IT; Willard on Real Estate, 328; 4 EfeftVs. Com. 390. l^l. if a father dies intestate, leaving two sons, and two grand- sons, the children of a deceased daughter, what part of the estate l/Ml each inherit, under the second rule of descent? The two sons would each inherit one-third of the estate, and the two grandsons would inherit what would have descended to their mother had she been living, viz., one-third part of the en- tire estate, or each one-sixth of the same. 1 R. S., 751, § 4 ;. "Willard on Real Estate, 329. 172. State generally the third rule of descent. The third rule of descent provides that, in case the intestate shall die without lawful descendants, the estate shall go to the parents ; to the father first, if he be capable of taking the estatie ; otherwise, to the mother ; the quantity of the estate so taken, as whether in fee or for life, depending upon whether there are brothers or sisters of the intestate living, or descendants of the same, to take the reversion or not. 1 R. S., 761, § 5 ; Willard. on Real Estate, 830 ; 4 Kent's Com. 393. 173. In what cases will the estate descend upon the father? If the intestate died without lawful descendants, leaving a father, then the inheritance will go to the father, unless the in- heritance came to the intestate on the part of his mother, and the mother be living; but if the mother be dead, the inheritance de- scending on her part will go to the father for life, and the rever- sion to the brothers and sisters of the intestate and their de- scendants, according to the law of inheritance by collateral rela- tions. If there are no such brothers or sisters, or their descend- ants living, the inheritance will descend to the father in fee. 1 R. S. 751, § 5 ; Willard on Real Estate, 330. 174. In what case will the inheritance descend to the mother? In case the intestate dies without lineal descendants and leaving no father, or leaving a father not entitled to take the in- heritance, and leaving a mother and a brother or sister, or the descendant of a brother or sister, the inheritance will descend to the mother of the intestate during her life, and the reversion to Thb Law of Eeal Peopbrtt. 83 such brothers and sisters of the intestate as may be living, or the descendants of such as may be dead. If the intestate leaves no brothers or sisters, or any descendants of such brothers or sisters the inheritance will descend to the mother in fee. 1 E. S. 752, § 6 ; Willard on Real Estate, 331. 176. What is the fourth rule of descent? Where the intestate leaves no descendants, and no father or mother capable of inheriting the estate, it will descend to the collateral relations of the intestate ; and if there are several of such relatives, all of equal degree of consanguinity to the intes- tate, the inheritance will descend to them in equal parts, however remote from the intestate the common degree of consanguinity maybe. 1 R. S. 752, § 7; Willard on Real Estate, 332; 4 Kent's Com. 400. 176. If A dies intestate, leaving no lineal descendant and no father or mother, but leaving a sister and two sons of a deceased brother, who will inherit Ms estate ? One-half of the estate will descend to the sister and the remaining half will descend to the two sons of the deceased bro- ther of the intestate, each of whom will receive one-fourth of the estate. Willard on Real Estate, 332 ; 1 R. S. 752, § 8. 177. When a person dies intestate, leaving no lineal descendants, parents, brothers, sisters or their descendants, what is the first question to settle in determining to whom the estate will descend f The first question to settle is the source from which the intestate derived his estate, as on the determination of that question will depend whether his estate will descend to the bro- thers and sisters of the father in preference to those of the mo- ther, or to those of the mother in preference to those of the father, or whether the brothers and sisters of both father and mother shall inherit, without preference to either. 178. What is the rule of descent where the intestate dies, leaving .710 lineal descendants, parents, brothers, sisters or their descend- ants, and the inheritance came to the intestate on the part of his father ? In that case, the 'inheritance descends : (1) To the brothers -and sisters of the father of the intestate in equal shares, if aU 84 The Law op Eeal Pkopeett. be living ; (2) If any be living, and any shall have died leaving issue, then to such brothers and sisters as shall be living, and to the descendants of such brothers and sisters as shall be dead ; (3^ If all such brothers and sisters shall have died, then to their descendants ; (4) In default of any such persons to take the in- heritance, it descends to the brothers and sisters of the mother of the intestate and their descendants, in the same manner as it would have descended to the like relatives of the father. 1 R. S. 752, §§ 10, 11; "Willard on Real Estate, 334; 4 Kent's Com. 409. 179. What is the rule in a like ease, except that the inheritance came to the intestate on the part of the mother ? In that case the inheritance goes to the brothers and sisters of the mother of the testator, and their descendants, and not to those of the father, unless there are no brothers or sisters of the mother, and no descendants of the same, in which case the inheritance would go to the brothers and sisters of the father and their descendants. 1 R. S. 753, § 12 ; Willard on Real Estate, 334; 4 Kent's Com. 409. 180. What would he the rule in the two cases last given, if, in- stead of the inheritance coming to the intestate on the part of either father or mother, it had come from other sources? In that case i-t will descend to the brothers and sisters, both of the father and mother of the intestate, in equal shares, and to their descendants, in the same manner as if all such brothers and sisters had been brothers and sisters of the intestate. 1 R. S. 753, § 13 ; Willard on Real Estate, 334. 181. What is the rule of descent, in relation to relatives of the half blood ? The relatives of the half blood inherit equally with those of the whole blood in the same degree, and the descendants of such relatives inherit in the same manner as descendants of the whole blood, unless the inheritance came to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor are ex- cluded from the inheritance. 1 R. S. 753, § 15 ; Willard on Real Estate, 334. The Law. of Eeal Propeety. 85 183. What is the rule of descent, in case an illegitimate dies intestate f Where an illegitimate dies intestate, liis estate descends to liis lineal descendants, if he has any ; if he has no descend- ants, then to his mother; or, if she be dead, it then descends to the relatives of the intestate, on the part of the mother, as if the intestate had been legitimate. Willard on Real Estate, 335. 183. When may illegitimate children inherit from the mother? When there is a default of legitimate issue. In other cases the common-law rule applies, and the bastard cannot inherit. Laws of 1855, ch. 547; Willard on Real Estate, 335. 184. In case none of the rides of descent are applicable to a given case, how is the question of descent to he determined ? By the rules of the common-law. 1 R. S. 753, § 16 ; Willard on Real Estate, 335 ; 4 Kent's Com. 410. 185. What is the distinction between a title by purchase and a title by descent ? A person is said to acquire his title by descent when it comes to him by operation of law, as when it descends to the sou on the death of the father. If it is acquired in any other man- ner, it is said to be acquired by purchase, as where it is devised -by will, etc. Willard on Real Estate, 344; 4 Kent's Com. 423. 186. In what cases will the title to lands revert or escheat to the State ? (1) When the tenant in fee dies seized, leaving no heir cap- able of inheriting the property, and having made no valid dis- position of it by will; (2) When lands are purchased by an alien, who cannot hold as against the State. Willard on Real Estate, 344; Bingham on Real Estate, 19. 187. WTiat is a title by prescription ? It is a right to the undisturbed possession of land which the law gives to any person who has had continuous and peaceable usage and enjoyment of land for twenty years, under a claim of right, and with the acquiescence and knowledge of the owner. Willard on Real Estate, 350. gg The Law op Real Pkopektt. 188. How does the law protect the •possession of land hy a party who has acquired title hy prescription ? By taking away from all others the right to maintain an ac- tion to recover the possession of lands so held. Willard on Real Estate, 347 ; Code of Civil Pro. § 365. 189. When will premises he deemed to have been held adversely under a written instrument or judgment ? Land is deemed to have been accupied adversely whenever it appears that the occupant, or those under whom he claims, entered into possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instru- ment as being a conveyance of the premises in question, or upon the decree or judgment of a competent court ; and that there has been a continued occupation and possession of the premises in- cluded in such instrument, decree or judgment, or of some part of such premises, under such claim, for twenty years. But where a tract is divided into lots, the possession of one lot will not be deemed the possession of any other lot of the same tract. Code of Civil Pro. § 369. 190. What must he the character or nature of the possession or occupancy to constitute adverse possession in such cases ? For the purpose of constituting adverse possession, by a person claiming title founded upon a written instrument, or a judgment or decree,- land is deemed possessed and occupied : (1) Where it has been usually cultivated or improved ; (2) Where it has been protected by substantial inclosure ; (3) Where though not inclosed, it has been used for the supply of fuel or of fenc- ing timber, either for the purposes of husbandry, or for the or- dinary uses of the occupant. Where a known farm or a single lot has been partly improved, the portion of such farm or lot that may have been left not cleared or not inclosed, according to the usual course and custom of the adjoining countrj' will be deemed to have been occupied for the same length of time as tlie part improved and cultivated. Code of Civil Pro. § 370. 91. What premises will he deemed to have been held adversely where the occupation has been under a claim of title not founded The Law of Real Pbopeijty. 9f lipmt a mritten instrv,ment, or a judffnksnt or decree Qf a mwt ? The premises actually occupied, and no other. Code of Oivil Pro. § 371. 192. What must he the nature of the possession or oocupancy of ike premises in such cases to sustain a claim of adverse posses- sion ? Land will be deemed to have been possessed and occupied only : (1) Where it has been protected by a substantial inclosure ; (2) Where it has been usually cultivated or improved. Willard on Real Estate, 355 ; Code of Civil Pro. § 372. 193. Upon what principle does the statute of limitation deny one individual the right to commence an action to recover the posr session of lands which another has. held adversely for twenty years or over f Upon the principle that the party in possession has accom- panied his adverse claim by such an invasion of the rights of the opposite party as to give him a cause of action, which, having failed to prosecute within the time limited by law, he is presumed to have extinguished or surrendered. Tyler on Ejectment and Adverse Enjoyment, 859. 194. A, under a license from B, entered upon the land of the latter and constructed a dam, which, after keeping in repair for more than twenty years, he conveyed to 0. Has acquired any right in the property so conveyed as against B ? He has not, for the reason that A had no right which he could convey. No person holding land under a license from the true owner can set up adverse possession against such owner, and the same rule applies to his grantee. The license given to A was not conveyed to C, as a license is a mere personal right not susceptible of conveyance. Tyler on Ejectment and Adverse Enjoyment, 880 ; 2 Wait's Act. & Def . 656 ; 7 id. 196 ; 8 id. 506. 195. A leased certain lands of B, for a term of five years, and on the expiration of his term held over, claiming to hold the prem- ises under a title adverse to that of his landlord, B (Mowed A io remain in peaceable possession for fifteen years after tjie expira- '88 The Law of Real Pbopektt. tion of his term, without any demand of rent, and then brought an action to recover possession of the premises. Can A defeat a recov- er!/ hy reason of adverse possession ? He cannot. His possession is presumptively the possession; of his, landlord until the expiration of twenty years from the- termination of his tenancy, notwithstanding that he may have- acquired another title, or may have claimed to hold adversely to iis landlord. Tyler on Ejectment and Adverse Enjoyment^ 880; Willard on Real Estate, 358; Code of Civil Pro. § 373 196. In what cases will the adverse occupation and possession of lands, for a period of twenty years, fail to bar the recovery of the- possession of the same by the rightful owner? Where the owner of the lands is under a disability when his^ title first descends, or his cause of action or right of entry first accrues, he may commence an action to recover their possession at any time within ten years after his disability shall cease, re- gardless of the length of time that the adverse party may have held such lands adversely. Willard on Real Estate, 358 ; Code of Civil Pro. § 375. 197. A, at the age of eleven years, acquired title to land by de- vise from his father ; B, at the same time, entered upon the land ■claiming to hold it by a superior title. Five years after arriving at his majority A died, leaving a son who took the estate by descent; and on arriving at his majority commenced an action against B to .recover possession of the land which B had continued to hold ad- 'versely. Can the action be maintained ? It cannot. It should have been commenced within, ten years from the time when A's disability ceased by his becoming of age. The law does not allow successive disabilities to differ- ent persons taking the same estate by devise or descent from the other ; and where an adverse possession begins to run in the life-time of the ancestor, it continues to run though the land de- scends to a person under a disability. Tyler on Ejectment and Adverse Enjoyment, 931 ; Willard on Real Estate, 359. 198. A. claiming title to land which B held adversely, convey- ed it to 0, who within twenty years from the time when B went ivi- The Law of Real Pkoperty. 89' to possession, commenced an action to recover possession of the land so held. Oan he recover f He cannot. A's grant to C being 701(1, C has no title to the land upon which to base his action. Willard on Real Estate, 360. , 199. What is the only restraint upon the alienation of real •property in this State? The statute declaring void every grant of land that at the time of the delivery tliereof, is in the actual possession of a person claiming under a title adverse to that of the grantor. 1 R. S. 739, § 147 ; Willard on Real Estate, 370. 200. What is a deed ? It is a writing sealed and delivered by the parties. 2 BL Com. 295 ; 4 Kent's Com. 452. In common parlance the con- veyance by which the title to freehold estates are conveyed from one person to another are denominated " deeds," although the statutes apply the name of " grant," to such conveyances. Wil- lard on Real Estate, 374: 2 Wait's Act. & Def. 492. 201. What are the requisites of a valid deed f 1. Parties who are able to contract ; 2. Subject-matter. 3. A good and sufficient consideration. 4. That it be written or printed on paper or parchment. 5. That the matter be legally and orderly set forth. 6. That it be read if desired. 7. That it be signed and sealed. 8. That it be acknowledged or attested by witnesses. 9. That it be delivered. 10. That it be recorded in the proper county and in the proper book. Willard on Real Estate, 376 ; Bingham on Real Estate, 74 ; 2 Bl. Com. 296-308 ; 2 Wait's Act. & Def. 492-495. 202. Is it necessary to express the consideration in the deed'! It is not strictly necessary, but it is always advisable to do so. Willard on Real Estate, 379. 203. What are the formal parts of a deed? They are, 1. The premises, setting forth the names of the parties, grantor and grantee, together with their place of abode or other matter of description ; the recital of any facts necessary to explain the object of the deed; the consideration and its ^ TgE Law of Keai, Peoperty. receipt ; the grant and a desoriptiou of the thing granted,. 2, The liabendum and tenendum, the office of which is to set forth the kind of estate which is granted, for what time and the tenure by which it is held. 3. The redendum, or reservation upon which the grant is made. 4. The condition, on the happening of which the estate granted may be defeated. 5. The warranty. 6. The covenants. 7. The conclusion, giving the execution and date •of the deed if it has not been already inserted. Willard on Real Estate, 381 ; 2 Bl. Com. 297-304; 4 Kent's Com. 460; 2 Wait's Act. & Def. 496. 204. What is a seal ? A seal is a wax or wafer with an impression. A piece of paper attached to the instrument by a wafer is a good seal, while the letters " L. S." which in some States are used in place of a seal would not be valid as such here. Bingham on Real Estate 74; Willard on Real Estate, 382 ; 8 Wait's Act. & Def. 221. 305. From what time does a deed take effect? From its delivery and not from its date. Willard on Real Estate, 384; Bingham on Real Estate, 214; 4 Kent's Com. 454; 2 Wait's Act. & Def. 494 ; 8 id. 221. 206. How, or in what manner, must a deed he delivered f No particular form is essential to a valid delivery of a deed. It is only essential that the acts of the parties should clearly evince such an intent. But it is the better practice to use such language at the time of handing the deed to the grantee as will leave the intent of the parties beyond doubt. Willard on Real Estate, 384 ; Bingham on Real Estate, 216. 207. What is an escrow ? When a deed is not delivered absolutely but conditionally — that is, not to the grantee himself or to some person for him, but to a third person to keep until something is done by the grantee — it is said to be delivered, not as a deed, but as an escrow, i. e., as a scrowl or writing, which is not to take effect until the condition is performed, when it becomes a good deed. Willard on Real Estate, 385; Bingham on Real Estate, 224; 4 Kent's Com. 451, 454. The Law of Eeal Peopektt, 91 2<>8. How mu«t freehold property he conveyed ly a corporation ? By deed, under the corporate name and seal, unless certain officers are authorized by the act of incorporation to convey in their own names. Willard on Real Estate, 383 ; 8 Wait's Act. & Bef. 219, 220. 209. Who is a subscribing witness ? One who was present when the deed was executed, and who at that time subscribed his name as a witness of the execution ; or, one who was not present at the moment of the execution, but was called in by the parties immediately afterward, and who, on their acknowledgment that the instrument is their deed, sub- scribes it as a witness to that fact at their request. Willard on Real Estate, 387. 210. Before whom may a deed be acknowledged or proved ir^this state f Before any justice of the supreme court, or before a judge of a county court, a mayor or recorder of a city, a commissioner of deeds for a county or city, a justice of the peace or a notary public. 3 R. S. (7th. ed.) 226, § 4 ; Laws of 1845, chap. 109 ; Laws of 1859, chap. 360. 211. When is proof of the identity of the person executing the deed, and of the person malting the acknowledgment, necessary ? Whenever the officer taking the acknowledgment does not know that the person making the same is the person described in and who executed the deed. Willard on Real Estate, 390. 213. Does the law now make any distinction between married and unmarried women as to the manner of acknowledging the execution of conveyances? It does not. Laws of 1880, Chap. 300. 213. What is the effect of a failure to record a deed? The effect of not recording a deed will be to render it void, as against any subsequent purchaser in good faith and for a valu- able consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded. Willard on Real Estate, 396 ; 1 R. S. 756, § 1 ; 3 R. S. (7th ed.) 2215, § 1. 214. What effect does the alteration of a deed, after its execution 92 The IiAw of Real Peopertt. have upon the validity of the deed itself and upon the title tt the- estate conveyed hy it ? The alteration of a deed by a stranger, -without the consent . or privity of the parties, will not render the deed void, if the con- tents of the deed, as it originally existed, can be ascertained. But, the fraudulent alteration of a deed by the grantee will render the deed void, so that the grantee cannot recover in any action founded upon it. The title to the estate conveyed will, in either case, remain in the grantee, and the cancellation or destruction of the deed will not revest the title in the grantor. Willard on Eeal Estate, 400. 215. If A conveys to B all of a certain piece and parcel of land, known and distinguished on a certain map as lot No. — , contain- ing three and one-half acres, how much land will pass to B, if the lot designated contained twenty acres f Twenty acres, or the entire lot. Willard on Real Estate, 405. 216. If A grants to B lands lying between certain natural boundaries, which are permanent and well known, but fails to cor- rectly describe, in his deed, the courses and distances from one of such known objects to the others, which will control the natural or artificial boundaries ? The natural boundaries, and the cour&es and distances must be varied to conform to them'. Willard on Real Estate, 405 ; ' Wait's Act. & Def . 714. 217. J^ A, being seized of an estate in fee, transfers his whole right, by a deed of conveyance, to B, does A thereby create an estate ? He does not. The deed is, in effect, an assignment by which an existing estate is transferred, but by which no new estate is created. Bingham on Real Estate, 13, 125. 218. Can any person create an estate in fee ? An individual cannot create an estate in fee, as the power to create such estates is vested exclusively in the State. Bing- ham on Real Estate, 105. 319. Define what is meant by the legal term " covenant." A covenant is a kind of promise contained in a deed to do a The Law of Eeal Pkopeety. 93 dhect atit, or to omit one, and is a species of express contract, the breach of which is a civil injury. The person who makes such a covenant is called the covenantor, and he, to whom it is made, is called the covenantee. Willard on Real Estate, 411 ; Bingham on Real Estate, 384 ; 2 Wait's Act. & Def . 363 ; 8 id. 193. 220. What is meant hy the term " a covenant running with the land?" A covenant is said to run with the land, when either the liability to perform it, or the right to take advantage of it passes to the assignee of the laud. Covenants for quiet enjoyment, for further assurance, to repair, to pay rent and taxes, to yield up possession, etc., are covenants running with the land. Willard on Real Estate, 415, 417; Bingham on Real Estate, 399; 2 Wait's Act. & Def. 398 ; 8 id. 194. 221. What are the incidents necessary to make a covenant run with the land ? The covenant must : (1) Directly extend or relate to the land conveyed or demised ; (2) There must be a privity of estate between the covenanting parties ; (3) The owner of the property must take the legal estate. Willard on Real Estate, 415-419 ; Bingham on Real Estate, 400. 222. Are any covenants implied in a conveyance of real estate? At common law, in the absence of express covenants, certain covenants would be implied ; but the Revised Statutes provide that no covenant shall be implied in any conveyance of real €state, whether such conveyance contain special covenants or not. Willard on Real Estate, 411. 223. What covenants are sometimes inserted in a deed convey- ing all the estate of the vendor ? The vendor sometimes covenants. (1) That he is seized in fee ; (2) That he has power to convey ; (3) For quiet enjoy- ment by the purchaser; (4) That the estate is free from incum- brances ; (5) For further assurance, and (6) That the vendor wiU forever warrant and defend. Willard on Real Estate, 412 ; 4 Kent's Com. 471. 94 The Law op Keai. Property. 224. What is the nature of the contract created bi/ a covenant of seisin ? It is an assurance by the grantor to the grantee that the grantor has the very estate, both in quantity and quality, which lie professes to convey. It is a personal contract and does not run with the land. 2 Wait's Act. & Def. 373 ; 8 id. 197. 225. If a person covenants that he is seised in fee of certain lands, when in fact he has only a less estate, when does the right of action for a breach of the covenant arise ? The covenant is broken when it is made and a right of action on the covenant arises immediately. 8 Wait's Act. & Def. 197. 226. What is necessary to a breach of a covenant for quiet enjoyment. A covenant for quiet enjoyment can be broken only by an eviction, actual or constructive, from the premises conveyed, or some portion thereof. 2 Wait's Act. & Def. 3^3 ; 8 id. 196. 227. IT, being in possession of certain lands, conveyed ther/i to A by a deed containing a general covenant of warranty. A died intestate, leading B his only heir at law. B conveyed the lands- to C by a quii^claim deed. F claiming the lands so conveyed by title paramount to that of H the original warrantor, brought eject- ment against 0, and was put in possession of the lands under the judgment in that action. What remedy, if any, has C under these facts ? He may maintain an action against H upon the covenant of warranty contained in the conveyance to A. 8 Wait's Act. & Def. 195. 228. Whatisaleasef A lease is properly a conveyance of lands or tenements '{^usually in consideration of rent or other annual recompense) made for life, for years, or at will, but always for a less time than the lessor has in the premises ; for if it be for the whole in- terest, it is more properly an assignment of a lease. Willard on Real Estate, 423; 1 Wait's Law & Pr. (6th ed.) 330. The Law of Eeal Pkopeett. 95 229. What leases are hy the statute qffrdudg required to be in writing ? All leases for more than one year. Willard on Real Estate, 425. 230. Whxit is the longest term for which agricultural land can be leased? No valid lease of agricultural lands can be made for a longer term than twelve years if it reserves any rent or service of any kind. Willard on Real Estate, 432. 231. What is an interesse termini, and is it assignable ? An interesse termini is that species of property or interest which a lessee for years acquires in the lands demised to him before he has actually become possessed of them by entry. It may be granted over to another, or may be extinguished by re- lease. Bingham on Real Estate, 227, 230. 232. What are the appropriate words for creating a lease? Any words, showing the intention of the parties, are suffi- cient ; but the proper words are " demise, lease, and to farm let. "Willard on Real Estate, 423. 233. What are appropriate words for creating an assignment ? The terms usually employed are " assign, transfer and set over " but any other words that show the intent of the parties will have a like effect. Willard on Real Estate, 439. 234:. What is a defeasance ? A collateral deed made at the same time with some other principal deed or instrument and containing certain conditions, on the performance of which the intentions of the principal deed may be defeated or rendered null and void. Willard on Real Estate, 440. 235. In what cases is the order or authority of a court necessary to enable the owner of real estate to convey the fee ? 1. Where the owner is a religious corporation ; or, 2. An in- fant ; or 3. An idiot,lunatic or habitual drunkard, against whom a commission has been awarded and whose estate has been put in. the hands of a committee. Willard on Real Estate, 445. 96 The Law of Real Pkopekty. 236. Within what time and upon what terms may a judgment debtor redeem real property sold hy the sheriff under an execution f He may redeem such property within one j'^ear from the time of sale, by paying to the purchaser, his personal represent tatives, or the officer who made the sale, the amount bid on the land he desires to redeem, together with the interest thereon from the time of sale, at the rate of ten per cent per annum. Willard on Real Estate, 459 ; 4 Wait's Practice, 100-111 ; Code of Civil Pro., § 1446. 237. Is this right of redemption confined to the judgment debtor ? It is not. It may be exercised by the grantee of the judg- ment debtor, who has by any means acquired an absolute title to the premises sold ; or, in case of the death of the judgment debtor, by his devisee or heir. Willard on Real Estate, 459 ; Code of Civil Pro., § 1447. 238. In what cases, and within what time, may a creditor of the judgment debtor redeem the real estate of such debtor after its sale by the sheriff under an execution f Any creditor, having a judgment or decree rendered within fifteen months from the time of sale, or having a mortgage duly recorded within that time, which is a lien and charge upon the premises sold, may, on the failure of the debtor to redeem within the year, acquire all the rights of the original purchaser, by pay- ing the amount paid for the premises, with interest at seven per cent from the time of sale. This right can be exercised only within the three months after the expiration of the year from the time of sale. Willard on Real Estate, 460 ; Code of Civil Pro., §§ 1449-1455. 239. What is the nature of the interest which the purchaser and the judgment debtor have, respectively, in the lands sold under an execution, during the fifteen mortths immediately succeeding the sale ? ' Until the expiration of the fifteen months following the time of sale, the title to the land is still vested in the debtor, and the purchaser has only a lien. But, after the expiration of that * time, and on the execution of a deed by the sherifE, the pur- -The Law of Real Pkopekty. 97 chaser becomes vested with the legal estate relating back to the time of the sale on the execution. Willard on Real Estate, 462 ; €ode of Civil Pro., § 1440. 240. What do you understand hy the right of eminent domain? It is the ultimate right of the State to appropriate to public purposes, not only the public property, but the private property of all persons within its territorial limits. Willard on Real Estate, 464 ; 6 Wait's Act. & Def. 300. 241. What limit is there to the right of the State to appropriate private property for public purposes ? The constitution of the State, while recognizing the right as ■existing, provides that private property shall not be taken for public use without just compensation. Willard on Real Estate, 465. 242. If your client was about to purchase a certain parcel of land and wished you to prepare an abstract of the title, how far back would you deem it necessary to carry your search for judgments •against the vendor ? A search for judgments against the vendor need not go back over a period greater than ten years, as from and after ten years from the time of docketing, they cease to be a charge upon land, as against purchasers in good faith. Willard on Real Estate, 529 ; Code of Civil Pro., § 1251. 243. In case the search discloses judgments against the vendor, ■docketed within ten years, and undischarged of record, but which are known to have been paid, what is the proper course for the pur. chaser to pursue ? He should cause satisfaction to be acknowledged by the judgment creditor, and to have the docket of the judgment can- celed and discharged by the clerk of the court. Willard on Real Estate, 533. 244. Is it necessary to notice, in an abstract of title, any mort- gages of the land to be conveyed which are not recorded ? It is not, as a bona fide purchaser of land, without notice of a prior unrecorded mortgage, holds the land, discharged of its lien, Willard on Real Estate, 121. 7 98 The Law of Real Peopekty. 245. Mention some of the principal things to he noticed, in mak* ing an abstract of title, where the party intending to sell or mort' gage the premises in question derived his title thereto hy descent. The principal things to be considered are such matters as relate to the title of the ancestor, and the right of the vendor by descent. The period over which the search of the title of the ancestor should extend is to be determined by circumstances. The search should disclose whether there are any vested or con- tingent rights to dower which have not been released or discharg- ed; whether the vendor is the legitimate heir of the former owner ; whether there are any other heirs to the inheritance who- have not conveyed their share of the same to the vendor ; and whether there are any outstanding terms for years, created by prior parties, still subsisting. Willard on Real Estate, 539-541. 246. What shoidd be the nature of the inquiry, in making an, abstract of a title derived hy devise ? In addition to the usual search for judgments and mortgages^ there should be an investigation of the manner in which the will was executed ; whether it has been proved as a will of real estate^ and properly recorded ; whether the testator has devised the fee simple to the vendor, or otherwise ; whether the testator's debts and legacies have been charged upon the real estate ; and whether there is still any outstanding claim for dower, affecting the premises. Willard on Real Estate, 541. 247. When an estate in lands is transferred from a vendor to a vendee, who is entitled to the original deeds ? If the vendor conveys the entire lot, of which he has the- title, by a conveyance in fee, without any covenants of warranty, the title deeds should go to the grantee, as an incident of the grant ; but if the vendor conveys only n part of his estate, and retains the balance himself, the vendee is not entitled to the- deeds, unless they are expressly granted to him by the terms of the conveyance. Willard on Real Estate, 547. 248. Who should he at the expense of preparing the title deeds and maldng the requisite searches for incumbrances ? In the absence of any agreement in the matter, it is the duty of the vendor to prepare the title deeds, at his own expense, and likewise to make the requisite searches for incumbrances. Willard on Real Estate, 562. Pebsonal Pkopekty. 99 CHAPTER VI. PERSONAL PROPERTY. 1. What do you understand hy the term '■'■personal property? " It is a term usually employed to designate all things tempo- rary aiid movable, and such as are comprehended under the general word chattel. All property not of a freehold nature, and descendible to the heirs at law, is so denominated. 2 Kent's Com. 340 ; 2 Bl. Com. 384. 3. What is the definition of personal property given in the Code of Civil Procedure ? The words "personal property," as used in that act, are declared to include money, chattels, things in action, and evi- dences of debt. Code of Civil Pro., § 2343. 3. What is a chattel f Chattel is a general term applied in law to every species of property which is not real estate or freehold. 2 Bl. Com. 385 ; 2 Kent's Com. 342 ; 2 Wait's Act. & Def. 219. 4. What is the distinction between a chattel real and a chattel personal ? Chattels real are interests issuing out of or annexed to real estates, and partake of one quality of such estates, viz., immo- bility, which denominates them real, but lack the other, viz., a sufficient, legal, indeterminate duration, and hence are termed chattels. Chattels personal, on the contrary, lack that immo- bility which distinguishes chattels real, and are, strictly speaking, things movable, which may be annexed to or attendant on the person of the owner, and carried about with him from one part of the world to another. 2 Bl. Com. 387 ; 2 Wait's Act. & Def. 219. 5. How is property, in things personal, divided f Into property in possession and property in action. And IQO Personal Pkopektt. property in possession is again divided into absolute and qualified property. 2 Bl. Cora. 388 ; 2 Kent's Com. 347 ; 2 Wait's Act. & Def. 220. 6. What do you understand hy absolute property in a chattel ? Absolute property denotes such a sole and exclusive right and occupation of any movable chattel that its control and ownership cannot be separated from its possessor without some act or default of his own. It is that property which a man has in inanimate things, as goods, money, etc., or in domestic animals, as horses, sheep, and the like. 2 Bl. Com. 388 ; 2 Kent's Com. 347. 7. What is a qualified property in a chattel? It is a transient, special or conditional interest or right in a chattel which may be divested by the happening of some par- ticular event, and without the concurrence and consent of the party having such right or interest. The lawful possession and occupation of a chattel or thing, not coupled with the power to render such possession and occupancy permanent, are the charac- teristics of this species of property. 2 Bl. Com. 391; 2 Kent's Com. 347-350. 8. From what circumstances may the qualified character of pro- perty in a thing or chattel arise f It may arise from the nature of the thing possessed, or it may arise from the nature of the title by which it is held. Thus, a person can have only a qualified ownership or property in the elements of air, light, water, etc., as the property in them ceases -when they are out of possession. So a person can have only a qualified property in goods bailed to him, as his property may be defeated at any time by the act of the bailor. 2 Bl. Com. 395 ; 2 Kent's Com. 347-350. 9. What is meant by the term chose in action ? Chose in action is a phrase which is sometimes used to signify the right of bringing an action, and in other cases is used to denote the thing itself which forms the subject-matter of the right, or with regard to which that right is exercised ; but it more properly includes the idea of the thing itself, and the right of action as annexed to it. 2 Bl. Com. 396 ; 2 Kent's Com. 351 ; 2 Wait's Act. & Def. 250. Personal Phopeety. ^"^FTi%* ^101 10. May pergonal property he held injoint tenancy or in tenanetf in common? It may. When held in joint tenancy, the right of survivor- ship applies, as in case of joint tenancy in lands. But, for the encouragement of husbandry and trade, it is held that stock on a farm, though occupied jointly, and also stock used in a joint un- dertaking, by way of partnership in trade, shall always be con- • sidered as common", and not as joint property, and that the doc- trine of survivorship shall not apply thereto. 2 Bl. Com. 39&; 2 Kent's Com. 350 ; 2 Wait's Act. & Def. 246. 11. How may title to personal property he acquired f It may be acquired : (1) By original acquisition ; (2) By transfer by operation of law ; (3) By transfer by act of the par- ties. 2 Kenfs Com. 355; 12. What do you understand hy '•'■occupancy" and '•'• title hy occupancy ? " ' Occupancy is the taking possession of those things which before belonged to no one. Title by occupancy is that right to continued possession that arises from such taking. Title by oc- cupancy may also be acquired in goods formerly owned by an- other, where the former owner has completely relinquished them. The cases in which title by occupancy can be now acquired are exceedingly limited, as compared with those under former rules. ' 2 Bl. Com. 258, 400 ; 2 Kent's Com. 356 ; 2 Wait's Act. & Def. 231. 13. If A cuts down the trees of B and coverts them into shingles in whom is the property in the shingles vested? In B, if he can prove the fact that the shingles were manu- factured from his trees. In that case B acquires title to the prop- erty in its improved form hy accession, which is a title founded upon the right of occupancy. 2 Bl. Com. 404 ; 2 Kent's Com. 360 ; 2 Wait's Act. & Def. 238 ; 2 Wait's Law & Pr. (5th ed.) 666, 567. 14. ^ A and B have each grain of different qualities and value, stored in the same huilding, and separated hy only a slight parti- tion, and A causes this partition to give way, in order that his .grain may heoome mixed with that of B, which is of better Quality, 102 Personal Pkopertt. by what means may B protect himself against loss and recover hit own grain again f B's remedy is to take the entire grain stored, and dispose of it as he deems best. By fraudulently intermixing his grain with that of B, so that it cannot be distinguished, A has lost, and B has gained, the property which A had in the grain ; and A is entitled to no compensation from B for the property so taken. 2 Kent's Com. 364; 2 Bl. Com. 205 ; 2 Wait's Act. & Def. 241; 2 Wait's Law & Pr. 568. 15. By what right does B acquire title in the grain of A, in the case given ? By the right of accession. 2 Kent's Com. 360. 16. If a partition, separating the grain of two several owners, should fall by reason of lack of skill in its construction, and with- out fault in either party, and the grain should become so intermixed that it could not be distinguished, in whom would be the right of prop- erty in the grain ? In both the original owners, as tenants in common. 2 Kent's Com. 364, 365 ; 2 Bl. Com. 405 ; 2 Wait's Act. & Def. 240. 17. What would be the rule if goods, fraudulently mixed by one owner with those of another, still retain their identity so that they can be equally separated and distinguished ? In that case no change of property takes place ; but it is for the party guilty of the fraud to distinguish his goods satisfac- torily, as no court of justice is bound to discriminate for him. 2 Kent's Com. 264, 265 ; 2 Wait's Act. & Def. 241. 18- B.as an author, at common law, any exclusive property in his published works ? He has not. An author has, at common law, an exclusive property in his unpublished manuscript, but none whatever in printed copies of the same, if published with his consent. By publication they become common property, subject to the free use of the community at large. In this country, an author's exclusive right of literary property in his published works depends upon the acts of congress of 1790 and 1802, and in Eng- land upon the statute 8 Anne, ch. 19, and subsequent statutes. Pbhsonal Peopeety. 103 2 Kent's Com. 367, note ; 2 Bl. Com. 407 ; 3 Wait's Act. & Def ^ 743. 19. What is a patent? ^ It 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. 2 Kent's Com. 366. 20. Who may obtain a patent in this country ? Any person, being a citizen of the United States, or any alien residing in the United States at the time of his application, having discovered or invented any new and useful art, machine manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not known or used by others before his discovery or invention thereof, and not, at the time of his application for a patent, in public use or sale, with his consent or allowance as the inventor or discoverer, may obtain a patent for the same by conforming, in his application, to the requirements of the law. 2 Kent's Com, 366, 367. 21. Is a patent right assignable, and is such right liable to sale on execution ? The right is assignable, but is not liable to sale on execution, although the article patented may be so seized and sold. 2 Kent's Com. 372; 2 Wait's Act. & Def. 427. 32. What is the rule in respect to the right to the exclusive use of trade-marks f Every manufacturer and every merchant for whom goods are manufactured, has a right to distinguish his goods by an appropriate and particular mark or device, and the courts will protect him in the exclusive use of such device or trade-mark, and grant injunctive orders restraining the use of such trade- mark by others. 2 Kent's Com. 372, note; 3 Wait's Act. & Def. 741. 23. Sas the writer of a letter such a property in it as will enti- tle him to an injunction to restrain its publication, by the person to whom it is addressed, or strangers who have acquired possession , of it? He has. 3 Waits' Act. & Def. 743, 744. 104 Personal Pbopeoty. 24. When is the title to personal property transferred hy act of law? In cases of forfeiture, succession, marriage, judgment, in- solvency and intestacy. 2 Kent's Com. 385 ; 2 Wait's Act &. Def. 244. 25- In what cases may government acquire the property of citir zens hy forfeiture ? In New York, the right of the State to acquire the property of individuals, by forfeiture, is limited to those cases in which the individuals whose property has been taken have been convicted of treason, and even in those cases the right continues only during the lives of the persons so convicted. The right of for- feiture in this country is purely statutory. 2 Kent's Com. 385^ 386 ; 2 Wait's Act. & Def. 244. 26. In what cases will the recovery of a judgment effect a change of title ? In cases where the owner of a chattel has brought an action of trespass or trover against one unlawfully in possession, or where, waiving the tort, he has brought his action to recover the price or value of the thing taken. In either case the recovery of a judgment by the plaintiff, while it vests a title to the damages in the plaintiff, at the same time operates as a transfer to the defendant of the plaintiff's title to the chattel, concerning which the cause of action arose. 2 Kent's Com. 387-389 ; 2 Bl. Com. 436 ; 2 Wait's Act. & Def. 245. 27. In what cases may title to personal property be acquired bif intestacy ? Where a person dies, leaving personal property undisposed of by will. In such cases the widow, and next of kin, acquire title to so much of the personal estate of the intestate as remain* after payment of the debts of the intestate. 2 Kent's Com. 408. 28. What is essential to a transfer of title to personal property hy parol gift? Delivery of the chattel or chose in action to the donee. The delivery must be actual, if the thing given is capable of de- Personal Property. 105 livery ; and, if otherwise, there must be some act equivalent to actual delivery, showing the intent of the donor to part, not only with the possession, but also with the dominion of the property. 2 Kent's Com. 439 ; 3 Wait's Act. & Def . 489 ; 8 id. 289 ; 1 Wait's Law & Pr. (5th ed.) 807. 106 CONTBACTS. CHAPTER VII. CONTRACTS. 1. What is a contract ? A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing. 1 Pars, on Cont. 6 ; 2 Bl. Com. 446 ; 1 Wait's Act. & Dei 70 ; 1 Story on Cont. § 1. 2. Grive the general classification of contracts? Every contract must belong to one of two classes, viz.: contracts by specialty or simple contracts. The first class in- cludes contracts under seal and contracts of record, and the second class includes all others. Contracts are also distinguished as written or parol, express or implied, executed or executory. 1 Pars, on Cont. 7 ; 1 "Wait's Act. & Def . 72. 3. Give the distinction between an executed and an executory contract ? An executory contract is one whose subject-matter is to be performed on the part of one or both of the parties at some future time, while an executed contract is one whose subject- matter has been fully performed. A contract va&j be executed as to one of the parties, and executory as to the other ; as where goods are Sold on credit, and delivered at the time of sale. 1 Wait's Law & Pr. (5th. ed.) 184 ; 1 Wait's Act. & Def. 74. 4. What are the essentials of every valid contra^ ? 1. Parties who have a legal capacity to contract; 2. A sufficient legal consideration ; 3. The assent of the parties ; and 4. Subject-matter, or thing to be done, which must be in itself a legal act. 1 Wait's Law & Pr. 183 ; 1 Pars on Cont. 9 ; 1 Wait's Act. & Def. 70. 5. Who are wholly, or in part, incapable of making a valid con- tract f Infants, lunatics, idiots, and all persons temporarily or per- ■ CONTEACTS. 107 manently of unsound mind. 1 Wait's Law & Pr. 187 ; 1 Pars, on Cont. 9. 6. What was the rule of the common law in respect to contracts made hy married women during coverture ? At common law all contracts made by a married woman -during coverture were, with a few exceptions, absolutely void. She could neither bind herself or her husband by her contract ; neither could she, by virtue of her contract, acquire to herself, and for her exclusive benefit, any right or property. Tyler on Inf. & Gov. (2d. ed.) 316 ; Reeve's Dom. Rel. 182 ; 1 Pars, on •Cont. 345. 7. What changes have been effected in this rule of the common law hy statute f By the acts of 1848 and 1849, the common-law rule was so far relaxed as to permit a married woman to acquire an estate separate from her husband's, and to hold it for her own benefit. By the act of 1860, she was empowered to sell, assign and transfer her separate personal property ; by the act of 1862, she was au- thorized to bargain, sell and convey real property held by her as -& separate estate, and to enter into any contract in reference to the same, with the like effect in all respects as if she were un- married ; by the act of 1884, a married woman may contract, ■with any person except her husband, to the same extent, with like effect, and in the same form as if unmarried, and both she and her separate estate are liable on such contract whether it relates to her separate estate or business or otherwise ; by the ■act of 1880 she was authorized to contract with her husband for the partition or division of lands held by them as tenants in •common, joint tenants, or as tenants by the entireties ; and by the act of 1887 she was authorized to convey lands directly to her husband, and to hold lands conveyed directly to her by iim. 8. Can a wife, under existing statutes, make any contract in respect to her sole and separate property which shall he binding upon her husband, or which shall render him or his property liable therefor ? She cannot. Laws of 1860, ch. 90, § 8, as amended by Laws of 1862, ch. 172, § 4; 2 Wait's Law. & Pr. (5th. ed.) 305.. 108 Contracts. 9. A party enters into a contract on the day previous to his twenty- first birthday, and afterward desires to avoid the contract; can, he do so on the ground of infancy ? Grive the reason. He cannot, for the reason that he was of full age at the^ time of entering into the contract. The law recognizes no parts of a day, and when the last day of an infant's minority begins it is considered as ending. 2 Wait's Law & Pr. (5th. ed.). 663. 10. -A loaned money to B, and took the bond and mortgage of the latter as security for the repayment of the loan. Subsequently, upon an inquisition taken, B was declared to be insane. The loan, was made in good faith, without knowledge of the insanity of the borrower, and without notice or information calling for inquiry. Can A enforce the bond and mortgage by action on the bond or by foreclosure ? He can. In such case the insanity of the mortgagor is no defense. 8 Wait's Act. & Def. 566. 11. How would you determine whether the liability incurred upon a contract was Joint or several, or such that it might be treated as either joint or several at the election of the other contracting party f By the terms of the contract if they are express, otherwise by the intention of the parties as gathered from all the circum- stances of the case. If the obligation is undertaken by two or more, the law will presume a joint liability in the absence of words of severance showing a different intent. 1 Pars, on Cont. 11; 1 Wait's Law & Pr. ^5th ed.) 187. 12. When, a party has aright to elect whether he will treat d liability as joint, or joint and several, what is the rule as to the par- ties defendant in an action to enforce such liability ? In an action to enforce a joint and several liability, the plaintiff must proceed either severally against each or jointly against all. He cannot treat the liability as several as to some of the obligors, and joint as to the rest. 1 Pars, on Cont. 12. 13. Where two or more persons are jointly, or jointly and severally liable on a contract to pay money, and one of them payf PONTEACTS. 109 the entire debt, what retnedy has he as against his co-ohligors ? He has the right of contribution, or the right to recover from iis co-obligors so much of the entire sum paid as is in excess of his share of the original liability. 1 Pars, on Cont. 31 ; 1 Wait's Law & Pr. (5th ed.) 188. 14. What is meant hy the term nudum pactum, and what is the legal force of an instrument to which it may properly he applied. A promise to do or not to do a specified act, when made wholly without consideration, is called a nudum pactum. An i-greement so made, whether written or parol, has no legal force or effect, and is wholly void. 1 Wait's Law & Pr. (5th. ed.) 188 ; 1 Pars, on Cont. 427. 15. Can a contract under seal he impeached for want of a suf- ficient consideration ? It can. The seal merely raises a presumption of the existence -of a sufficient consideration, which may be rebutted in the same manner and to the same extent as if the contract were unsealed. 1 Pars, on Cont. 428 ; 1 Wait's Law & Pr. (5th ed.) 210. 16. When is, and when is not a total want of consideration a ^perfect defense in an action upon a contract ? The want of consideration is no defense in an action upon a negotiable promissory note or bill of exchange which has passed into the hands of a hona fide holder for value before it became •due. But in actions upon all other contracts, the want of con- sideration is a perfect defense. Edwards on Bills and Notes, 293 ; 1 Wait's Law & Pr. (5th ed.) 210. 17. Define the different kinds of considerations known in law. Considerations are either good or valuable. A valuable con- sideration is one which either is, or is convertible into money. Marriage is an apparent exception to the rule. A good considera- tion may consist wholly in natural love and affection, and be in no sense of a pecuniary character. 2 Bl. Cora. 444 ; 1 Pars, on Cont. 430 ; 1 Wait's Law & Pr. (5th ed.) 190. ' 18. A, heing indebted to B upon two promissory notes, one of which is due and payable, offers to pay the note then due, on con- dition that B will extend the time of payment of the other, which 110 Contracts. offer B accepts ; can B maintain an action against A on default in the payment of the second note at its maturity f or will the new agreement defeat the action ? The action can be maintained notwithstanding the new agreement, as the payment of a note then due would form na cohsideration for a promise to extend the time of payment of the other. 1 Wait's Law & Pr. (5th ed. ) 190. 19. Would the rights of the parties remain the same if, in the case above given, the agreement had leen to extend the time of pay- ment of a note already due, in consideration of the payment of the. other note before its maturity ? They would not. The payment of a note before maturity would be a sufficient consideration for the promise to extend the time of payment of the other. 1 Wait's Law & Pr. (5th. ed.) 190, 191. 20. What is essential to the legal sufficiency of a consideration for a promise ? It is essential that the party promising shall receive some benefit for his promise, or that the party to whom the promise is made shall suffer detriment thereby. If no detriment is suffer- ed by the one and no benefit is received by the other, there is no consideration for the promise. 1 Wait's Law & Pr. (5th. ed.) 190; 1 Pars, on Cont. 431 ; 1 Wait's Act. & Def. 92. 21. A tenant expressly covenanted in his lease to make certain repairs on the demised premises at his own expense, but neglected to perform this part of his contract. The landlord then agreed that if the tenant would make these repairs he would pay one half of the expense incurred therein. The tenant then made the repairs, and on the refusal of the landlord to pay any part of the expenses, brought an action against him to recover one half of the cost of the improvements. Can he recover ? He cannot, for the reason that the performance by him of that which he was already bound by contract to do furnished no consideration for the landlord's agreement to pay. 2 Pars, on C^nt. 437 ; Pollock on Cont. 161 ; 8 Wait's Act. & Def. 14. 33. If a sufficient consideration in fact exists, is it essential that it shall be expressed in the contract ? Proof of the mere existence of a sufficient consideration Contracts. Ill ■will be sufficient to uphold a contract, unless such contract is one in which it is required by the statute of frauds that the con- sideration shall be express. 1 Wait's Law & Pr. (5th ed.) 189. 33. The right of action upon a debt due from Ato B is barred hy the statute of limitations ; but A acknowledges his indebtedness, and promises to discharge the same at a specified time ; can B ■enforce the new agreement, there being no new consideration for the promise ? B's right to recover depends upon the sufficiency of the evidence of a new or continuing contract, rather than upon the sufficiency of the consideration therefor. The statute of limit- ations does not discharge the indebtedness of A, but merely sus- pends the remedy of B, and a new promise will revive the origi- nal liability and continue it without a new consideration to up- hold it. The Code, however, requires that to have this effect, such promise shall be contained in some writing signed by the party to be charged thereby. 1 Wait's Pr. 63 ; 1 Pars, on Cont. 434 ; 8 Wait's Act. & Def. 19 ; Code of Civil Pro. § 395. 24. For the sum of one dollar, A agrees to convey to B a valua- ble farm : Will the inadequacy of the consideration affect B^s right to recover in an action against Afar a breach of the contract? The inadequacy of the consideration cannot affect B's right to recover, although it may affect the amount of damages recov- erable and the character of the relief to be obtained. A court of equity would not decree a specific performance of such a con- tract, nor would a court of law award more than reasonable damages. l.Pars. on Cont. 436 ; 1 Wait's Law & Pr. (5th ed.^ 194. 25. When will a compromise of a disputed claim for the purpose of avoiding litigation be deemed a good consideration for a promise to pay money ? In every case in which the result of a litigation respecting such claim might be involved in doubt. But where the claim made shows upon its face that no legal liability could arise upon it, a promise to pay money to avoid the litigation of such claim will be void for want of consideration. 1 Wait's Law & Pr. (5th ed.) 196-198; 1 Wait's Act. & Def. 96; 8 id. 16. 112 CONTKACTS. 26. What is a gift? A gift is a voluntary transfer of his property by one person to another without any consideration or compensation therefor. 1 Wait's Law & Pr. (5th ed.) 805 ; 2 Schoul on Pers. Prop. 55; 2 Wait's Act. & Def. 243 ; 3 id. 487 ; 8 id. 288. 27. Into what classes are gifts divided? Into two classes, gifts inter vivos, and gifts causa mortis. 1 Wait's Law & Pr. (5th ed.) 805. 28. What are the essential elements of a valid gift inter vivos? 1. A present intention to give on the part of the donor, exe- cuted by an actual or constructive delivery of the subject of the gift to the donee, or to some person for him, with intent to vest the title in the donee. 2. An acceptance of the gift by the donee. 3 Wait's Act. & Def. 488 ; 8 id, 288, 289 ; 1 Pars, on Cont. 234. 29. What are the essential elements of a valid gift causa mortis ? 1. It must be made with a view to the near approach of the death of the donor. 2. The donor must die of the ailment or peril which caused the apprehension of death. 3. There must be a delivery actual or constructive of the subject of the gift. 1 Wait's Law & Pr. (5th ed.) 805 ; 8 Wait's Act. & Def. 291. 30. What is the effect of the gift of the donor's own note ? The effect of the gift is merely to transfer to the donee the title to the paper on which the promise to pay is written. The donee cannot enforce the note against the donor or his estate. 8 Wait's Act. & Def. 291 ; 1 Wait's Law & Pr. (5th ed.) 806. 31. A indorses the note of B, and transfers it as a gift to G. The note had been previously indorsed by D, E and Gr. What is the legal effect of the gift ? The gift is valid as an executed contract, and vests C with the same property in the note that formerly was vested in A. At the maturity of the note C may recover as against all parties thereto except A. Edwards on Bills & Prom. Notes, 325 (307) ; 1 Wait's Law & Pr. (5th ed.) 806. 32. is there any, and if so what, distinction between the rights of parties to gifts inter vivos, and the rights of parties to gifts caum mortis ? There is a broad distinction. A gift inter vivos, made per- Contracts. 113 feet by delivery and acceptance, cannot be revoked by the donor ; wbile a gift eausa mortis, even if it be completed by delivery and acceptance, may be revoked by the donor at any time during his life. 1 Pars, on Cont. 235, 237 ; 1 Wait's Law & Pr. <5th ed.) 805. 33. Is it essential to the validity of a contract that the assent of the parties thereto should he given at the same time ? It is not. It is sufficient if the assent of one party to a pro- posed contract is given within a reasonable time and before the previous assent ©f the other party is withdrawn. 1 Wait's Law & Pr. (5th ed.) 212 ; 1 Pars, on Cont. 482 ; 8 Wait's Act. & Del 18. 34. A^ in New York, on the first day of May, writes to B in San Francisco, making an offer, and this letter reaches B on the eighth ■day of May. Forthwith, upon its receipt, B writes to A, accepting the offer, mailing the answer the same day. Upon the second of May, A writes and mails a second letter to B, withdrawing the offer, which letter reaches B upon the ninth of the same month. Is there a contract made between the parties ? There is. The contract was complete upon the deposit in the post-office of B's letter of acceptance. 1 Pars, on Cont. 484 ; 1 Wait's Law & Pr. (5th ed.) 213; 1 Wait's Act. & Def. 86; 8 id. 12. 35. If the finder of lost property restores it to the owner without -notice of a reward offered by the latter for its recovery, can he, on subsequently becoming apprised of the offer, claim and recover the reward f He cannot, for the reason that a person cannot accept an offer of which he has never heard, and therefore the essential element of assent of parties is absent from the supposed con- tract. 8 Wait's Act. & Def. 12. 36. What are covenants ? Covenants are the stipulations or promises contained in a sealed instrument. 1 Wait's Law & Pr. (5th ed.) 215. 37. What is a condition precedent? It i» one which is to be peEfocmed before some right depend- 114 Contracts. ' ent thereon accrues, or some act dependent thereon is per- formed. 1 Wait's Law & Pr. (5th ed.) 215 ; 1 Wait's Act. & Def. 76. 38. What is the general rule as to giving effect to the intentionof the parties in the construction of a contract f A contract must be so interpreted as to give effect to thfr mutual intention of the parties as it existed at the time of con- tracting, so far as the same iis ascertainable and as the words employed, when properly construed, and the rules of law will, permit. 2 Pars, on Cont. 494 ; Wait's Law & Pr. (5th ed.) 241 ^ 1 Wait's Act. & Def. 116 ; 8 id. 22. 39. When is the construction of a contract a matter of fact, and' when is it a matter of law f When technical terms, or words used in some peculiar sense are employed in makiilg a contract, the determination of their actual meaning is a question of fact. But when the meaning of the terms used is conceded or established, the construction of the entire contract becomes a matter of law. 1 Wait's Law & Pr. (5th ed.) 240 ; 1 Wait's Act. & Def. 114, 115. 40. A and B enter into a contract which, through mistake or in- advertance, fails to express their meaning. Can the court, on an- action being brought by A for a breach of the contract, give- to it such a construction as will express the intent of the parties, and thereby render B liable for a breach of the intended contract f It cannot. The office of construction is to interpret, and not to make, contracts. 2 Pars, on Cont. 497 ; 1 Wait's Law & Pr. (:5th ed.) 241. 41. If a contract is open to two constructions one of which woidd make the contract valid and one which would render the contract illegal, which construction will be preferred ? The one which will make the contract valid. 2 Pars, on Cont. 497, 500 ; 1 Wait's Act. & Def. 121. 42. What is the general rule of construction, where the words used in a contract are susceptible of a double meaning, and it is wiir <;ertain what was the real intent of the parties ? In such cases the presumption of law will be in favor of CONTEACTS. 115 common and ordinary over the unusual meaning of words ; the general over the particular ; the comprehensive over the re- stricted ; and, all other things being equal, if it is un certain whether words are used in an enlarged or restricted sense, that con- struction will be given which is most beneficial to the promisee. 1 Pars, on Cout. 496, 506; 1 Wait's Act. & Def. 121, 124. 43. When a contract is partly written and partly printed^ and there is a discrepancy between the part which is written and the part which is printed, what will be the rule of construction ? The written portions will be presumed to declare the actual intent of the parties, and will receive the preference in construc- tion. 1 Wait's Law & Pr. 245 ; 2 Pars, on Cont. 516. 44. When will several different instruments be taken together, in determining the construction of a contract ? Where several instruments are made at the same time, be- tween the same parties, and in relation to the same subject, or where they are not made at the same time, but may be connected together by reference from one to another, the several instru- ments will be held to constitute but one contract, and will be read in such order of time and priority as will carry into effect the intention of the parties, as such intention may be gathered from all the instruments taken together. 1 Wait's Law & Pr. 243 ; 2 Pars, on Cont. 503 ; 1 Wait's Act. & Def. 123 ; 8 id. 23. 45. Upon what theory are the personal representatives of the parties to a simple contract held bound by the contract? Upon the presumption of law that the parties intented to bind, not only themselves, but their personal representatives. 2 Pars, on Cont. 530 ; 1 Wait's Law & Pr. (5th ed.) 246. 46. When a contract requires a certain thing to be done, but spec- ifies no time in which it must be done, what is the presumption of law as to the time of performance ? The law presumes that the parties intended and agreed that the thing should be done within a reasonable time. 2 Pars, on Cont. 535 ; 1 Wait's Act. & Def. 119. 47. Is parol evidence admissible in, aid of the construction of a written contract ? Parol evidence is admissible to explain or show the true 116 CONTEACTS. meaning and intent of the parties where the language of the contract is ambiguous, obscure or technical. But if the language of the contract is plain and unequivocal and no doubt or un- certainty exists as to the meaning of the terms used, the contract is the only competent evidence of the intent of the parties, and parol evidence is inadmissible to vary or contradict its terms. 2 Pars, on Cont. 548 ; 1 Wait's Act. & Def. 118, 121, 131 5 8 id. 22 ; 3 Wait's Law & Pr. (5th ed,) 519, 546. 48. How would you establish the fact that certain words in a contract were used in a technical, and not in their ordinary sense ? - By parol evidence, tending to show that the words in ques- tion, when used concerning the subject-matter of the contract, have always been employed to convey a meaning other than that conveyed when ordinarily used, and that this fact was known to both parties to the contract. 3 Wait's Law & Pr. (5th. ed.) 530, 537 ; 2 Pars, on Cont. 542. 49. What is the rule of law as to the validity of a contract con- sidered in relation to the place ivhere it is made ? It is a general rule that a contract which is valid where it is made, is valid everywhere ; and if void or illegal by the law of the place where it is made, it is void everywhere. 2 Pars, on Cont. 570 ; 1 Wait's Act. & Def. 129. 50. Are there any exceptions to this rule ? There are. A contract valid at the place where it is made but which is injurious to the public rights, offensive to mor- als^ or in contravention of the policy or the laws of the place where it is sohght to be enforced, may be held invalid by the courts of the latter place. Story on Conflict of Laws, 203, 215 ; 1 Wait's Act. & Def. 130. 51. ]f a note bearing, interest ismad& in one State^ but by its terms is payable, in another and the rate qf interest is not specified, what rate of interest is recoverable, assuming that the legal rate of interest is higher in one State than in the other ? Interest is recoverable at the rate fixed by the laws of the State where the note ia payable. 2 Wait's Law & Pr. (5th. ed.) Contracts. 117 138 ; Edwards on Bills & Prom. Notes, 714 (673) ; 2 Pars, on Cont. 586 ; Tyler on Usury, 84. 52. A promissory note hearing interest at ten per cent is made in Louisiana, hut is payable in New York. Is the note usurious ? It is not. The parties to a note have a right to stipulate for the pa3rment of interest according to the law of the place of contract, or according to the law of the place of performance at their election. See Edwards on Bills & Prom. Notes, 717 (677) ; 2 Pars, on Cont. 584 ; 8 Wait's Act. &. Def. 596! 53. What is a sale ? A sale is an agreement by which the title to property is transferred from one person to another for a legal consideration. 2 Wait's Law & Pr. (5th. ed.) 1 ; 8 Wait's Act. & Def. 455. 54. What questions of intent are essential in determining wheth- er a given contract is in effect a sale ? In order to determine whether a given contract amounts to a sale, it is necessary to determine whether it shows an intent that the title to the property or subject-matter of the contract shall pass from one of the parties to the other, coupled with an intent that the price shall be payable absolutely. If such intent is shown the contract is a sale. 2 Wait's Law & Pr. (5th. ed.) 2 ; 1 Pars, on Cont. 519. 55. A leases his dairy farm to Bfor a term of five years at a certain annual rent. The lease provides that at the expiration of the term, B shall return to A cows of an age and quality equal to those received hy B under the contract. Was the contract a sale or a hailment, and could the cattle he levied on under an execution against the property of B? The contract was a sale under which the title to the cattle passed from A to B, and consequently became liable for the debts of the latter. 2 Wait's Law & Pr. (5th. ed.) 3. 56. Give one of the tests hy which to determine whether a trans- action is a hailment or a sale ? If by the terms of the contract the identical thing received is to be restored, the transaction is a bailment ; but if the party receiving the property is at liberty to return' a thing of equal 118 CONTEACTS. value, or the money value, the transaction is a sale. 5 Wait's Act. & Def. 537 ; 8 id. 455 ; 2 Wait's Law & Pr. (5th ed.) 4. 57. A, having property of B in Mb possession which he desired to purchase, offered to give f 20 for it, B declined the offer, hut added, " Give me $25 /or it and it is yours." A replied, '■'•I will do it ; it is a bargain." Does A thereby become vested with the title to the property ? He does not. There being no agreement for credit, the title would not pass until the payment of the purchase price. 8 Wait's Act. & Def. 456. 58. A sells a horse to B for a certain sum, taking B's note for a' part of the purchase-money. It is afterward discovered by the parties that the horse was dead at the time of the sale. Oan A recover upon the note ? He cannot. A sale of property which both parties suppose to be in existence, but which in point of fact has ceased to exist, is void and cannot be enforced. 2 Wait's Law & Pr. (5th ed.). 9 ; 1 Pars, on Cont. 622. 59. Does the title to the goods specified in a contract of sale pass in all cases upon delivery ? It does not. The parties may so limit the effect of the delivery by express agreement, that the title of the goods deliver- ed shall remain in the vendor until the performance of certain conditions or the happening of a certain event, as until the sale of the goods, or the payment of the full purchase price. 2 Wait's Law & Pr. 15 ; 1 Pars, on Cont. 537. 60. By an oral contract, A sold a wagon to B on a credit of four months, but upon the condition that the title to the wagon should remain in A until payment of the purchase money. The wagon was delivered to B at the time of the sale, and remained in his pos- session until he sold it to C, who purchased it in good faith, sup- posing B to be the absolute owner. B never paid A for the wagon. Bid get a good title to it as against A? He did, by virtue of the act requiring contracts for the con- CONTBACTS. 119 ditional sale of personal property on credit to be filed in the town clerk's and other offices. Laws of 1884, Chap. 315. 61. Does the act above mentioned apply to all personal property sold conditionally on credit f It does not apply to household goods, pianos, organs, scales, engines and boilers, portable saw mills and saw machines, thresh- ing machines and horse-powers, mowing machines, reapers and harvesters and grain drills with their attachments, provided that the contract for the sale of the same is esecuted in duplicate and one duplicate is delivered to the purchaser. Laws of 1884, Chap. ■315 ; Laws of 1885, Chap. 488, as amended by Laws of 1886, €hap. 495. 62. In case any of the above-mentioned articles are sold upon ' the condition that the title shall remain in the vendor or some other person than the purchaser until the payment of the purchase price, ■or until the occurring of a^ny future event or contingency, and the same are retaken by the vendor, or his successor in interest, what right has the purchaser, or his successor in interest f He has the right to fulfil the contract of purchase, and thereupon to receive the property, at any time witjhin thirty days after the same has been taken from him. If he does not fulfil ;the contract within that time he loses the right and all interest in the property. Laws of 1886, Chap. 495. ' 63. If aperson by means of fraud procures the sale and delivery to him of personal property, and then sells it to a bona fde pur- chaser for value, does the purchaser from the fraudulent vendee obtain any title to the property as against the original defrauded •vendor ? He obtains a good title as against the original vendor. 8 Wait's Act. & Def. 283. 64. A, knowing himself insolvent, purchases goods of B, with the design not to pay for them, and forthwith makes a general assign- ment to Q for the benefit of his creditors. Does C obtain such a title to the goods as will defeat an action brought by B for the recovery of their possession ? He does not. Not being a bona fide purchaser for value he 120 CONTEACTS. has no better title or interest than that of his vendor. 2 Wait'a Law & Pr. (6th ed.) 55; 1 Wait's Pr. 719, 721. 65. Can a thief transfer a valid title to stolen property hy a sale for full value to a bona fide purchaser? He cannot. 2 Wait's Law & Pr. (5th ed.) 33. 66. Into how mang classes may contracts of warranty he -divided ? Into four classes, viz. : two in respect to form, and two in respect to subject matter. In respect to form, contracts of war- ranty are express or implied ; in respect to subject-matter, there may be a warranty of title or a warranty of qualit3^ Pars, on Cont. 573. 67. A sells a horse to B, giving a written contract of warranty that the horse is sound. Can B recover for a breach of the contract of warranty on proof that the horse was unsound at the time of sale, if it also appears' that the unsoundness was unknown to A, and the warranty given in good faith ? He can. An express warranty extends to all the defects or faults which it covers, whether they are known or unknowa to the vendor. 2 Wait's Law & Pr. (5th ed.) 75. 68. Is a contract of warranty Tnade after the time of sale binding upon the vendor ? It is not. It is void for want of consideration. 2 Wait's Law & Pr. (5th ed.) 83. 69. What is the meaning of the maxim caveat emptor. By this maxim is meant, that in all executed sales, or sales of property which the vendor has on hand at the time of making a contract of sale, the purchaser must take the property at his own risk as to quality, if there is neither an express warranty nor fraud on the part of the vendor. 2 Wait's Law & Pr. (5th ed.) 90, 92. 70. What is the general rule respecting implied contracts- of warranty of quality f It is a general rule that where there is no express warranty COIfTEACTS. 121 of quality, the law implies none. 1 Pars, on Cont. 577 ; 5 Wait's Act. & Def. 561. 71. Crive some exceptions to the general application of the maxim caveat emptor f The sale of goods by sample carries with it an implied war- ranty that the goods correspond with the sample. So the sale of goods, to be procured or manufactured at a future day, carries with it an implied warranty that the goods shall be merchant- able, or of a medium quality. 2 Wait's Law & Pr. (5th ed.) 92 ; 1 Pars, on Cont. 585, 586. 72. When will, and when will not, the law imply a warranty of title to the thing sold? When the thing sold is in the possession of the vendor at the time of sale, the law will imply a warranty of title. But where a chattel is sold while in the possession of a third person, no warranty of title will be implied. 2 Wait's Law & Pr. (5th ed.) 92 : 1 Pars, on Cont. 574. 73. A, by a written contract of sale, which contains no clause of warranty, conveys a certain chattel to B. Prior to, and at the time of executing the cofitract, A makes representations and assertions amounting to an express warranty. Can B recover in an action against A upon a breach of this parol contract of warranty ? He cannot. Evidence of a warranty not contained in the con- tract of sale would be inadmissible, and the action would fail for want of proof. 1 Pars, on Cont. 589 ; 2 Wait's Law & Pr. (5th ed.) 103, 104. 74. What is the right of stoppage in transitu ? It is that right which the law gives to a vendor to stop and resume possession of goods on their way to a vendee who has purchased such goods on credit, and has subsequently been dis- covered to be insolvent. 1 Pars, on Cont. 595 ; 2 Wait's Law & Pr. (5th ed.) 104 ; Story on Sales § 318. 75. When does the right of stoppage in transitu cease? When the goods have come into the actual or constructive possession of the vendee, the vendor's right to reclaim the goods ceases. 1 Pars, on Cont. 901. 122 CONTBACTS. 76. A sells goods to B on credit, C lecoming surety for the frice. After the sale of the goods to £, but before they come into his possession, C discovers that B is insolvent. Can exercise the right of stoppage in transitu ? He cannot. The right of stoppage in transitu exists only between vendor and vendee, or between persons standing sub- stantially in that relation. 1 Pars, on Cont. 600 ; 2 Wait's Law ,& Pr. (5th ed.) 105 ; 5 Wait's Act. & Def. 612. 77. What will be the effect of an indorsement and delivery of a nil of lading by the vendee of goods to a second vendee ? The indorsement and delivery of a bill of lading of goods is a constructive delivery of the goods ; and, if made in good faith and for a valuable consideration, passes the property to the sec- ond vendee, and terminates the right of the original vendor to stop the goods in transitu. 1 Pars, on Cont. 606 ; 5 Wait's Act. & Def. 616 ; 8 id. 104. 78. When will a contract for the sale of any goods be void under the statute of frauds f Every contract for the sale of any goods, chattels or things in action, for the price of fifty dollars or more, will be void, unless (1) A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby, or, (2) Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action ; or, (3) Unless the buyer shall at the time pay some part of the purchase-money. 2 Wait's Law & Pr. (5th ed.) 110. 79. A wagon maker agrees to make a wagon, find the materials^ and deliver it at a future day. The purchasers agree to pay $100 for the wagon on delivery. Is the contract void within the statute of frauds ? Crive the reason for your answer. The contract is not void. It is not a contract for the sale of a chattel, but for work, labor and materials, and consequently is not within the statute. 2 Wait's Law & Pr. (5th ed.) 125- 128; 8 Wait's Act. & Def. 550. 80. A and B entered into an oral contract for the sale ofgoodt which tvas void under the statute of fraxtds. Subsequently th (JONTEACTS. 123 parties met, restated the essential terms of the original contract, and the purchaser made a partial payment of the purchase money by giving his check, good when delivered, accepted by the seller, and subsequently paid. Will such payment render the original contract valid ? It will either render the original contract valid by taking it out of the operation of the statute, or it will create a new and valid contract. 8 Wait's Act. & Def. 549. 81. In what cases will a plea of payment, by note, be a good defense in an action upon a book account ? 1. When the note was given under an express agreement that it should be taken as payment of the account. 2. When the note is negotiable, and the plaintiff fails to produce or cancel it upon the trial, or to prove its loss ; and 3. When the time of payment of the note has not arrived. Edwards on Bills & Notes, 192 (181) ; 2 Pars, on Cont. 624 ; 6 Wait's Act. & Def. 560 ; 8 id. 511 ; 2 Wait's Law & Pr. (5th ed.) 918. 82. .In the absence of an express agreement, will payment by a ■norwnegotiable note extinguish the prior indebtedness for which it is given f It will not. It merely operates to extend the time of pay- ment of the original indebtedness until the maturity of the note, when, if the note is unpaid, the creditor may recover on the original indebtedness, on delivering up the note, to be canceled ■upon the trial.. Edwards on Bills & Notes, 197 (186). 83. A contract contains a promise, in the alternative, that A shall pay to B a specific sum, or deliver certain chattels at a par- ■tieular time. To whom does the right of election belong, as to lohat shall be paid f Before the day for performance, the right of election rests solely with the promisor ; but after the day of performance has passed, without any election by the promisor, the right of elec- tion is gone, and the promisee has an absolute right to the money. 2 Wait's Law & Pr. (5th ed.) 897. 84. What is the effect of a legal tender of a sum due upon con- ,tract, when made before action f The effect of a tender of a sum of money due upon con- 124 GONTKACTS. tract, before a suit brought for its recovery, is to stop the run- ning of interest thereon and to protect the debtor from subse- quent costs. The tender will not, however, extinguish the debt. 2 Wait's Law & Pr. 899 ; 2 Pars, on Cont. 638 ; 7 Wait's- Act. & Def. 594. 85. What are the essentials of a valid tender of money ? 1. The money must be actually produced and proffered, un- less the creditor expressly or impliedly waives its production ; 2. The tender must be unconditional ; and 3. The tender must be in lawful money. 2 Pars, on Cont. 642. 86. A, being indebted to B in the sum of $100, offers to pay to B that amount if he will give' him a receipt in full of all demands; is the tender valid f It is not ; from the fact that it is made on condition. 2 Pars, on Cont. 644 ; 2 Wait's Law & Pr. (5th ed.) 887. 87' An indorser of a negotiable promissory note offers to pa/y the note on condition that it be surrendered to him ; will the fact that the tender is conditional defeat the object of the tender ? It will not. 2 Wait's Law & Pr. (5th ed.) 888. 88. In what actions may tender be made, after suit brought f Where the complaint demands judgment for a sum of money only, and the action is brought to recover a sum certain or which may be reduced to certainty by calculation, or to recover damages for a casual or involuntary personal injury, or a like injury to property. Code of Civil Pro. § 731. 89- What should be the amount of a tender made after suit ? The tender should be of such a sum of money as the defend- ant conceives to be sufficient to make amends for the injury, or to pay the plaintiff's demand, and the costs of the action to that time. Code of Civil Pro. § 731. 90. What disposition must be made of ynoney tendered after suit in case the tender is not accepted ? The money must be paid into court and written notice of such payment must be served upon the plaintiff's attorney before trial and within ten days after the tender. If this is not done the tender is unavailing. Code of Civil Pro. § 732. CONTBACTS. 125 91. What is the effect of a sufficient tender after suit? If it appears on the trial that the sum tendered was sufficient to pay the plaintiff's demand, or to make amends for the injury, and also to pay the costs of the action to the time of the tender, the plaintiff cannot recover costs or interest from the time of the tender but must pay the defendant's costs from that time. Code of Civil Pro. § 733. 92. Where a tender has onlrf the effect of extinguishing a lien and does not discharge the debt, is it necessary to pay the money tendered into court? It is not. The provisions as to tender in the Code refer only to that class of tenders which are considered as satisfying and discharging debts. Cass v. Higenbotam, 100 N. Y. 248. 93. Where a contract provides for the payment of a debt in specific articles, what will be the legal effect of a valid tender of thfie articles? A valid tender of the articles will transfer the title of the articles tendered to the creditor, and discharge the debt, wheth- er the creditor accepts the property or not. 2 Pars, on Cont. 658 ; 2 Wait's Law & Pr. (5th ed.) 897. 94. What disposition must be made of the property tendered, if the tender is not accepted by the creditor ? It must be held by the party making the tender as a bailee, at the risk and at the expense of the creditor. 2 Wait's Law & Pr. (5th ed.) 898. 95. What is meant by accord and satisfaction ? It is a new agreement between parties in satisfaction of a former one, and also the execution of the new agreement. 2 Pars, on Cont. 681 ; 3 Wait's Law & Pr. (5th ed.) 869. 96. A father entered into a composition-agreement with the cred- itors ef his insolvent son, by which he agreed to pay forty cents on a dollar of his son's debts, the creditors respectively agreeing to accept that amount in satisfaction of their debts. After payment of the stipulaited sum by the father, and acceptance cf the same by the creditors, can the eredvtors recover any further sum in an actiem against the son upon, the 0riginal indebtedness/? Ihey cannot. Tllie stem maty plead ike paymeM made: by Ms 126 , Contracts. father as an accord and satisfaction, and this, when proved, will be a jierfect defense to the action. 2 Wait's Law & Pr. (5& ed.) 870. 97. A creditor in consideration of part payment of a Bum then due, gives Ms receipt in full satisfaction of the entire demand ; will this receipt he a good defense hy way of accord and satisfaction in an action for the remainder ? It will not. 2 Wait's Law dc Pr. (5th ed.) 877 ; 2 Pars, on Cont. 686. 98. Upon what principle is the part payment invalid as defense in the ease last given, but valid in the one immediately preceding it ? Upon the principle that it is essential to an accord and sat- isfaction that the creditor shall receive from it a distinct benefit which otherwise he would not have had. It the iirst case, the payment by the father is such a benefit; in the last case, nothing was received by the creditor beyond what the law had already given him. See 2 Pars, on Cont. 686 ; 2 Wait's Law & Pr. (5th. e4.) 871, 872. 99. If a person having a debt or claim against another satisfies or releases it in consideration of an executory promise by the party owing the debt or duty, can he afterward enforce his original cause of action upon a mere failure by the other party to perform hit promise ? He cannot. 8 Wait's Act. & Def. 504. 100. What is the effect of the proper submission of a controversy^ to an arbitrator, and the rendering of a valid award- by him thereon ? ' The award is a bar to any action upon the matter so sub- mitted, even though the award has not been performed. 2 Wait's- Law & Pr. (5th ed.) 865 ; Wiberly v. Mathews, 91 N. Y. 648. 101. What are the requisites of a valid award? 1. That it conforms to the terms of the submission ; 2. That it is certain, in the sense of clearly showing the meaning of the arbitrators, the effect of the award, or the rights and duties of the parties under it ; 3. Th^t it be posssible ; 4. That it is reason- CONTEAOTS. 12T able ; and, 5. That it is final and conclusive. 2 Pars, on Cont. 688; 2 WTait's Law & Pr. (5th ed.) 862-859 1 6 Wait's Act. & Def . 534^46. 102. Will a release of one of several Joint debtors operate in all cases as a release of all of them P It will not. At common law a release of one of several joint ■debtors will operate as a release of all ; but, under the act of 1838, a creditor may release a partner or joint debtor without impairing his remedy against the others. Laws of 1838, ch. 257 ; 2 Wait's Law & Pr. (5th ed.) 826, 829. 103. A creditor, hy a written instrument under seal, expressing' only a nominal consideration, releases a debtor from a certain lia^ hility. Can the creditor afterward, in an action to enforce such liability, show by parol evidence that the release was, in fact, found- ed upon a consideration other than that expressed in the instrument, and -that such consideration has wholly failed ? He cannot. The rule of the common law that a release under seal, although reciting only a nominal consideration, ex^ tinguishes the debts to which it relates, has not been altered by the statute permitting an inquiry into the consideration of sealed instruments. 2 Wait's Law & Pr. (5th ed.) 831. 104. Explain the distinction made by law between the conclu- siveness of a release and the conclusiveness of a receipt f A release, by its own operation, extinguishes a pre-existing right, and, therefore, cannot be contradicted or explained by parol evidence. A receipt never has the effect of destroying a subsisting right, but is mere evidence of the fact of payment, and like other facts given in evidence may be refuted or explained. It is the payment of money which extinguishes a debt, and not the receipt which is only evidence of the payment, while a writ- ten release is not only evidence of the extinguishment, but is the extinguisher itself. 2 Wait's Law & Pr. (5th ed.) 830, 831. 105. A tenant went into possession of certain premises under' a lease under seal, which provided that, at the expiration of the term, he should yield up all er'ictions and improvements made during the term. The tenant and landlord subsequently entered into an agree- ment by letter that if certain buildings were, erected by the tenant. 128 Contracts. theij might he removed hy Km at the empiration of his term. The . huiidinffs wete erected under this: ecgreement. At the expiration of the term, and after the death of the landlord, the tenant removed the buildings so erected. Could he he held liable, in an aetion brought hy the executor of the landlord, for a breach of the covenant to yield up the improvements made during his tenancy I He could, under the rule of law whicK deolares tibat a con- tract under seal cannot be discharged except by an instrument «f equal forc£i and validity, or an instrument also under seal. Hence, a parol license could not operate as a discharge of the covenant, and the tenant would be liable for the breach. 2 Wait's Law & Pr. (5th ed.) 679-680, 904. 106. When is the alteration of a written contract by interlinear tion, addition, erasure, etc., a valid defense in an aetion on the contract ? When the alteration was madeafter the contract was signed, and in a material part, without the consent of the party against whom the contract is sought to be enforced. 2 Wait's Law & Pr. (5th ed.) 683. 107. What will be the effect of altering the time of payment of a promissory note without the consent of the maker ? An alteration which changes in any manner the time of pay- ment of a note destroys its identity, and discharges the maker from all obligations thereon. 2 Wait's Law & Pr. (5th ed.) 687; 8 Wait's Act. & Def. 509. 108. What will he the effect of adding the words " or order " to a promissory note, without the consent of the maker ? By the addition of the words " or order " a non negotiable note is changed to one which is negotiable, and the instrument thereby becomes void even in the hands of an innocent holder. 2 Wait's Law & Pr. (5th ed.) 689. 109. What is the effect of the alteraiion' of an instrument hy a stranger without the assent of the holder^ The alteration, has no effect tipon' tbe VEilMity ©f the iustru- ment j but it will be presumed that the altesaition was made by the hoHesir oi some one amdiear whwiiiBi he elaaMss, sm^ may render it' neeessar jr to rebtct tfaie preawmpfebii, 8^ WaaA'm A«r£ & Dei ^- Contracts. 129 110. What is the general rule as to the amount of damages recoverable in an action on a breach of an ordinary contract f As a general rule, the amount of damages recoverable in an a\3tion on a breach of contract is measured by the actual pecu- niary loss of the plaintiff arising directly out of the breach, with- out taking into account the loss arising incidentally from the hreach, or the motives which led to the non-fulfillment of the ■contract. 3 Wait's Law & Pr. (5th ed.) 776, 777. 111. What do you understand by the terms " remote " or " conr ■sequential " damages f The terms " remote " and " consequential " are applied to such damages as result indirectly from a specified act, to distin- guish them from such as result directly from that act. Thus, the direct damages arising from the non-payment of a note are limited to the amount of the note and the costs incident to a re- covery, while the consequential damages arising therefrom may extend to temporary derangement of business, loss of credit, and even the insolvency of the creditor. 3 Wait's Law & Pr. (5th edO 773, 783. 112. In what cases may prospective profits be recovered in an ■action on a breach of contract ? A party injured by a breach of contract is entitled to recov-' ver all his damages, including gains prevented as well as losses sustained, provided they are certain, and such as might naturally be expected to follow the breach. But uncertain and contingent profits, such as are not capable of being definitely ascertained by Teference to established market rates, are not recoverable. 3 Wait's Law & Pr. (5th ed.) 774 ; 2 Wait's Act. & Def. 443 ; 8 id. 210. 113. By what term are those damages hnotvn which the parties have agreed, by express stipulation, shall be paid on the breach of u contract ? Where the parties have agreed upon a fixed sum to be paid in case of breach of a contract, the damages so agreed upon are termed liquidated damages. 3 Wait's Law & Pr. (5th ed.) 799. 9 130 CONTEACTS. 114. Giive the general principles governing the courts in rela- tion to the enforcement of agreements to pay a fixed sum as liqui- dated damages ? Where the intention of the parties to fix a sum mentioned as liquidated damages in case of default in the performance of some act agreed to be done is clear, the court will enforce the contract ; (2) If the damages would be otherwise uncertain and conjectural, an agreement to pay a sum denominated liqui- dated damages will be enforeed ; and (3) if the agreement is- in the alternative to do a certain act or to pay a certain sum,, the court hold the party failing to have had his election and compel him to pay the money. 3 Wait's Law & Pr., (5th ed.} 799. 15. Is the use of the term '■'■liquidated damages" in a con- tract conclusive evidence of the intent of the parties to fix upon a sum to he paid absolutely upon a breach of the contract ? It is not. The court will seek to discover and give effect to the intent of the parties irrespective of the language used in some portions of the contract. 3 Wait's Law & Pr., (5th ed.) 799. 116. Crive the general principles governing the construction of agreements to pay a fixed sum as damages on default in the per- formance of a contract ? (1) The intent of the parties must be sought from the whole instrument ; (2) If the word " penalty " is used it will generally be held conclusive as against the other language employed in the instrument ; (3) If the sura stipulated is to be paid on the non-payment of a less sum which is certain in amount, and made payable by the same instrument, it will be treated as a penalty ;. and (4) If it is clear that the sum was fixed to evade the usury laws, or any other statutory enactment the court will treat the sum to be paid as a penalty. 3 Wait's Law & Pr., (5th ed.)' 799. 117. What is the measure of damages in an action for a breach of warranty of soundness in the sale of a horse ? The measure of damages is the difference between his value at the time of sale, considering him as sound, and his value with CONTEACTS. 131 the defects alleged and proved. 3 Wait's Law & Pr., (5th «d.) 790. 118- What is the measure of damages in an action for a breach of an implied warranty of title in the sale of a horse f (1) The price paid and the interest thereon; and (2) If the true owner has recovered the horse in an action of which the vendor had notice, then the costs recovered in such suit against the purchaser or his vendee. 3 Wait's Law & Pr. (5th ed.) 792. 119. In an action brought upon a chattel note which provides for the payment of $1,000 in wheat at fSl.OO per bushel, at a specified time and place, what is the measures of damages for non-perform- ance, it being conceded that wheat was worth f 1.50 per bushel at the time and place specified? The measure of damages is the sum specified in the note, viz., -fl.OOO, and not the value of the wheat at the time and place iixed for payment. 3 Wait's Law & Pr. (5th ed.) 783, 784. ' 120- In an action brought upon an express agreement to deliver goods on a specified day, what is the measure of damages for the non-delivery at the nonrspecified time ? The measure of damages is the difference between the con- tract price of the goods and the price for which they were ac- tually sold in market at the time of their arrival. 3 Wait's Law &Pr, (5thed.) 785. 121. What is the invariable measure of damages for a breach of contract to pay money ? Interest on the amount agreed to be paid from the time that amount became due and payable is the measure of damages in such case. 8 Wait's Act. & Def. 211. 132 Agency, or Pkincipal and Agent. CHAPTER VIII. AGENCY, OK PKINCIPAL AND AGENT. 1. Where one person employs another to transact his business and manage his affairs for him, what is the relation thus created called f Such a relation is in law an agency ; the person employed be- ing called an agent, and the person employing an agent being called the principal. 1 Pars, on Cont. 39. 2. Upon what is such a relation founded? An agency is founded upon either an express or an implied contract, in which one of the parties, the principal, confides to the other, the agent, the management of some business to be transacted in the name of the former, or on his account, and iu which the latter assumes to transact the business and give an account of it. 1 Wait's Law & Pr. (5th ed.) 388; 2 Kent's Com. 612. 3. In accordance with what general rule is the creation of an agency authorized? It is a geijeral rule in law, that whatever one has power to do lawfully in his own right, he may do by another appointed as his agent, such as selling lands or goods, making contracts and the like. It follows, as an inference from this rule, that the prin- cipal cannot do through an agent what he cannot do in person. 1 Wait's Law & Pr. (5th ed.) 383 ; 1 Wait's Act. & Def. 21T. 4. How may the authority of an agent he created ? By a written sealed instrument, an unsealed written instru- ment, or verbally, without writing ; and, for the ordinary pur- poses of business and commerce, the latter mode is sufficient. The agency may also be inferred from the relation of the parties, and the nature of the business in which the agent is employed, without proof of any express authority having been conferred by the principal. 1 Wait's Law & Pr. (5th ed.) 388 ; 2 Kent's ) Com. 614. i Agency, oe Pkincipal and Agent. 133 5. What is the extent of the authority of an agent appointed by ;parol ? Generally, an agent appointed by parol is authorized to do any act, or make any contract not required to be executed under seal. But an authority to execute a deed or instrument under seal must be given by a writing, under seal, of equal dignity and solemnity with the deed itself. 1 Wait's Law & Pr. (5th ed.) 388 ; 1 Pars, on Cont. 47 ; 1 Wait's Act. & Def. 218; 8 id, 41. 6. Is there any exception to the rule, that the authority to execute a deed must he hy deed ? There is one, namely, where the agent or attorney affixes the seal of the principal in his presence and by his direction. Sanford v. McNair, 9 Wend. 54, 56. 7. Grive the distinction between a general agent and a special agent ? A general agent is one having authority to transact all of his principal's business, or all of his business of a particular kind or at some particular place ; while a special agent is one author- ized to do only one or more special acts in pursuance of partic- ular instructions. 1 Wait's Law & Pr. (5th ed. ) 386; 1 Wait's Act. & Def. 216. 8. Does the limitation of the authority of an agent to a particular hind of business necessarily make him a special agent ? It does not. The agency may be general as to that business. 8 Wait's Act. & Def. 40. 9. To what extent are the acts of a general agent binding upon his principal ? The acts of a general agent will bind his principal so long as he acts within the usual and ordinary scope of the business he was authorized to transact ; and this is the rule even though he act contrary to private instructions, provided the person dealing with the agent was ignorant of the fact that he had exceeded his authority. 1 Wait's Law & Pr. (5th ed.) 386 ; 2 Kent's Com. 620. 10. Is the principal bound by the acts of a special agent if he ex- ceeds the bounds ef his authority ? No. The authority of a special agent must be strictly pur- 134 Agency, ok Pbiitcipal and Agent. sued, and if a person deals with such agent without ascetaining- the extent of his authority, he does so at his peril, and the prin- cipal will not be bound by any act which exceeds the special authority given. 1 "Wait's Law & Pr. (5th ed.) 386 ; 2 Kent's Com. 621. 1 1 . May persons act as agents who have no legal capacity to make valid contracts upon their own account ? They may ; and the acts of such agents will fully bind the principal. It is the duty of the principal to protect his own rights in selecting an agent to transact his business, and if he neglects to do so, he must suffer the loss which may result from his own indifference or negligence. Infants may act as agents, and so may married women act as agents for third persons, or for their husbands. 1 Wait's Law & Pr., (5th ed.) 385 ; 1 Wait's Act. & Def. 214. 12. Oan a married woman legally appoint an agent ? At common law the wife has no power to appoint an agent or attorney ; but under the law as it now stands in this State, she may appoint an agent and carry on business in her own name. 1 Wait's Act. & Def. 214 ; 1 Wait's Law. & Pr., 390. 13. An agent is authorized hy his principal to sign a note pay- able in six months, and the agent signs the note payable in sixty days ; is the principal bound thereby ? No ; for the authority of the agent was special, and the principal is not bound beyond the scope of such authority. 2 Kent's Com. 618 ; 1 Wait's Law & Pr. 386. 14. ^ is a horse dealer, and B, his servant, sells a horse for him, and warratits it sound contrary to the express instructions of A, is- A bound by this contract ? He is ; on the ground that the servant having a general au- thority to sell acted within the general scope of his authority, and the public cannot be supposed to be acquainted with the private conversations between the master and servant. 2 Kent's Com. 621 ; 1 Wait's Act. & Def. 222. 15. State the proper mode of executing an authority by an agent ? The proper mode is to do it in the name of the principal Agency, ok Pkincipal and Agent. 135 or person giving the authority, and not in the name of the agent. Thus, where A B is principal, and C D is agent, the agent should execute the paper by signing it " A B, by C D," his agent. 1 Wait's Law & Pr. (5th ed.) 445 ; 1 Wait's Act. & Def. 236. ■ 16. How must a sealed instrument he executed hy an agent or fittorney ? In order to bind the principal in cases in which the contract is required by law to be under seal, it is an inflexible rule, that the instrument must be executed in the name of the principal, and purport to be sealed with his seal. 1 Wait's Law & Pr., (5th ed.) 445 ; 1 Pars, on Cont. 54. 17. Has an agent power to employ a sub-agent, without the Jcnowledge or consent of his principal f < Ordinarily he has not. The agency is generally a personal trust which cannot be delegated to another ; but this rule is not so inflexible as to prevent an agent from employing such assistance as may be necessary in executing the duties of his trust. 1 Wait's Law & Pr. 409 ; 2 Kent's Com. 633. 18. When does an agent become personallg liable to third per- sons on his contract ? An agent may incur liability to third persons by exceeding the authority conferred upon him, or by entering into an un- dertaking in his own name ; or, he may become liable where there is no responsible principal, or if he neglects or refuses to disclose the name of his principal. 1 Wait's Law & Pr. 456 ; 8 Wait's Act. & Def. 60 ; 2 Kent's Com. 630. 19. If an agent purchase goods, without disclosing the name of Ms principal, is he discharged from the personal liability thus in- curred by the subsequent discovery of the name of his principal f No ; the only effect of the discovery is that principal and agent are both liable, and the seller may, at his election, proceed against either or both. 1 Wait's Law & Pr. (5th ed.) 457 ; 2 Kent's Com. 631 ; 8 Wait's Act. & Def. 55, 60. 30. What is the rule of law as to the liability of public agents on their contracts ? When a public agent acts in the line of his duty, and by 136 Agency, ok Principal and Agent. legal authority, his contracts made on account of the govern- ment are public, and not personal, and he will not be held per- sonally liable on them unless it appears that the credit was given to, or the labor performed for, the agent himself, and on his agreement and promise to pay ; or the fact of his being a public agent was unknown and not disclosed at the time of making the contract. 2 Kent's Com. 647, note ; 1 Wait's Act. & Def. 260, 262; 1 Wait's Law & Pr. (5th ed.) 410. 21. How. may the unauthorized acts of an agent he rendered valid, so as to be binding on the principal ? Where a person assumes to act as the agent of another^ but without naming his principal, the latter may adopt and ratify what has been done, and receive the benefit of the agreement, although such assumed agent had no previous authority. So, on. the otlier hand, if the alleged principal ratifies the transaction, he will be bound by the contract, and estopped from denying its validity. A subsequent ratification is equivalent to a prior au- thority. 2 Kent's Com. 614 ; 1 Wait's Law & Pr. (5th ed.) 400. 23. What is essential to a full ratification? The ratification of an unauthorized act of an agent, in order to bind the principal, mast be made with full knowledge of all the material facts, or, in other words, the ratification will not bind where it appears that material facts were suppressed. 1 Wait's Law & Pr. [5th ed.J 400 ; 1 Wait's Act. & Def. 233 ; 8 Id. 42. ■ 23. When is the ratification complete ? The ratification is complete when the principal acknowl- edges what has been done in his name, consents to be bound by it, and manifests such intent to the other party in an unequivo- cal manner. It is not necessary that an act should be done which would create a technical estoppel upon the party ratify- ing. Story on Agency, §§ 252, 256. 24. Where a party, who undertakes to act as agent, affixes a.seal to an instrument which does not need a seal, what effect will a parol ratification have upon the instrument ? It will have the effect to make the instrument obligatory upon the principal as a simple contract. 1 Pars, on Cont. 62; 1 Wait's Act. & Def. 234. Agency, or Pbincipal and Agent. 137 25. To what extent does an agent, who exceeds his authority render himself liable ? An agent who exceeds his authority, renders himself liable to the whole extent of the contract, even though a part of it was within his authority. What he does within his authority, however, is valid, if that part be distinctly severable from the remainder. I'Pars. on Cont. 69. 26. What is the distinction between factors and brokers ? They are both and equally agents, but the former is dis- tinguished from the latter by being intrusted with the posses- sion and disposal of property, and with the apparent ownership of it, while the latter are merely employed to make a bargain in relation to it. The business of factors is usually done by a class of men called commission merchants. 1 Pars, on Cont. 91 : 2 Kent's Com. 622 : 1 Wait's Law & Pr. [5th ed.] 412. 27. What is meant by the term a del credere commission, in agency ? The compensation to factors and brokers is usually a com- mission: and when the agent guarantees the payment of the price for which he has sold the goods of his principal, then the commission is larger, as it includes a compensation for this risk. In such case he is said to act under a del credere commission. 1 Pars, on Cont. 91. 28. What degree of care are factors and brokers bound to exer- cise in the management of the business intrusted to them ? A factor or broker is bound to the exercise of ordinary care, and is liable for any negligence, error or default incompatible with the care and skill properly belonging to the business that he un- dertakes. 1 Pars, on Cont. 93. 29. To what compensation are agents entitled besides commis- sions f They are further entitled to be re-imbursed for all advances they may make in the regular course of a legal employment ; such as incidental charges for duties, warehouse room, and all payments for the necessary care and preservation of the property commit- ted to their care. 1 Wait's Law & Pr. (5th ed.) 431. 138 Agency, or Principal and Agent. 30. What is meant hy the agent^B right of lien, and how may it urise f The lien of the agent is the right to retain possession of prop- erty belonging to another until some demand of the agent is satisfied, and it may arise in either of three ways : 1. By an ex- press agreement ; 2. By a general course of dealing in the trade in which the lien is set up ; 3. From the particular circumstances of the dealing between the parties. 1 Wait's Law & Pr. (6th ed.) 432 ; 2 Kent's Com. 634. 31. When is a factor or broker entitled to his commissions for his, services ? As a general rule, neither has a right to his commissions un- til the whole service is performed for which these commissions are given as compensation. 1 Pars, on Cont. 99. 32. What is necessary to the validity of a factor s or hroker^s claim for his commissions ? Neither factor nor broker can have any valid claim for his commissions or other compensation, unless he has discharged all the duties of the employment which he has undertaken with proper care and skill, and entire fidelity. And, for his injurious default, he not only loses his claim, but the principal has a claim, for damages. 1 Wait's Law & Pr. (5th ed.) 431 ; 1 Pars, on Cont. 99, 100. 33. State the general rule as to the liability of the principal for the torts of his agent ? As a general rule a principle is liable for such wrongful acts of his agent as are committed in the course of his employment, and for the benefit of his principal, although no express com- mand or privity is proven. 8 Wait's Act. & Def. 56 ; Moak's Underbill on Torts, 555. 34. Is the principal liable for the willful acts of his agent f If the act was done within the general scope of the agency, as a means of accomplishing the object of the agency, and to fur- ther the interests of the principal, the principal will be liable. But the principle will not be liable for a willful act-of an agent which is wholly foreign to the business in which the agent was Agency, or Principal and Agent. 139 I •engaged, and ■which the principle has neither authorized nor rati- fied. 1 Wait's Act. & Def. 264, 266 ; 8 id. 56-57 ; 1 Wait's Law & Pr. (5th ed.) 439, 442; 2 Kent's Com. 633, note. 35. What is the rule of liability of the agent to his principal? The law requires that the agent shall possess competent skill and knowledge of such business as he undertakes to per- form, that he act with diligence in matters requiring prompt action, and that he act in good faith toward his principal. For the want of such good faith, skill or diligence the agent will be liable to his principal for any damages which may result to him. 1 Pars, on Cont. 85 ; 1 Wait's Law & Pr. (5th ed.) 450. 36. May the principal adopt in part the unauthorized act of his ■agent and reject the rest f No. The adoption of the agency in part is an adoption of the whole, on the ground that a principal is hot permitted to -accept and confirm so much of a contract, made by one purport- ing to be his agent, as he shall think beneficial to himself, reject- ing the remainder. 1 Pars, on Cont. 51 ; 8 Wait's Act. & Def. 42. 37. If the agent does a different business from that he was au- thorized to do, although more advantageous to the principal, is the tatter hound thereby ? He is not, because the agent deviated from the subject matter of his instructions. 2 Kent's Com. 620. 38. State the rule as to the extent of a factor's lien. A factor has not only a particular lien upon the goods of his principal in his possession, for the charges arising on account of them, but he has a general lien for the balance of his general account arising in the course of dealings between him and his principal ; and this lien extends to all the goods of the principal in his hands in the character of factor. It does not extend, how- •€ver, to a collateral debt, not growing out of the relationship of principal and factor, such as a debt due for rent, etc. 1 Wait's Law & Pr. (5th ed.) 432 ; 2 Kent's Com. 640. 39. An agent, in selling goods for his principal, makes a material -misrepresentation which he believes to be true, hut which his prin- icipal knows to be false, is the sale a valid one ? It is not ; for the misrepresentation of the agent is the false- 140 Agency, or Principal and Agent. hood of the principal, and this is sufficient to avoid the sale. 1 Pars, on Cont. 61. 40. Should an action upon a contract, made ly an agent in his own name for an undisclosed principal, be brought by the principal or by the agent ? If the contract is not under seal either the principal or the agent may sue upon it whether the agent described himself as agent in the contract or not. But if the contract is under seal, and executed by the agent in his own name, he only can main- tain an action upon it. 8 Wait's Act. & Def. 59. 41. In what various ways may the authority of an agent be terminated ? It may terminate with the death of the agent ; by the lim- itation of the power to a particular period of time ; by the ex- ecution of the business which the agent was constituted to per- form ; by a change in tlte state or condition of the principal ; by his express revocation of the power, and by his death. An ordinary agency is terminated by the death of the principal, as to all persons who have notice of it. 1 Wait's Law & Pr. (5th ed.) 463 ; 2 Kent's Com. 643 ; 8 Wait's Act. & Def. 45-47. 42. May the principal revoke the authority of an agent at any time ? He may at any time prior to the completion of any contract or the performance of any particular acts by the agent, unless the authority is coupled with an interest, or given for a valuable consideration. 1 Pars on Cont. 69, 70 ; 1 Wait's Law & Pr. (5th ed.) 464 ; 2 Wait's Act. & Def. 289. 43. Is it necessary that the agent should be notified of the revo- cation of his authority ? Yes ; for until such notice is given the acts of the agent will be binding upon the principal. 1 Wait's Law & Pr. (5th ed.) 464. 44. Will the lunacy of a principal operate to revoke the author- ity of an agent f It will ; but the lunacy must be clearly established before it can have any such effect. 2 Kent's Com. 645 ; 1 Wait's Act. & Def. 290 ; 8 id. 46. Agency, Oe Pkincipal and Agent. 141 45. Does the death of the principal operate,, in every case, as a -revocation of the agency ? No ; for if the agency is coupled with an interest vested in the agent, it survives, and the agent may do all that is necessary to realize his interest and make it beneficial to himself. 1 Pars, -on Cont. 72 ; 8 Wait's Act. & Def. 46. 46. What must be the nature of the interest which will authorize the execution of a power after the death of the principal? It must be an interest in the thing itself which is the sub- ject of the power, and not in the proceeds or avails of such thing. 1 Wait's Law & Pr. (5th ed.) 464 ; 8 Wait's Act. & Def. 47. 142 Pbistcipai and Subbtt. CHAPTER IX. PRINCIPAL AND SURETY. 1. What constitutes the relation of principal and surety? This relation exists when one person undertakes to be an swerable for the payment of some debt, or the performance of some act or duty, in case of the failure of another person, who is. himself primarily responsible for the payment of such debt or the performance of the act or duty. 1 Wait's Law & Pr., (5th ed.) 665 ; 2 Wait's Act. & Def . 185 ; Chitty on Cont. 499. 2. What is the generally recognized definition of a guaranty? A guaranty is a promise to answer for the payment of some debt, or the performance of some duty in case of the failure of another person who in the first instance is liable for such pay- ment or performance. Fell on Guar. & Sur. 1 ; 3 Kent's Com. 121 ; Baylies on Sur. & Guar. 2. 3. WTio are legally capable of becoming parties to contracts, as sureties. Every person, who is legally capable of making valid con- tracts of any kind, may become liable as a surety. 1 Wait's Law & Pr., (5th ed.) 665. 4. Is it necessary that a contract of suretyship should befoundei upon a consider atioji? It is ; and, without a valid legal consideration, such contract cannot be enforced. And in nearly all the States in which the statute of frauds is in force, the agreement must be in writing, subscribfed by the surety, and the contract must express the consideration. In New York the consideration need not be ex- pressed. 3 Kent's Com. 121 ; Brandt on Sur. 90 ; Uvansville Nat. Bank v. Kaufman, 98 N. Y. 278. Pbincipal and Suebtt. 143 5. In what cases must there he a new and distinct consideration to sustain a guaranty ? If the original debt or obligation is already incurred or under- taken previous to the collateral undertaking, then there must be a new and distinct consideration to sustain the guaranty. But if the original debt or obligation be founded upon a good consider- ation, and at the time when it is incurred or undertaken, or before that time, the guaranty is given and received, and enters into the inducement for giving credit or supplying goods, then the consideration for which the original debt is incurred is re- garded as a consideration also for the guaranty. 2 Pars, on Cont. 7 ; 3 Kent's Com. 122 ; 5 Wait's Act. & Def. 188 ; Baylies on Sur. & Guar. 53, 56. 6. State some of the ways in which a surety may he discharged from liability ? 1. By a valid agreement on the part of the creditor, based upon a valuable consideration, extending the time of the pay- ment of the debt of the principal for a definite time without the assent of the surety ; 2. By the failure of the creditor to proceed to collect his debt of the principal when solvent at the request of the surety, and the subsequent insolvency of the principal ; 3. By the voluntary surrender by the creditor to the principal without the assent of the surety, of a lien or property given by the prin- cipal to the creditor as security for the debt ; 4. By alteration of the principal's contract without the consent of the surety ; 6. By a tender of the amount of the debt by the principal or surety ; 6. By the payment of the debt ; 7. By the discharge of the princi- pal. 5 Wait's Act. & Def. 226, 247 ; 8 id. 446, a48 ; Baylies on Sur. & Guar. 219, 292; 1 Wait's Law & Pr. (5th ed.) 671. 677. 7. What effect will fraud have upon a contract of this kind? If any fraud exists in the consideration of the contract, or in the circumstances which induced it, the contract is wholly void, and the surety is thereby discharged from all liability. 2 Pars, on Cont. 7 ; Baylies on Sur. & Guar. 214. 8. Within what limits is the responsibility of a surety confined ? The responsibility of a surety is strictly confined within the clear and absolute terms and meaning of his undertaking, and 144 Priitcipal and Surety. presumptions and equities are never allowed to enlarge, or in any degree to change the legal obligations he has assumed. 1 Wait's Law & Pr. 667 ; 3 Kent's Com. 124. 9. Suppose a person proposes to a creditor to become surety for another, hut makes it a condition that he is to he notified hy the cred- itor if accepted, will the surety he hound notwithstanding^ no notice. of acceptaiice has heen given hy the creditor ? He will not, because in this case there is no contract until the notice is given. 1 Wait's Law & Pr. 667-668. 10. If a person writes a letter to another, and promises to in- demnify him if he will sell goods to a third person, is such a prom- ise binding without any notice of acceptance ? It is, and if the goods are furnished the surety is liable. When the offer made is in the nature of a request to sell goods or of a promise to pay for them if sold by the creditor, then no notice is necessary. 1 Wait's Law & Pr. 668. 11. Suppose a creditor delays the prosecution of his demand against the principal debtor, will this delay have the effect to dis- charge the surety f As a general rule, mere delay on the part of the creditor will not discharge the surety ; but if a creditor delays, neglects or refuses to collect his demand of a solvent principal, after a request by the surety that it shall be done, and the principal subsequently becomes insolvent, this will discharge the surety. 2 Pars, on Cont. 23 ; 1 Wait's Law & Pr. 672. 12. If a creditor, upon a good consideration, enters into an agreement with the principal debtor, without the consent of the surety, extending the time of payment of the principal's debt for a definite time, hut reserving the creditor'' s remedies against the surety, will this discharge the surety f It will not. 1 Wait's Law & Pr. (5th ed.) 676. 13. Will a mere voluntary promise, or an agreement without any consideration to extend the time of payment, be sufficient to dis- charge the surety ? It will not, because such agreement is not binding, and does . Pmncipal and Surety. 145 laot prevent immediate proceedings upon the debt due from the principal. 1 Wait's Law &Pr. (5th ed.) 676. 14. Suppose a creditor agrees with the principal debtor, without the consent of a mirety, to extend the time of payment of the debt Jor a usurious consideration paid at the time, will this agreement discharge the surety ? It will, for the usurer is not allowed to show that an obli- jgation which he has taken in satisfaction of a prior demand, is Bsrarious and therefore void in order to avoid the efEeot of such obligation as a satisfaction of the prior demand. 1 Wait's Lawi & Pr. (5th ed.) 674. 15. When may the surety recover of the principal ? A surety cannot recover of the principal until he has paid the demand in monej'', or has in some other manner satisfied the indebtedness. 1 Wait's Law & Pr. (5th ed.) 677 ; 5 Wait's Act. & Def. 204 ; 8 id. 445. 16.. Suppose that several sureties sign a note of the principal at Ms request, at different times, without communication with each other, and the principal fails, in what manner are the sureties liable f In such case they are bound to contribute equally to the payment of the note ; and where the first of such sureties pays the whole note, he may recover from tbe last his proportion of the amount so paid. 1 Wait's Law & Pr. (5th ed.) 679, 680. 17. Are there any cases in which a surety cannot enforce contri- Jmtionfrom his co-sureties ? There are ; as where one person v-erbally agrees to indemnify another from loss in consequence of his signing a written obliga- tion, the party so verbally indemnifying cannot call on the co- surety for contribution. So when one surety is discharged, pur- suant to a bankrupt law, from his obligation to answer for the demand against the principal, he is not liable to his, co-surety for ■contribution. 1 Wait's Law & Pr. (5th ed.) 680. 18. A party signs a note as the surety of another, and svhie- •guently a third person affixes his name aleo as makers adding to Ms 10 146 Pbincipai. and Surety. signature the words ^^ surety for the above parties." Can the first surety, in ease he pays the note, compel contribution against 'the- second surety ? He cannot, unless it is made satisfactorily to appear that the second surety intended to place himself in the relation, of co-surety with the first surety. 1 Wait's Law & Pr. (5th ed.)' 680. 19. When may a surety in a bond, conditioned for the honest and' faithful performance by his principal of a contract for employment,, revoke his obligation and terminate his future liability by notice tO' the employer that he will be no longer bound ? 1. Where the guaranteed contract has no definite time to- run. 2. Where it has a definite time to run, but the principal has so violated it and is so in default that the employer may safely and lawfully terminate it on account of the breach. Emery^ V. Baltz, 94 N^t. 408. 20. Will a mere surety for a debt be bound by a judgment rettr- dered in a suit between his principal and the creditor ? He will not, even though the suit was conducted exclusively by the surety as the agent of the principal. 1 Wait's Law & Pr. (5th ed.) 683, 684. 21. Are there any exceptions to the general rule that, where the principal is not liable, neither is the surety liable ? Yes, a surety for an infant will be liable on his contract^ although the infant has a legal right to avail himself of infancy as a defense. 1 Wait's Act. & Def. 185 ; 3 Kent's Com. 124, note e. 22. What is the nature of the contract created by the indorsement on the back of a note of the words " I hereby guarantee the collec- tion of the within note " ? It is an undertaking on the part of the guarantor to pajr the sum secured by the note provided the maker of the note is pros- ecuted to judgment and execution with due diligence, and the money due on the note cannot be collected of him. 1 Wait's- . Law,&- Pp. (6th ed.) 687. Pkincipal and Surety. 147 23. If an absolute guaranty of payment i» indorsed upon a note, is it necessary,' hefore bringing suit upon the guaranty, to exhaust the legal remedies against the maker of the note ? It is not. 1 Wait's Law & Pr. (5tli ed.) 688. 24. What is the gen&ral rule as to the construction of guaranties f The court will give the instrument that construction which will accord with the apparent intention of the parties in con- formity with the rule governing the construction of contracts generally. Baylies on Sur. & Guar. 111. 25- How is the intention of the parties determined where the language of the guaranty is ambiguous and does not furnish con- clusive evidence of its meaning ? The court will look at all the circumstances surrounding the case and arrive at the intention of the parties from these sources of information. Brandt on Sur. 106 ; Fell on Guar. 43. 26- What is the nature of a general letter of credit ? A general letter of credit is addressed to and invites people generally to advance money, give credit, or sell property in reliance upon it ; and when this has been done, the contract is complete, and the person advancing the money, giving the credit, or selling the property, becomes a party to it and may enforce it for his own benefit. Baylies on Sur. & Guar. 10, 11, 27. Is a promise of guaranty revohable? A promise of guaranty may be revoked at the pleasure of the guarantor, by sufficient notice, unless it be made to cover some specific transaction which is not yet exhausted, or unless it be founded upon a continuing consideration, the benefit of which the guarantor cannot or does not renounce. 2 Pars, on Cont. 30. 28. What is the effect in equity of a conveyance by a mortgagor of the mortgaged premises subject to the mortgage f As between the mortgagor and his grantee the land is made the primary fund for the payment of the mortgage debt to the exoneration of the mortgagor from personal liability on his bond. The land is treated as the principal debtor, and the mortgagor as surety for the mortgage- debt. Baylies on Sur. & Guar. 494. 148 PABTNEKSHIfa CHAPTER X. PARTNERSHIPS. 1. What is a partnership ? It is the relation growing out of a voluntary contract be- tween two or more competent persons to place their money^ effects, labor and skill, or some or all of them, in lawful com- merce or business, and to divide the profit and bear the loss in certain proportions. 3 Kent's Com. 23 ; 1 Wait's Law & Pr. (5th ed.) 503 ; Story on Part. § 2 ; CoUyer on Part. § 3. 2. What are the general divisions of partnerships? Partnerships are either general or limited. They may be general in the sense of extending to the entire business carried on by the partners, or they may be general in respect to the common or general liability of all the members thereof for the partnership debts. They may be limited in respect to the ex- tent or number of transactions to which they extend, or they may be limited in respect to the liability of some one or more of the partners for the partnership debts. 1 Wait's Law & Pr. (5th ed.) 516, 522. 3. Who are " ostensible partners ? Ostensible partners are those whose names appear to the world as those of partners. 1 Wait's Law & Pr. (5th ed.) 503. 4. Who are nominal partners ? A nominal partner is an ostensible partner having no inter- est in the firm. 1 Pars, on Cont. 171 ; 1 Wait's Law & Pr. (5th. ed.) 503. 5. Who are special partners ? A special partner is one whose liability for the partnerehip debts is measured by the amount of cash contributed by him to the common stock, and who though known to the world as hav- Paetsteeships. 149 ing a limited interest in the partnership, takes no part in the transaction of its business. Special partners are unknown to the common law and have no existence, as such, independent of some statute. 1 "Wait's Law & Pr. (5th ed.) 522. 6. Who are " dormant " or " secret " partners ? A dormant partner is one whose name and transactions as a partner are professedly concealed from the world ; and when actually unknown^ is sometimes called a secret partner. 1 Wait's Law & Pr. 503; 1 Pars, on Cont.167; 1 Wait's Act. & Def.114. 7. If A and B, hy joint pur chase,hecome joint owners of certain property, will such purchase and ownership create a partnership in respect to the property ? It will not. It may create a tenancy in common, but not a partnership. 1 Wait's Law & Pr. (5th ed.) 504. 8. What would he necessary to create a partnership among such tenants in common ? It would be necessary for the parties to agree to join in making some disposition of the property which would be likely to result in loss or gain, and to further agree to share such profit or loss between themselves. A partnership would be created by and at the time of such agreement. 1 Wait's Law & Pr. (.Sth ed.) 504. 9. If two railroad corporations, engaged in operating two dis- tinct hut continuous lines of road, enter into a contract in which it is agreed that each shall operate its own line at its own expense ; that each shall he entitled to receive money for the transportation of freight or passengers over the entire road, or any part of the same ; and that the money so received shall he divided hetween them at stated intervals in proportion to the distance which each has respectively transported freight or passengers, the party found to have received more than his share paying over the halance at each settlement, will such contract constitute a partnership hetween the two corporations ? It will not. To constitute parties partners, as between 4ihemselves, there must be an interest in the profits as profits. Each party must, by the agreement, participate in some way in the losses as well as in the profits, and a mere agreement to 150 Pabtistebships. divide the gross earnings, as in the case stated, will not consti- tute the parties to it partners. 1 "Wait's Law & Pr. (5th ed.) 507 ; 5 Wait's Act. & Def. 109, 110. 10- What is the usual test of a partnership f Participation in profits and losses. 8 Wait's Act. & Def. 431. 11. Will the fact that an agent, employed to sell goods for a mercantile house, receives as compensation for his services one- fourth of the profits arising out of the purchase and sale of such goods, render him liable to third parties as a partner in the business ? It will not. 3 Kent's Com. 33 ; 1 Pars, on Cont. 160 ; 5 Wait's Act. & Def. Ill ; 8 id. 433. 12. If the owner of a farm lets it '■^ on shares'''' to A, and is to receive a given proportion of the crops raised as a compensation for the land, while A is to receive the balance for his labor, will the existence of this relation between the parties create a partner- ship f It will not. The relation of the parties is not that of part- ners, but of tenants in common. 1 Wait's Law & Pr. (5th ed.) 613, 514 ; 8 Wait's Act. & Def. 432. 13. In the absence of any agreem,ent, what will be the presump- tion of law in respect to the apportionment of the profits and losses of the partnership business f In the absence of any agreement, the law will presume that the profits are to be equally divided and the losses equally borne. 1 Wait's Law & Pr. 516 ; CoUyer on Part., § 167, note ; 8 Wait's Act. & Def. 486. 14. Upon what principle are secret and dormant partners held responsible to the creditors of the firm ? Upon the theory that, having participated in the profits of the partnership, they had by so much diminished the assets of the firm and reduced the fund to which the, creditors were en- titled to look for the paj^ment of their claims. 1 Wait's Law & Pr. (5th ed.) 509. 15. If A, after havina been for many years known as a member Partneeships. 151 of the firm of A,B and 0, retires from the firm without giving public notice of his retirement, can he be held liable for debts of the firm subsequently contracted ? He will be liable to persons knowing of his former con- nection with the firm and ignorant of his retirement. The fact that his name had never been used in the firm will not alter his liability ; but a retiring partner will not be liable for such debts of the remaining partners as are contracted under a new firm name assumed subsequent to his retirement. 1 Wait's Law & Pr. (5th ed.) 548 ; 1 Pars, on Cont. 170. 16. What is the nature and extent of the interest of each part- ner in the partnership property/ ? Partners are joint tenants in the partnership property ; but without the right of survivorship. Until a balance of account js struck no partner has an exclusive right to any part of the joint-stock. His interest is limited to his share in the surplus, after the partnership accounts are settled and all just claims satisfied. 1 Wait's Law & Pr. (5th ed.) 521. 1'?. Oan a person become a special partner in the banking or insurance business, and limit his liability to the amount of cash ■capital paid in, by following strictly the requirements of the statutes creating limited partnerships? He cannot. A banking or insurance business cannot be carried on by a limited partnership having special partners. 1 Wait's Law & Pr. (5th ed.) 522. " 18. What is the measure of the liability of the members of a -Joint-stock company for the debts of the concern? They are liable for the entire debts of the concern in the ^ame manner and to the same extent as in an ordinary partner- ship. 1 Wait s Law & Pr. (5th ed.) 526. 19. What is the general rule as to the power of one partner t» Mnd the firm by a contract relating to the business of the firm ? Each partner is presumed to be the agent of all in making a (Tontract which is within the scope of the partnership business, and his contract is the contract of the firm and binding on the Sivra, although it may violate some private understanding of the 152 Pabtnebships. ' partners as to the powers of each. 3 Kent's Com. 40, 41 ; 1 Pars^ on Cont. 174 ; 5 Wait's Ac^. & Def. 106, 126 ; 8 id. 433 ; 1 Wait's Law & Pr. (5th ed.) 529. 20. Sow far will a confesgion of Judgment hy one partner he binding on the members of the partner ship ? It will not be binding on any partner except the partner making it. 1 Wait's Law & Pr. (5th Ed.) 536. 21. Can one partner make a valid sale and transfer of all the copartnership effects, in payment of a debt to the creditor of the- firm, without the knowledge or consent of his copartner ? He can, if the sale and transfer be not tainted with fraud. 3 Kent's Com. 46 ; 1 Pars, on Cont. 178 ; 1 Wait's Law & Pr. 538; 8 Wait's Act. & Def. 435. 22. What is the extent of the liability of the members of a part- nership for the partnership debt ? If the debt is contracted or the liability incurred in the or- dinary course of business all the members are equally liable for its discharge ; and each partner is liable for the whole debt in, case of the inability of the others to pay their just proportion. 1 Wait's Law & Pr. (5th ed.) 540. 23. Whom would you join as defendants in an action on a breach of a contract of warranty in the sale of partnership property where the warranty was given by one partner only ? The action may be maintained against all the partners jointly, or it may be maintained against the partner alone who made the contract of warranty. 1 Wait's Law & Pr. (5th ed.). 541, 542. 24. How may a partnership be dissolved? The manner of dissolution may depend on the terms of the contract which created the partnership. It may be dissolved, 1. By the expiration of the time fixed for the continuance of the partnership ; or 2. By the completion of the business for which the partnership was created ; or 3. Bj'^ the death of one or more of the partners; or 4. By the bankruptcy of one or all of them; or 5. By the sale or assignment of all the interest of a partner in the partnership property ; or 6. Where there has been no Paktnekships. 153 time fixed for the dissolution of a general trading partnership^ it may be dissolved at the option of any partner by due notice to the other partners. Collyer on Part., §§ 109, 119 ; 1 Pars, on Cont. 194-199 ; 8 Wait's Act. & Def. 437 25. What is the effect of a dissolution of a bartnership on the rights and liabilities of the partners ? Upon the dissolution of the partnership, all the partners become tenants in common in the partnership property and eifects ; the power of any partner to bind the firm by acts or agreements ceases; and the use of the partnership property is limited to transactions necessary to the winding up of the affairs of the concern. 1 Wait's Law & Pr. 545 ; Collyer on Part.,. § 545 ; 1 Pars, on Cont. 194. 26. After the dissolution of a partnership one of the former members of the firm executed and delivered to a creditor of the firm a promissory note in the firm fiame, for the purpose of reviving a debt barred by the statute of limitations. Can the creditor recover as against the partnership in an action on the note or on the original obligation ? He cannot. No partner has the power, after the dissolution of the partnership, to revive a partnership debt barred by the statute of limitations, or to bind the other partners by a note even wlien given for the purpose of providing for a debt due from the former firm. 1 Wait's Law & Pr. 546 ; 3 Kent's Com. 50.. 27. One of the members of a solvent firm made a bona fide sale of all his interest in the partnership property to his copartner, who^ assumed all the debts of the firm. The purchasing partner subse- quently became insolvent. Are the creditors of the firm entitled t» any preference over the individual creditors of the purchasing^ partner in the application of the former partnership property to the payment of debts ? They are not. 8 Wait's Act. & Def. 443. 28. Sow is real property purchased with pa'^tnership funds for partnership purposes regarded in equity f It is regarded as personalty so far as it is necessary for the payment of partnership debts and the adjustment of the equities 154 Partnbbships. between the copartners. 8 Wait's Act. & Def. 436.; 5 id, 119, 120. 29. Would the rule he the same if the legal title to the real prop- erty/ was in one of the partners only ? It would; and its real character as partnership property- could be shown by parol. 5 Wait's Act. & Def. 120 ; 8 id. 436. 80. If a partner holding the legal title to lands purchased with partnership funds for partnership use, dies, leaving a widow, is she entitled to dower in such lands ? She is not, if the property is needed for the payment of partnership debts. But she is entitled to dower in any surplus remaining after such payment. 8 Wait's Act. & Def. 436. 31. If one partner in the transaction of the partnership business is -guilty of a fraud hy which a third person sustains damage, are the other members of the firm responsible for the wrongful act ? They are. 1 Wait's Law & Pr. (5th ed.) 540 ; Moak's Underbill on Torts, 558, 559. 33. A and B are partners in trade; A improperly uses the ■partnership name by making a promissory note in the name of the firm, which note B is compelled to pay. Mas B any, and what, remedy against A ? As a general rule partners cannot sue one another at law ; but the case given is an exception, and B may recover the money from A as money paid to his use. 1 Pars, on Cont. 164, note. 33. Can an action at law be maintained by one firm against an- other firm having a partner common to bothf Formerly such an action could not be maintained, as a person was not allowed to sue himself, or to be both plaintiff and defendant in the same action. The action was, however, main- tained in equity, and is now maintainable since the abolition of the distinction between legal and equitable actions by the Code. 1 Wait's Pr. 136 ; 1 Wait's Law & Pr. (5th ed.) 554. 34. A and B being partners, A agrees to pay to Ba certain share out'.of his profits for extra services rendered for the firm. Can B Pabtnerships, 155 maintain an action against A to recover the amount due him from Ji under this agreement P As a general rule a partner is entitled to no compensation for his services beyond his proper share of the profits of the con- cern, although he may perform the greater part of the work of the fixm. But an express promise by one partner to pay out of his profits a certain share for extra services rendered by another is sufificient to support an action to recover the amount so due. 1 Wait's Law & Pr. (5th ed.)527. 35. Who are necessary defendants in an action against a limited partnership ? The general partners only. 1 Wait's Pr. (5th ed.) 524. 156 Bailment. CHAPTER XI. BAILMENT. 1. What is the meaning of the term bailment ? The acts of borrowing, lendijig, hiring and of keeping chat- tels, or carrying or working upon them for another, are included in the term ; and whatever is delivered by the owner to another person, in any of the ways or for any of the purposes mentioned above, is bailed to him, and the law which determines the righta and duties of the parties, in relation to the property and to each other, is the law of bailments. 1 Wait's Law & Pr. (5th ed.) 555 j 2 Pars, on Cont. 56 ; 1 Wait's Act. & Def. 494 2. Explain the terms, bailor and bailee. A bailor is one who delivers chattels to another, for some purpose, and upon an express or implied contract'. A bailee is a party to whom chattels are delivered, for some purpose, and also upon an express or implied contract. 1 Wait's Law & Pr. 555 ; 1 Wait's Act. & Def. 494. 3. Grive the different kinds or sorts of bailments, as classified by- writers on the subject ? First. Depositum, which is a mere deposit or delivery, with- out compensation or reward. Second. Mandatum, or gratuitous commission, in which the mandatory, or bailee, agrees to do something with or about the thing bailed. Third. Commodatum, or loan, as where a chattel is lent to a bailee, for his use, without compensation, and is to be itself returned. Fourth. Pignus, or pledge, as where a thing is bailed to a creditor as a security for a debt. Fifth. Locatio, or hiring for a reward or compensation. 2 Pars, on Cont. 89 ; 2 Kent's Com. 558 ; 1 Wait's Law & Pr. 556 r 1 Wait's Act. & Def. 495. Bailment. 157 4. What is the ffeneral rule of law as to the re»pons^ility of a Tmileefor property delivered to him ? A bailee is, in all cases, responsible for the property delivered to him, but the degree and measure of this responsibility are to be determined by the nature of the contract and the law applica- ble to the agreement made ; or in the absence of an express agreement, then to such as is implied by law, from the circum- stances of the case. 1 Wait's Law & Pr. (5th ed.) 555. 6. Into how many and what classes are bailees distributed, as regards the degree of care which the law requires them to ex- ercise ? They are usually distributed into three general classes. The first is when the bailment is for the benefit of the bailor alone, and in this class but slight care is required of the bailee, and he is not responsible except for gross negligence. The second is where the bailment is for the benefit of the bailee alone, in which the greatest care is required of him, and he is held responsible for slight negligence. The third is where the bailment is for the benefit of both bailor and bailee, in which class ordinary care is required of the bailee, and he is responsible for ordinary neg- ligence. 2 Pars, on Cont. 88 ; 1 Wait's Law & Pr. (5th ed.) 55g. 6. May real property he made the subject of bailment ? No. Personal chattels, or movable things, which are capable x)f being delivered, can only be the subject of deposit or bailment of any kind. 1 Wait's Law & Pr. 557. 7. What is the nature of a deposit, or simple bailment ? A deposit, or simple bailment, is a mere delivery or bailment of goods or chattels in trust, to be kept for the bailor hj the bailee, and re-delivered on demand; and a distinguishing feature of the contract is that the keeping is gratuitous. 2 Kent's Com. 560 ; 1 Wait's Law & Pr. 556 ; 2 Pars, on Cont. 90 ; Story on Bailm. I 41 ; Jones on Bailm. 36, 117 ,- 2 Wait's Act. & Def. 516. 8. Since the keeping in a simple bailment is gratuitous, how, then, can the law imply^ or the parties make, a valid contract f When a person receives the property into his custody, and ac- 158 Bailment, tually enters upon the trust, the confidence placed in hini and his undertaking will raise a sufficient consideration, after which) he is bound to perform his agreement and execute his trust,. Rutgers v. Lucet, 2 Johns. Cas. 92. 9. May one he made a depositary against his will f No ; it must be with his knowledge aud consent, for no one can have the possession of another man's property with its accompanying duties and responsibilitiiss forced upon him against his will. Consent may, however, in some cases be implied or inferred. 1 Wait's Law & Pr. 557 ; 2 Pars, on Cont. 96. 10. Is the finder of lost chattels, money or other lost property^ under a legal obligation to take them into his custody ? He is not ; but if he assumes the charge of them the law imposes upon him the duties of a depositary, and gives to him a special property in them, and a right of action against all per- sons who shall injure, take, or convert the same. 2 Pars, on Cont. 96, 97. 11. What degree of care does the law require to he exercised hy a depositary f In general he is bound to take the same care of things ac- cepted by him to keep, as he ordinarily does of his own property. He will be liable to make compensation to the owner, if the goods are stolen, damaged or lost by reason of gross negligence in the- keeping of them, but he is not responsible for common neglect or ordinary casualties. 1 Wait's Law & Pr. (5th ed.) 558 ; 2" Kent's Com. 560 ; 2 Wait's Act. & Def. 519 ; 8 id. 225. 13. If the depositary loses his own goods at the same time that he loses the deposit made with him, will he he relieved of his liability- to the bailor f The question of liability in such cases is not to be deter- mined by what the depositary may have done in the particular instance, but by his general habits and character, his mode of life, and the degree of care he has ordinai-ily bestowed upon his own property. If he has been guilty of gross negligence he cannot excuse himself from liability by showing that he lost his- Bailment. 15^' own goods at the same time that he lost his neighbors. 1 Wait's- Law & Pr. (5th ed.) 559 ; 2 Wait's Act. & Def. 520. 13. Suppose one selects as depositary a person of vjeak intellect^ or a child, or a minor, without experience, or a notoriously idle and careless or drunken fellow, can such bailor he charged with the loss of the deposit? No; for the bailor having been guilty of gross negligence, ip the first instance, by intrusting property to a person of whom he knew nothing, and into whose previous habits and character he did not trouble himself to inquire, has no ground, either in conscience or in point of law, to charge the bailee with the loss» 2 Kent's Com. 562 ; 1 Wait's Law & Pr. (5th ed.) 560 ; 2 Wait's Act. & Def. 521. 14. Goods are hailed hy A to B, to he kept hy the latter, and B hails them to O who uses and wastes the goods ; does C incur- any liahility, and to whom? He becomes liable to A for the loss of the goods, and A may maintain an action against him for the recovery of com- pensation in damages. 1 Wait's Law & Pr. (5th ed.) 562. 15. May the depositary make use of the deposit for his own benefit and advantage ? As a general rule he has no right to do so, and if he does and the thing is lost or injured, the depositary must make good the loss ; but if the subject-matter of the bailment be a living animal, as for example, a horse, which requires air or exercise^ the bailee has an implied authority from the owner to use it to a reasonable extent, and is under an implied engagement to give it proper air and exercise. 1 Wait's Law & Pr. (5th ed.) 562 ;, 2 Wait's Act. & Def. 522 ; 2 Kent's Com. 124 ; Story on Bailm. §90. 16. Suppose a deposit has been made in the hands of a bailee by two persons Jointly, may the thing deposited be demanded back by one of them alone ? No ; where a deposit is made by several depositors neither «f them can legally demand a return of the property without the authority of all. But if the goods be deposited by one of several 160 Bahment. joint owners, the bailee may redeliver them to the party making the deposit. 1 Wait's Law & Pr. (5th ed.) 564. 17. In case the depositor turns out to he a thief and to have •stolen the things deposited, to whom must the depositary make restoration ? In this case the depositary must restore the deposit to the true owner, if he appears. And when the true owner of the property reclaims it, or if the property is taken by virtue of legal process issued against the depositor, this will excuse the depositary for his omissipn to return it. 1 Wait's Law & Pr. 564. 18. When goods are hailed, to he delivered hy the hailee on demand, where are such goods deliverahlef A bailee bound to deliver goods on demand discharges, his ■obligation by delivering or tendering them where they are, or at his own residence or place of business, but the demand may be made of him elsewhere. 2 Pars, on Cont. 94 ; 1 Wait's Law & Pr. 565. 19. In what condition is the depositary hound to deliver the thing deposited? He is bound to deliver it as it was when received, and with it all its increase and profits. Thus, where he has taken charge «f a flock of sheep, he must restore the wool shorn from their backs and the lambs they have produced, together with the sheep themselves. So, if the profits, produce and increase of the de- posit are of a perishable nature, such as milk, eggs and butter, and have been necessarily sold, the proceeds of the sale must be paid to the depositor. 1 Wait's Law & Pr. 564 ; 2 Pars, on Cont. 94 ; 2 Kent's Com. 567. 20. If, in addition to assuming the mere passive custody of the thing hailed, the hailee or depositary, expressly or impliedly, undertakes that something shall he done to it gratuitously for the henejit of the bailor, is the nature of the bailment thereby changed ? It is. On such undertaking, a mere naked deposit or ample bailment advances to a mandate, and the bailee becomes clothed with the daties and the implied engagements of a mandatary, in Bailment. 161 «,ddition to those of a mere depositary for taking care and custody. 1 Pars, on Cont. 98 ; 1 Wait's Law & Pr. 565 ; 2 Kent's Com. 568. 21. Where a man promises to perform work upon the chattel of another gratuitously, and the chattel is hailed to him for the jpurpose expressed, is he under a legal obligation to perform the service ? Yes ; for his acceptance of the possession of the chattel in execution of his engagement is an entering on the work and employment, and if, after having accepted such possession, and having taken the chattel away with him, he neglects to do that "which he promised to perform, this neglect is a misfeasance for which he will be held responsible. In such case the delivery and acceptance of the chattel constitute a sufficient consideration. 1 Wait's Law & Pr. 566 ; 2 Pars, on Cont. 99. 22. May not the mandatary revoke his promise and return the chattel, and thus relieve himself from liability ? He may, if he does so without delay, and before his accept- ance of the trust and his failure to fulfill it have occasioned loss or damage to the mandator; but if such revocation will place the "^ latter in a worse position than he was at the time the mandate was accepted and the promise made, the mandatary cannot law- fully withdraw such promise and refuse to execute the trust. 1 Wait's Law & Pr. 567. 23. Suppose you undertake gratuitously to convey money or goods from one place to another, and you enter upon the trust, what de- gree of care and diligence are you hound to exercise in the execu- tion of the task ? I will be answerable for the same degree of care and dili- gence as a person of common sense and common prudence might "be expected to exercise in the conveyance of his own property. If, through my negligence' or mismanagement, the goods are lost or stolen, injured or spoiled, the owner can hold me responsible for the loss. But if the money be taken from me by forcible robbery, without any default on my part, I cannot be held re- sponsible for its loss. 2 Kent's Com. 569 ; 1 Wait's Law & Pr. -5685 4 Wait's Act. & Def. 387. 11 162 Bailment. 24. If a chattel he hailed to a workman in some particular craft or trade, to he repaired gratuitously for the henefit of the mandator^ will the mandatary in such case incur any liability for injuries- caused hy unskillful workmanship f He will, because the situation aud profession of the artisan in such a case naturally imply that he is possessed of competent skill, and he is responsible for injuries resulting from his neglect to use it, whether he is or is not to be paid for his labor and pains. 1 Wait's Law & Pr. 568 ; 4 Wait's Act. & Def . 387. 25. Suppose a person, known to he unskilled in the particular ■ work or employment he gratuitously undertakes, does the work, at the solicitation of a friend, with such ability as he possesses, will he he responsible if the work is unskillfully done f No. In such case he will stand excused, for it is the man- dator's own folly to intrust the work with him, and the party en- gages for no more than a reasonable exertion of his capacity- 1 Wait's Law & Pr. 569. 26. If a surgeon should undertake, gratuitously, to attend a wounded person, and should treat him improperly, would he be^ come liable for the improper treatment? He would, because his profession implied skill in surgery. 2 Kent's Com. 572. 27. In respect to the custody and safe keeping of the chattel what are the liabilities of the mandatary ? In this respect he is clothed with the ordinary liabilities and responsibilities of a depositary, namely, he is bound to take, the same amount of care of things accepted by him that he has.- ordinarily taken of his own property. He will be liable to make- compensation to the owner, if the goods are stolen, damaged or lost by reason of gross negligence in the keeping of them ; but he is not responsible for common neglect or ordinary casualties. 1 Wait's Law & Pr. 567 ; 2 Kent's Com. 572 ; 4 Wait's Act. &• Def. 387. 28. What are the obligations of a mandatary, where the subject- matter of the bailment consists of living animals, such as horseSy oxen, cattle or sheep ? He is bound to furnish them with suitable food or nourish- Bailment. 163 ment, and to give them a proper and reasonable amount of ex- ercise and fresh air ; and if a man takes charge of cattle or sheep, and afterward takes no heed of them, but lets them stray away and get drowned or lost, it is a breach of trust, and he is responsible for the loss. 1 Wait's Law & Pr. 569 ; 4 Wait's Act. & Def. 388 ; 2 Kent's Com. 572. 29. Suppose a mandatary intrusts with a servant what he him- self has expressly undertaken to perform, does he thereby assume the responsibility of his servant's negligence ? He does ; for the negligence of the servant, in carrying into execution the orders of the master, is the negligence of the master, and the latter will be responsible accordingly ; but, if the servant deals with the property of his own will, and with- out the warrant or authority of the master, the latter is not responsible, unless he is in default in knowingly employing a drunken, negligent or dishonest servant. 1 Pars, on Cont. 30. Where the bailee is to have the use and enjoyment of the subject-matter of the bailment for his own benefit and advantage, without payment of hire or reward to the bailor., what then is the nature of the bailment ? In this case the bailment becomes a gratuitous loan, and the bailee is clothed with the duties, responsibilities and implied en- gagements of a borrower for use, in addition to those of a mere depositary and mandatary. 1 Wait's Law & Pr. (5th ed.) 571 ; 2 Kent's Com. 574. 31. Give the distinction between a loan for use and a loan for consumption. This is a distinction made by the Roman, or civil law, the former being called a commodatum, which is a loan of a speci- fic chattel which is to be used by the bailee, and the identical article is then to be returned. The latter is called a mutuum, the thing being bailed to be consumed, and an equivalent in kind subsequently returned. 1 Wait's Law & Pr. 571 ; 2 Kent's Com. 573. 32. In a bailment by way of mutuum, or for consumption, how 164 Jailment. does the bailee become discharged from his liability to his bailor f In a bailment of this kind, the chattel bailed becomes the absolute property of the bailee, to do what he pleases with it and use it in any way he thinks fit ; and he fully discharges his en- gagement by substituting the same specific value, according to a just estimation of number, of weight, and of measure. 1 Wait's Law & Pr. 571. 33. When a thing is bailed by way of " commodatum " or for use, what obligation does the borrower or bailee assume ? In this case the temporary right of possession and use only is transferred, the right of property remaining in the lender ; and the borrower is consequently obliged to render back the iden- tical thing lent, in as good condition as it was when borrowed, subject only to the loss resulting from inherent defects or pro- duced from ordinary wear and tear and the reasonable use of it for the purpose for which it was known to be required. 1 Wait's Law & Pr. 571 ; 2 Kent's Com. 574. 34. What degree of care and diligence does the law require on the part of a borrower ? The borrower is bound to the strictest care and diligence to keep the goods in such a manner as to restore them back to the lender ; and he cannot apply the thing borrowed to any other than the very purpose for which it was borrowed ; nor can he permit any other person to use the thing loaned, for such a grat- uitous loan is strictly a personal favor. 1 Wait's Law & Pr. 572 ; 2 Kent's Com. 574. 35. Suppose the borrower should be placed in such a situa- tion as to be unable to save the articles borrowed from destruction, as by fire, without abandoning his own goods, and he prefers saving the latter, will he be held responsible for the loss of the former f He will. In such case he must pay the loss, because he cared less for the article borrowed than for his own property, and gave the preference to his own. 2 Kent's Com. 575. 36. Is inevitable accident sufficient in every case to excuse the borrower from liability for injuries to the thing borrowed ? It is not. Thus, if a person borrows a horse of his friend ia Bailment. 165 order to save his own, and conceals from his friend the fact that he had one of his own equally proper for the occasion, and the borrowed horse is unavoidably injured or killed, he will be re- sponsible for the loss, for this was a deceit practiced upon the lender, and nothing will exempt him from this responsibility but the fact that he had previously disclosed to his friend the truth of the case, and his disinclination to hazard his own horse. 1 Kent's Com. 576. Zl. If a person puts a harrowed horse into a ruinous shed which is likely to fall, and the building is blown down during a tempest and falls upon the horse and hills it, is the borrower responsible? He is ; for if the building had been strong, and in good re- pair, the disaster might not have occurred ; and it cannot there- fore be taken as a chance, but as the default of him who had the horse delivered to him. 1 Wait's Law & Pr., 573. 38. In a bailment by way of " inutuum " or for consumption is loss by inevitable accident sufficient to excuse the bailee from re- sponsibility ? No ; for as the right of property in a bailment of this kind , is transferred to the bailee, so also is the risk of loss. If, there- fore, the bailee is robbed before he reaches home, or the thing bailed is destroyed by wreck, fire or inevitable accident before it can be used, the bailee must, nevertheless, pay the equivalent, which he owes to the bailor at the time appointed. 1 Wait's Law & Pr., 574, 575 ; 2 Kent's Com. 573. 39. What is meant by a contract of pledge? Such a contract is a bailment or delivery of goods or chat- tels by one man to another, to be held as a security for the pay- ment of a debt or the performance of an engagement, and upon the express or implied understanding that the thing deposited is to be restored as soon as the debt is discharged or the engage- ment has been fulfilled. 1 Wait's Law & Pr. 577 ; 2 Kent's Com. 577 ; Story on Bailm. § 286 ; Tyler on Usury, Pawns & Loans, 481. 40. What species of property may be the subject of pledge at common law ? All kinds of personal property may be the subject of pledge; 166 .Bailment. and so may choses in action, resting on written contract, be as- signed in pledge. 1 Wait's Law & Pr. 577 ; 2 Kent's Com. 577. 41. If one person should pledge the, goods of another, has the pledgee any right to detain them as against the owner ? He has not ; for, as a general rule, one man cannot convey to another a power or right over property which he does not himself possess. But if a man obtains goods under color of a contract intended to transfer the property in the goods to him, and then pledges them, the pledgee will have a lien upon the goods to the amount of his advances. 1 Wait's Law & Pr. 578. 42. What is the rule as to the degree of care required on the part of the pledgee, respecting the property pledged with Mm ? The general rule is, that every person who receives goods and chattels or securities into his possession, by way of pawn or pledge, impliedly undertakes to take the same care of them that a prudent and cautious man ordinarily takes of his own property. 1 Wait's Law & Pr. 584 ; 2 Kent's Com. 578 ; 5 Wait's Act. & Def. 178. 43. May the pledgee lawfully use the articles pledged or pawned? If the pawn or pledge be something that will be the worse for use or wear, as clothes or similar articles, the pawnee or pledgee cannot lawfully use it ; but if it will not be the worse for use or wear, as a watch or jewels, the pawnee may use them, though the use is at his peril, for, if he is robbed while wearing them, he wiU be answerable. So if the pawn be of such a nature that the keeping is a charge to the pawnee, as if it be a cow era horse, the pawnee may milk the cow or ride the horse, and this will be a recompense for the keeping. 2 Kent's Com. 578 ; 1 Wait's Law & Pr. 585 ; 5 Wait's Act. & Def. 174 ; Story on Bailm. §§ 229, 230 ; Jones on Bailm. 81 ; Tyler on Usurj', Pawns and Loans, 562. 44. Suppose the goods are lost hy rohhery or unavoidable accident, will the pledgee he answerable for them ? He will not, if the loss from such causes be duly made to ap- pear, and no act was done, or omitted to be done, inconsistent with the pledgee's duty ; and he may, notwithstanding the loss Bailment. 167 ^nd his consequent inability to return the deposit, sue for the Tecovery of his debt. 2 Kent's Com. 579 ; 1 Wait's Law & Pr. (5th ed.) 685. 45. If the money for which the goods were pawned is due, and a tender is made hy the pawnor to the pawnee before the goods are lost, what then is the liability of the pawnee ? In this case the pawnee will be answerable for the goods in -any event, because, by detaining them after the tender of the -money, he becomes a wrong-doer, and a man who keeps goods by wrong must be answerable for them at all events. 1 Wait's Law & Pr. 585. 46. What course may the creditor pursue, in case the pledgor neglects or refuses to redeem the pledge by payment of the debt it was intended to secure ? The law, in such case, will not condemn the pledge to re- main useless in the hands of the creditor, or suffer it to perish, but will enable the latter, after due notice given to the debtor, and every fair opportunity afforded him to redeem, to sell the pledge and appropriate the proceeds of the sale in liquidation and •discharge of the debt, paying over the surplus that may remain to the debtor. 1 Wait's Law & Pr. 581 ; 2 Kent's Com. 582. 47. May the pledgee, under any circumstances, appropriate the pledge to his own use and hold it as his own property f He may, where the value of the pledge does not exceed the ■amount of the debt due upon it, and the costs and expenses of a ■sale ; but, in order to make himself the owner of the pledge, he must bar the pledgor's right to redemption by a decree of fore- 'Closure, or by sale, after due notice to the pledgor. 1 Wait's Law & Pr. 581. 48. May the pledgor maintain an action against a stranger who unlawfully possesses himself of the goods in the hands of the j)ledgee ? He may, since the right of property in the pledge remains in him until foreclosure, forfeiture or sale ; but if there is an in- jury or conversion by a stranger, for which an action will lie on , the part of both the pledgor and the pledgee, a recovery by one ousts or debars the other of his right to recover, for there cannot 168 Bailment. be a double satisfaction. 1 Wait's Law & Pr. (5th ed.) 585 ; 2 Kent's Com. 585. 49. What is the nature of the bailment or contract, where a thmg h hired for a reward f This is a contract by which the use of a thing, or labor or seivices about it, are stipulated to be given for a reasonable compensation, express or implied. It includes the thing let,, the price or recompense, and a valid contract between the- letter and hirer. 2 Kent's Com. 585 ; Story on Bailments, §§ 372- 377. 50. Does the person hiring gain any property in the thing hired ? The hirer gains a special property in the thing hired, and the letter to hire an absolute property in the price, and retains a general property as owner in the chattel. 2 Kent's Com. 586^ 51. To what degree of care and diligence is the hirer of a chattel hound ? He is bound to ordinary care and diligence, and is answerable- for ordinary neglect ; for, in this species of bailment, the parties, are mutually benefited. The owner or letter must bear the loss- which results from all ordinary risks to which the chattel is nat urally liable, but not to risks occasioned by negligence or want of ordinary caution on the part of the hirer. 2 Kent's Com. 586 j 3 Wait's Act. & Def. 615 ; 8 id. 301, 302 ; 1 Wait's Law & Pr. (5th ed.) 589. 52. If a chattel is hired for a particular purpose, has the hirer a right to use it for a different purpose ? He has not. Thus, if a horse is hired to go one particu- lar place, the hirer has no right to go with it to another and different place, either by goin^g beyond the intended place, or by going to another place in a different direction, and if he does go to such other or different place, and a loss occurs luring such misuser, the hirer will be responsible in all events, i Wait's Law & Pr. 590 ; 3 Wait's Act & Def. 615 ; 8 id. 302. 53. A horse is hired for a journey, and, on the road, it falls and- Bailment. 169" is lamed, or in some othef" accidental manner is injured or hilled ; in such case who must hear the loss f If the injury resulted from no fault of hirer, and he is under no contract obligation to return the horse in good condition, the loss falls on the owner ; but if the injury resulted from the negligence or improper use of the animal by the hirer, or if he has contracted to return the animal in as good condition as when he received it, the loss falls upon the hirer, and he must make full compensation to the owner for the damages sustained. 1 Wait's Law & Pr. (5th ed.) 590 ; 8 Wait's Act. & Def, 302. 54. In an action by the owner or letter of a horse against the- hirer for carelessness, negligence or mismanagement of the horse while in the hirer's use, on whom lies the burden of proof ? The burden of proof is on the owner to establish the fact that the injury arose from the negligence or mismanagement of the hirer, unless the injury is one that does not ordinarily occur without negligence, in which case the burden is on the hirer to- show how the injury occurred, and that he was not guilty of negligence. Story on Bailm. §§ 406, 411 ; 1 Wait's Law & Pr. (5th ed.) 591 ; 2 Kent's Com. 587. 55. Suppose that chattels have been bailed or let to hire for a cer- tain term, and the bailee does an act which is equivalent to the de- struction of the chattels, or which is entirely inconsistent with the- terms of the bailment, what effect does such an act have? It terminates the contract of bailment, and authorizes the owner to resume possession of the chattel if he can do so peace- ably, or if he cannot peaceably retake it, to maintain trover against the hirer. 1 Wait's Law & Pr. (5th ed.) 591 ; 3 Wait's Act. & Def. 615 ; Story on Bailm. § 396. 56. In a bailment, where worlc and labor or care and pains are to he bestowed on the thing delivered, for a pecuniary recompense, what responsibility does the bailee assume ? He must answer for ordinary neglect of the goods bailed,, and apply a degree of skill commensurate with his undertaking. He is presumed to possess the ordinary skill requisite to the du& exercise of the art or trade which he assumes, and if he performs 170 Bailment. the work unskillfuUy he becomes responsible in damages. 1 Wait's Law & Pr. 600 ; 2 Kent's Com. 588. 57. If an article he delivered to a mechanic to be repaired or materials are delivered to he wrought into new form and shape, and the thing is accidentally destroyed before the work is finished and ready for delivery, without any fault or negligence on the part of ■the mechanic, on whom falls the loss? As a general rule, according to the English law, the entire loss falls upon the owner of the materials ; for he is bound to answer for the work and labor already bestowed. The general rule is liable, however, to be controlled by the custom of the trade. Story on Bailment, § 441 ; 2 Kent's Com. 591. 58. Where an artist or mechanic undertakes to perform a piece of work and executes it so negligently and unskillfuUy as to render it utterly useless to the employer, can he recover any payment of the latter for such worthless services? He cannot ; and in such cases it is always competent for the ■defendant to show that the work was done in such a manner as to be of no value or service to him. 1 Wait's Law & Pr. 598. 59. May a workman accomplish the work he undertakes through the medium of inferior agents or workmen ? He may, unless the work requires a peculiar skill or genius which is possessed by him to an unusual degree, and he has ex- pressly or impliedly contracted to do the work in person. 1 Wait's Law & Pr. (5th ed.) 599. 60. Is the degree of skill and diligence which the law requires from the workman, the same in all cases ? The skill and diligence of the workman must in all cases be adequate to the business ; but the degree required rises in pro- portion to the value, the delicacy, and the beauty of the work, and the fragility and brittleness of the material. 2 Kent's Com. 589 ; 1 Wait's Law & Pr. 599. 61. What is the implied undertaking of one who offers himself for employment in a professional capacity ? 1. That he possesses that reasonable degree of learning and skill which is ordinarily possessed by professors of the same art or Bailment. 171 science, and which is ordinai^lj'- regarded by the community, and by those conversant with the employment, as necessary to •qualify him to engage in such business. 2. That he will use reasonable and ordinary care and diligence in the exercise of his skill, and the application of his knowledge to accomplish the purpose for which he is employed. 3. That he will use his best judgment in the exertion of his skill and the application of his ^diligence. 3 Wait's Act. & Def. 595. 62. If a person selects and employs a common quack^ or an mw- authorized practitioner, to what degree of care and skill is the latter held responsible ? He is bound to exercise such skill as he actually possesses, and having done this, is not responsible for want of greater skill. ,1 Wait's Law & Pr. (5th ed.) 600. 63. What is the general rule as to the responsibility of an, inn- Jceeperfor the goods of his guest whom he receives and accommodates ^or hire ? At common law the innkeeper is, in general, responsible for the acts of his domestics, and for thefts, and is bound to take all due care of the goods and baggage of his guests deposited in Jiis house or intrusted to the care of his family or servants, day and night. The custody of the goods of his guests is part and parcel of the contract to feed, lodge and accommodate ' the guest for a suitable reward. 2 Kent's Com. 592. 64. When does the liability of an innkeeper for the goods of his ■guest terminate f It terminates when the relation between the innkeeper and guest no longer continues ; and that relation ceases when the guest pays his bill and leaves the house with the declared in- tention of not returning. 1 Wait's Law & Pr: 607 ; 8 Wait's Act. & Def. 326. 65. Is it sufficient to excuse an innkeeper from liability, that he was sick or insane at the time the goods of his guest were lost ? It is not ; for in such case he is bound to retain and employ trusty servants to secure the goods of his guest. 2 Kent's Com. 593; 1 Wait's Law «& Pr. 612. 172 Bailment, 66. Suppose a person leaves his horse at an inn, without ashing for or receiving any accommodation or entertainment for himself y. hut merely desires to have the horse kept for a night while he is on a visit to a neighhoring house, where he is entertained and remains all night to the knowledge of the innkeeper, will such a state of facts he sufficient to constitute the relation of innkeeper and guest ? It will not ; and the liability of the innkeeper will be merely that of a bailee of goods for hire ; hence, if the horse should ba accidentally injured or killed, the innkeeper will not be liable for the loss. 1 Wait's Law & Pr. 60T. 67. In what respect has the common-law liability of innkeepers been modified by statute in this State ? By an act of the legislature (Laws 1855, ch. 421), inn- keepers in this State are exonerated from liability from loss of money, jewelry or ornaments, providing they keep a safe for such articles, and post a notice of the fact in the room of each guest, or give the guest actual notice of it. The act does not apply to- a watch and chain and a reasonable sum of money for traveling expenses. 1 "Wait's Law & Pr. 609. 68. Who are common carriers? Common carriers are persons who undertake, as a business for hire or reward, to convey goods and deliver them at a place appointed, and for all who may choose to employ them. Thus,, every person who undertakes, with a carriage by land, or a boat or vessel by water, to transport the goods of such persons as may choose to employ him from place to place for hire, is a common carrier. 1 Wait's Law & Pr. 614 ; 2 Kent's Com. 598 ; 2 Wait's Act. & Def. 8 ; 8 id. 146. 69. If a person holds himself out to the world as a common carrier, is he bound to accept and carry all such things as he publicly professes to carry ? He is ; and he must do so for all persons who are ready ani willing to pay him his customary hire, provided he has room ia his boats, cars, coaches, carts or carriages for their conveyance^ and he intends to set out on his accustomed journey. Should he refuse without some just ground, he is liable to an action for Bailment. 173 iis refusal. 1 Wait's Law & Pr. 616 ; 2 Kent's Com. 599 ; 2 Wait's Act. & Def. 16, 65. 70. From what time does the carrier's liahility commence f It commences from the time the goods are received by the ■carrier for transportation, or by any agent or servant acting in his behalf and authorized to receive them. 2 Wait's Act. & Def. 18, 19. 71. What is the extent of a carrier'' s liability for the loss of ■goods intrusted to him for carriage? He is responsible, irrespective of any question of negligence or fault on his part, if the loss does not occur by the act of God ■or the public enemies. With these exceptions he is an insurer against all losses. 1 Wait's Law & Pr. (5th ed.) 626; 2 Kent's Com. 602 ; 2 Wait's Act. & Def. 24. 72. Suppose the loss of goods in the hands of a carrier hap- pens only in part through human agency, is the carrier excused? He is not. 2 Wait's Act. & Def. 25. 73. Croods were delivered to a steamboat company, for trans- portation, and after the boat with the goods had arrived at the place of its destination, but while the goods were still in the carrier's custody, a fire broke out in the city, and extended to and burned and destroyed the boat and the goods; was the car- rier liable in this case for the value of the goods ? He was; because a loss which arises from an accidental fire, or the conflagration of a city, without any default what- ever on the part of the carrier, does not furnish him with any -excuse, nor fall within the exception as an act of God. 2 Kent's Com. 602 ; 1 Wait's Law & Pr. 628. 74. From the liability of what losses will the carrier be excused, on the ground that they were caused by the public enemy ? From those only which are sustained from persons witl) whom the State or nation is at war ; and pirates on the high seas, who are " the enemies of all mankind." It will not be .sufficieut excuse that the loss was caused by thieves, or robbers, 174 Bailment. or mobs, or rioters, insurgents or rebels. 2 Pars, on Cont. 163 j Story on Bailm., §§ 25, 526. 75. When does the liahility of a common carrier terminate ? Not until he fully performs his contract by safely delivering- the goods received by him. 2 Wait's Act. & Def . 49 ; 8 id. 153 j 2 Pars, on Cont. 183 ; 1 Wait's Law & Pr. 633. 76. Within what time must the delivery of the goods he made? The delivery of the goods by the carrier must be made: within a reasonable time, all the circumstances of the case being considered ; and within the proper hours of business, when the goods can be received and properly stored. 1 Wait's Law & Pr. 633 ; 2 Pars, on Cont. 183. ■77. Suppose the consignee refuses to receive the goods, or cannot receive them, or is dead, or absent, will this he sufficient to excuse delay in delivery ? It will ; but the carrier in such case will not be absolved from all duty or responsibility ; for he is still bound to mate every reasonable effort to place the goods in the hands of the consignee, and if he fails, then to take care of the goods for the owner, by holding them himself, or lodging them with suitable persons for him ; and such persons then become bailees for thfr owners of the goods. 2 Pars, on Cont. 185 ; 1 Wait's Law & Pr.. 634. 78. May a carrier limit his liahility hy an express contract, and^ if so, to what extent may he carry this limitation ? It is well settled in this State that a carrier may by express, contract exempt himself from responsibility for damages result- ing from any degree of negligence on the part of himself or his. servants, agents or employees ; but that a contract will not be. construed as having that effect from the use of general words^ or unless the intent is so plainly and distinctly expressed that it cannot be misunderstood by the other contracting party. 1 Wait's Law & Pr. (5th ed.) 648 ; 8 Wait's Act. & Def. 170. 79. Suppose a common carrier publishes a general notice, as, for example, " All baggage at risk of owners," will this be suffi,cient t(y screen him from liahility? It will not. The sender may disregard the notice, and the Bailment. 175 "baggage will be at the risk of the carrier; or he may expressly refuse to be bound by it, and insist that his baggage shall be carried under the responsibility which the law creates ; and if the carrier refuses to take the goods he will render himself liable to an action. 2 Pars, on Cont. 244 ; 1 Wait's. Law & Pr. 647 ; 2 Wait's Act. & Def. 88. 80. Is the liability of a common carrier, as to passengers, the same as his liability/ as to goods? It is not. In the former case he is liable only where the in- jury results from his own negligence ; but, in the latter case, he insures the owners of all the goods he carries against all loss or injury whatever that does not come from the act of God or the public enemy. 2 Pars, on Cont. 219 ; 2 Kent's Com. 600. 81. Upon what ground is this distinction founded P The carrier of goods has absolute control over them while they are in his hands, and he may, therefore, secure them in any way in his power ; but the carrier of passengers must leave them to some power of self-direction, some care of themselves ; hence, it would be wrong to hold him to as absolute a responsibility as in the case of goods. 2 Pars, on Cont. 223. 82. In an action against a carrier, would it be a sufficient defense that the injury to the passenger was caused by the negligence of the carrier^ s agent or servant ? It would not, for the carrier is liable for the slightest negli- gence, not only in himself, but in his agent; and even though, the negligence be willful on the part of the latter. 2 Kent's Com. 601 ; 2 Pars, on Cont. 220. 83. May a common carrier of passengers limit his liability by contract ? In this State he may so relieve himself from liability for the negligence of his agents and servants ; even for gross negligence, where the passenger is willing to accept the risk for a considera- tion. 8 Wait's Act. & Def. 168. 84. In providing vehicles for passengers, what degree of care is the carrier bound to exercise ? A carrier of passengers is not an insurer of their safety and 176 Bailment. does not undertake that the vehicle he employa is absolutely free from defects, but he is held to the exercise of the utmost skill and care in the construction, or selection, and management of the vehicle used. 2 Wait's Act. & Def. 68 ; 8 id. 155, 166 ; 1 Wait's Law & Pr. (5th ed.) 641. 85. Is a common carrier of passengers liable for the baggage of his passengers ? He is. The law regards him as an insurer of the baggage •of his passengers, and he is responsible for any loss which is not occasioned by inevitable accident, or the enemies of the country. And to render him thus liable it is not necessary that anything should be paid specifically for baggage, because the payment of the passenger's fare includes the carriage of his baggage. 1 Wait's Law & Pr. 642 ; 8 Wait's Act. & Def. 164. 86. Suppose the passenger retains his baggage in his own ex- •elusive custody, is the carrier then liable for its loss or injury f He is not. In assuming the custody and control of his bag- ;gage the passenger also assumes the risk of its loss, and the car- rier is not answerable. 1 Wait's Law & Pr. 644. 87. State briefly the duty which the law requires on the part of a common carrier to be performed toward his passengers f It is his duty to receive all passengers who offer ; to carry them the whole route ; to demand no more than the usual and established compensation ; to treat all his passengers alike ; to behave to all with civility and propriety ; to provide suita- Tjle carriages and means of transport ; to maintain a reasonar ble degree of speed ; and to have servants and agents compe- tent for their several employments, and for the default of any of his servants and agents in any of the above particulars or generally, in any other points of duty, the carrier is directly responsible, as well as for any circumstances of aggravation which attended the wrong. 2 Pars, on Cont. 228 ; 2 Kent's €om. 601. 88. Sas the common carrier a right to prescribe rules and regu- lations as conditions to be observed by the passengers f He has a right to prescribe reasonable rules and regulations Bailment, 177 in receiving passengers and in protecting them from annoyance on their arrival and departure. Thus, he is not bound to receive or carry drunken or disorderly persons. He has a right to insist that the fare be prepaid, and that each passenger shall show his ticket on request; and for a refusal to pay he may refuse to re- -ceive a passenger, or for a refusal to show his ticket he may jiut him off, using no unnecessary violence. 2 Pars on Cont. 229 ; .8 Wait's Act. & Def. 161. 89. MciT/ the use of a ticket on a railway/ be limited hy the carrier to a particular train or day ? A common carrier of passengers may, by agreement, provide that a passage shall be made within a time specified, and in one continuous trip, and if he does so, the ticket cannot be used on any day after the time specified has elapsed, nor on two or more trains. 2 Wait's Act. & Def. 89, 90. 90. Does a common carrier of goods acquire a lien on them for -Ms freight He does, and may withhold the goods until the freight is paid. 1 Wait's Law & Pr. (5th ed.) 621 ; 2 Wait's Act. & Def. >60 ; 2 Pars, on Cont. 207. 91. What is the duty of a common carrier of goods in case he cannot find the consignee or learns that he is a swindler and would, • cheat the consignor? In such case the carrier is bound to protect the owner and ■consignor, and for that purpose should hold the goods or store them in some proper way for his use. The rule is the .same if the consignee refuses to receive the goods. 2 Pars, on ■Cont. 210. 92. If a carrier should he induced to deliver goods to the con- ■ gignee, by a false and fraudulent promise of the latter that he would pay the freight as soon as they were delivered, would ■t\e delivery in such case amount to a waiver of the carrier'' s It would not ; and the carrier may disaffirm the delivery, and jnaintain replevin to recover possession of the property. 1 Wait's Xaw & Pr. 622 ; 2 Pars, on Cont. 207. 12 178 Bailment 93. In an agreement to carry a passenger and Ms haggage^ for what amount of baggage will the common carrier he field liable ? Only for ordinary baggage, or such articles of necessity and personal Convenience as are usually carried by passengers. He will not be liable for goods carried by way of merchandise, nor for a larger sum of money than the passenger might reasonably take on such a journey for his expenses. 1 Wait's Law & Pr.. 643 ; 2 Pars, on Cont. 254. 94. In what way is the liability of a common carrier affected,- where the loss of the goods has in any way been contributed to by the conduct of the bailor or consignor ? In such case the common carrier is not liable. 1 Wait's Law & Pr. 629. 95. What is the remedy for a wrongful refusal by a carrier to-' receive and transport goods tendered to him for carriage ? The remedy is by an action against the carrier to recover the damages sustained by the owner of the goods tendered. 8. Wait's Act. &Def. 148. 96. What damages are recoverable in such action ? The measure of damages is the difference between the value^ of the property at the place where it was offered for carriage and its value at its intended destination, less the expenses of trans- portation. 8 Wait's Act. & Def. 148. 97. If a railroad company possesses the necessary rolling stock and employees sufficient to transact its business, but is prevented by mob violence from moving its trains and transporting freight, is it liable to shippers for the damages sustained by them by reason of the delay in transportation ? It is not. 8 Wait's Act. & Def. 150. 98. What is the extent of the duty of a carrier who receives goods- marked to a destination beyond the terminus of his line f In the absence of a special contract, express or implied, for the safe transportation of the goods to their known destination, the carrier is only bound to carry the goods safely to the end of his line, and there deliver them to the next carrier in the rOiit'e.: 2 Wait's Act. & Def. 36 ; 5 id. 335 ; 8 id. 150. Bailment. 179 99. When goods carried to their destination are marked with the name of a consignee unknown to the carrier, has the latter a right to warehouse them without malcing any effort to find the consignee and to notify Mm of their arrival ? He has not. A diligent effort to find the consignee and to notify him of their arrival is condition precedent to a right to warehouse them ; and if the carrier places them in a warehouse without such effort he will be liable for the damages sustained by the consignee. 1 Wait's Law & Pr. (5th ed.) 634 ; 8 Wait's Act. & Def. 155. 100. What would he the measure of damages in such case? • It would be the difference in the value of the goods at the time when they should have been delivered, and at the time when they were actually delivered. 8 Wait's Act. & Def. 155. 101. If a passenger on a railroad train is assaulted and robbed of a large sum of money, bonds, or other articles of great value, which he is carrying on his person without notice to the carrier, can he recover the value of these articles, as part of his damages, in an action against the carrier for a breach of his duty to protect the plaintiff from violence f He cannot, unless it appears that the carrier was guilty of gross negligence or fraud. 1 Wait's Law & Pr. (5th ed.) 643 ; 8 Wait's Act. & Def. 158. 102. Is payment of fare essential to give a person the rights of a passenger in all cases? It is not ; but a mere trespasser, or one who is riding on a train by stealth without the knowledge or consent of the carrier is not entitled to the extraordinary care and vigilance due to a jpassenger. 2 Wait's Act. & Def. 8"6 ; 8 id. 166, 167. 180 Negotiable Papee. CHAPTER XII. NEGOTIABLE PAPER. 1. Define a hill of exchange? It is an unconditional written order from A to B, directing' him to pay a sum of money therein mentioned to A, or his order, or to C, a third person, or his order. Edwards on Bills & Prom. Notes, 41 ; 1 Wait's Act. & Def. 634. 3. Define a promissory/ note ? It is an unconditional promise in writing to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named, or to his order, or to the bearer. Edwards on Bills & Prom. Notes, 124 ; 1 Wait's Act. & Def. 534. 3. Define a check? It is in effect a bill of exchange drawn on a banker, pay- able to order or bearer, on demand. Edwards on Bills & Prom. Notes, 58 ; 1 Wait's Law & Pr. (5th ed.) 690. 4. Describe the parties to a hill of exchange ? The parties are: 1. He who draws it, called the drawer; 2. He to whom it is addressed, called the drawee, before acceptance of the bill, but afterward the acceptor ; and 3. He to whom the money is to be paid, called the payee. There are also, when the bill is made payable to order, other parties who are indorsen of the bill, the holder in such case being the indorsee. Edwards on Bills & Prom. Notes, 41 ; 1 Wait's Act. & Def. 535. 5. State the relative liabilities of the parties to a hill of exchange f The acceptor is primarily liable, and is the principal, all the other parties being merely sureties for him. But the other par- ties are not as between themselves merely co-sureties, but each prior party is a principal in respect to each subsequent party. Edwards on Bills & Prom. Notes, 44; 1 Wait's Act. & Def. 622. Negotiable Paper. 181 6. TVhat is the theory upon which the use of hills of exchange as commercial currency is based? The theory of a bill of exchange is, that the drawer has funds in the hands of the drawee equal in amount to the sum which he orders paid ; and that the bill of exchange is an assign- ment to the payee of a debt due from the drawee to the drawer. Acceptance by the drawee is an acknowledgment that he has funds of the drawer in his hands. Edwards on Bills & Prom. Notes, 43 ; Daniels on Neg. Inst. § 534 ; Pars, on Bills. 323, 544, 645. 7. What is the difference heeween an inland and a foreign hill of exchange ? Foreign bills of exchange are such as are drawn by a person in one State or country upon a person in another State or country. Inland bills of exchange are such as are drawn upon a person re- siding in the same State with the drawer, or are drawn and pay- able in the same State or country though accepted abroad. Ed- wards on Bills & Prom. Notes, 47 ; 1 Wait's Act. & Def. 535. 8- What is meant hy an accommodation bill or draft f An accommodation bill or draft is one drawn upon a party who has no funds of the drawer in his hands, but who accepts it for the accommodation of the drawer, in pursuance of a previous agree- ment. Edwards on Bills & Prom. Notes, 43. 9. What presumption of law is raised hy the acceptance of a bill of exchange f Acceptance of a bill of exchange raises a presumption of funds in the hands of the acceptor, which is conclusive as between the drawee and any bona fide holder, and which is suiEcient to support an action brought against the acceptor by the drawer, on a bill payable to his own order. Edwards on Bills & Prom. Notes, 44; Daniels on Neg. & Inst. § 534; Parsons on Bills^ 323, 544, 545. 10- If an infant join with an adult in a bill of exchange, can either he sued on the bill? The adult may be sued, but the infant cannot. Edwards on Bills & Prom. Notes, 67. 182 Negotiable Paper, 11. In what manner may a vnarried woman rnake her separate estate chargeable with the payment of a bill of exchange or promis- sory note f By the same acts which would render her liable if unmar- ried. Laws of 1884, Chap. 381. 12. What will be the character of the liability of an executor on a negotiable note, signed by him as executor, and given in the dis- charge of his duties as such ? He will be liable personally. 1 Pars, on Bills & Notes, 161 ; 8 Wait's Act. & Def. 247. 13. What will be the nature of the liability of an executor upon an acceptance by him of a draft drawn upon him payable out of the estate of his testator ? He will be personally liable upon the acceptance although he added to his signature his name of office. Schmittler v. Simon, 101 N. Y. 554. 14. In what manner may an agent, specially authorized for that purpose, draw, acceptor indorse a bill for another, and avoid all personal liability thereon f . He may bind his principal, and at the same time avoid all personal liability bj' writing the name of his principal first, and writing his own name under it, with words preceding it express- ing the fact that he signs for another, as A B, by C D, his agent, or A B, per procuration C D. Edwards on Bills & Prom. Notes, 83 ; 1 Wait's Act. & Def. 238 ; 1 Wait's j:.aw & Pr. (5th ed.) 444, 447. 15. A principal gives to his agent full powers to manage his estate, real and personal, and authorizes him to do all lawful acts concerning his business and affairs, of what nature or kind soever, and, under this authority, the agent makes a promissory note in the name of his principal ; against whom only can such note be enforced f The note can be enforced against the agent only. A principal is bound by the acts of his agent only where the latter acts within the scope of his authority ; and the general words in the power of attorney conferred upon the agent only general power to carry into effect the special purposes for which the power was Negottable Pafeb. 183 •given, and do not confer authority to sign notes in the name of his principal ; and it is a general rule that, where an agent makes -a contract in the name of his principal, and the principal is not bound by it for want of authority in the agent to make the contract, the agent is personally liable on it. Edwards on Bills & Prom. Notes, 87, 90 ; 1 Wait's Act. & Def. 226. 16. Gan a person, who has been made a party to a negotiable note by the forgery of his signature, be held liable thereon? He cannot. Edwards on Bills & Prom. Notes, 94. 17. A member of a partnership makes a negotiable note, for the accommodation of a third party, without the knowledge or consent ■of Ms partners. The note is afterward transferred to one who has no knowledge of the circumstances under which it was executed ; can the other partners set up, as a defense to an action on the note, that it was made without authority and out of the usual course of business ? They cannot defeat a recovery by such a defense. Edwards on Bills & Prom. Notes, 106 ; 5 Wait's Act. & Def. 128. . 18. What would it be necessary for the holder to prove, in such a case, in order to recover? It would be necessary to establish the fact that he received the note bona fide, and for a valuable consideration. Edwards -on Bills & Prom. Notes, 106 ; 5 Wait's Act. & Def. 129. 19. What is the legal effect of a note made payable to the order of the maker, or to the order of a fictitious person, and afterward negotiated ? It is provided by statute that notes so made and negotiated •shall have the same effect and be of the same validity, as against the maker and all persons having knowledge of the facts, as ii: payable to bearer. Edwards on Bills & Prom. Notes, 129 ; 1 Wait's Law & Pr. 696. 20. In what manner must the payee of a note be designated in order to render it negotiable ? The usual mode of rendering a note transferable is by drawing it payable to a certain person, or order or bearer, or to i;he order of the drawer, or to bearer generally. Where a note 184 Negotiable Paper. is not made pa3'-able to any person by name, adding " or bearer'"^ or the words "or order," it must bear upon its-face termsof equivalent import in order to make it negotiable. Edwards on Bills & Prom. Notes, 165 ; 1 Wait's Law & Pr. 716. ■ 194 Negotiable Papek. sou there present, who must be then afforded an opportunity to make immediate payment. A demand by letter is insufficient. 1 Daniels on Neg, Inst. § 518 ; 1 Pars, on Bills & Notes, 371;. Chitty on BiUs (12th Am ed.) 415 ; 8 Wait's Act. & Def. 118, 119. 69. Is it necessary that notice of non-payment should he given to a person who has indorsed an absolute guaranty of payment on the hack of a negotiable note, in order to avoid discharging him from- liability as a guarantor ? It is not. The contracts entered into by the guarantor and the indorser of a negotiable note are wholly dissimilar. The^ contract by the guarantor is an unconditional undertaking that ■the note shall be paid, while the contract of an indorser is to pay the note after due demand and notice of non-payment. Edwards- on Bills & Prom. Notes, 630. Insubancb. 195 CHAPTER XIII INSURANCE. 1. Define insurance, and give a description of the terms em< •ployed in the contract. Insurance (also called assurance) is a contract whereby, for an agreed premium, one party undertakes to indemnify the other against loss on a specified subject by specified perils. The party agreeing to make the indemnity is usually called the insurer, or underwriter ; the othei', the insured or assured ; the agreed con- sideration, the premium ; the written contract, a policy ; the events insured against, risks or perils ; and the subject, right or interest to be protected, the insurable interest. Bouv. Diet. ; 1 Phillips on Ins., §§ 1-5 ; 4 Wait's Act. & Def. 13. 2. Is it essential, in a contract of this kind, that the insured party should have an insurable interest in the thing insured f It is, for otherwise the policy is a mere wager, and, as such, inValid. 4 Wait's Act. & Def. 22, 91 ; 8 id. 327. 3. What is the undertaking of the insurer in a contract of ma- rine insurance f \ By this contract the insurer undertakes, for a stipulated premium, to indemnify the insured against certain perils, or sea- risks, to which his ship, freight and cargo, or some of them, may be exposed on a certain voj^age, or during a fixed period of time — the property, the perils and the period of time all being de- fined, in part by the instrument of agreement, and in part by the law. 3 Kent's Com. 253 ; 2 Pars, on Cont. 350. 4. Is it necessary that the agreement to insure should he in writing ? ^ Though the agreement is usually in writing, it is not nec- •essary that it should be, unless the act of incorporation of the 196 . Insurance. . insurers requires it to be so. It may be oral only, or it may be made by an agreement to insure, entered and subscribed on the books of the insurers in any manner usual in that office. 2 Pars, on Cont. 350 ; 3 Kent's Com. 257, note 3 ; 4 Wait's Act. & Def. 15. 5. In what way is insurance generally effected in this country f During the colonial government of this country the busi- ness of insurance was almost entirely carried on by private in- dividuals, each taking singly for himself a risk to the amount of his subscription; but now the business is carried on almost ex- clusively by incorporated companies. 3 Kent's Com. 256, 257; 2 Pars, on Cont. 350. 6- What is the consideration for the promise of insurance ? The consideration is the premium paid by the insured ; and it is sufficient to bind both parties to the contract, if it be sub- scribed only by the insurers ; the insured, however, always hav- ing his option as to whether he will put his property under the risks insured against. 2 Pars, on Cont. 351. 7. Will any writing he assumed to constitute a part of the policy without being embodied in it ? Not unless referred to as such in the body of the instrument, or signed as such by the party upon whom it imposes an obhga- tion. Thus, a paper is not made a part of a policy by merely being folded up with it, or even wafered to it ; and things said or written by either party, or by both, while negotiating for the policy, whatever their importance, forms no part of the policy unless written therein or specifically referred to. 2 Pars, on Cont. 352. 8. May insurance be effected through an agent f Insurance may be and usually is effected through agents, but the agent must have full power to do so. This power may be expressly given, or may be derived from the circumstances of the case, or from usage ; but a mere general authority, though it be to act in relation to the ship or cargo, is not sufficient. 3 Kent's Com. 260 ; 2 Pars, on Cont. 352. 9. Suppose an agent effects an insurance for his principal ivithr Insubance. 197 mit his knowledge or authority, and the principal afterward adopts the act, is the insurer hound ? He is ; and the bringing of an action on the policy by such principal, in his own name, has been said to be sufficient ratifica- tion. 3 Kent's Com. 260 ; 2 Pars, on Cont. 353. 10. Who may be insured? All persons, whether aliens or natives, may be insured ; the onl}' prominent exception to the general rule being an insurance for the benefit of an alien enemy. Aliens who are not enemies may make contracts of insurance as fully, to all intents and pur- poses, as citizens or subjects of the country in which the policy is made. 2 Pars, on Cont. 360 ; 3 Kent's Com. 253. 11. What is the general rule as to the description of the insured property in the policy ? The property insured should be set forth in the policy with sufficiejit distinctness ; but, where there is no fraud or conceal- ment on the part of the insured, his interest, which he intended to bring within the terms of the policy, will be brought within it, even by a liberal construction ; and a mistake in the descrip- tion will seldom prevent this construction. 2 Pars, on Cont. 362. 12. -Zw a marine policy, is it necessary that the name of the party really interested as the insured should always appear on the face of the instrument ? Though some one must be named as the insured, it is not always the party really interested ; for the policy may be made for the benefit of A, or of whom it may concern, or may contain some indication of the interest of another party than the one named. 2 Pars, on Cont. 361 ; 1 Phillips on Ins., § 28. 13. if a certain ship he specified in a policy of insurance, may another ship he substituted during a voyage ? If the ship be specified in the policy, it becomes part of the contract, and no other ship can be substituted without necessity ; the cargo may, however, be shifted from one ship to another, if ,it be done from necessity, and the insurer of it will still be liable. 3 Kent's Com. 257. 198 Insurance. 14. G-ive the distinction between open policies and valued pol- icies? Where the value of the property insured, as agreed upon by both parties, is not stated in the policy, but must be proved by evidence after the loss occurs, such a policy is called an open policy. But, if the value of the insured property, as agreed upon by the parties, is stated in the policy, it is then called a valued policy. 2 Pars, on Cont. 368, 369 ; 3 Kent's Com. 273 ; 1 Pars, on Mar. Ins. 256 ; 1 Arnould on Mar. Ins. § 124. 15. What is meant hy a double insurance ? A double insurance, is where, by different policies, the same interest of the same parties in the same subject-matter is insured against the same risks ; and it is over-insurance if the whole amount insured by all the policies exceeds the whole value of the property insured. 2 Pars, on Cont. 371 ; 3 Kent's Com. 280. 16- What is the nature of the contract of re-insurance f After an insurance has been effected, the insurer may have the entire sum he has insured, re-insured to him by sorhe other insurer ; the object of which is to indemnify himself against his own act. If he gives a less premium for the reinsurance, all his gain is the difference between what he receives as a premium for the original insurance, and what he gives for the indemnity against his own policy. If he gives as much for re-insurance, he gains nothing by the transaction ; and if he gives a higher pre- mium, as insurers sometimes do, to cover a dangerous risk, he becomes a loser by his original insurance. 3 Kent's Com. 279; 2 Pars, on Cont. 373. 17. What a7-e the risks usually insured against in marine pol- icies ? As a general rule, the policy sweeps within its inclosure all the maritime perils that the thing insured can ineet with on the voyage, however strange or unexpected. This will include perils of the sea, fire, barratry, theft, robbery, piracy, capture, arrests and detentions. 3 Kent's Com. 291 ; 2 Pars, on Cont. 374. 18. Would the ignorance., inattention., or negligence of the mas- ter or mariners, be regarded as one of the perils of the sea? It would not, because those words apply only to all those . Insubance. 199 natural perils and operations of the elements which occur with- out the intervention of human agency, and which the prudence of man could not foresee, nor his strength resist. The impru- dence, or want of skill in the master, may have been unforeseen, but it is not a fortuitous event. 3 Kent's Com. 300. 19. Mention some of the ordinary risks of a voyage, for losses from which insurers will not be held liable ? Among these are damages resulting from the ordinary em- ployment of the ship, or the inherent infirmity of the article, as the loss of an anchor by the friction of the rocks, or the wear and tear of the equipment of the ship, or her destruction by worms, or the diminution of liquids by the ordinary leakage to which they are naturally subject. 3 Kent's Com. BOO ; 2 Pars, on Cont. 375. 20. Is damage done to a ship by rats one of the casualties com- prehended 'under perils of the sea? The question is not fully settled, but the better opinion seems to be, that the insurer is not liable for this sort of damage, because it arises from the negligence of the common carrier, and it may be prevented by due care, and is within the control of human prudence and sagacity. 3 Kent's Com. 301. 21- Suppose a ship insured against fire is burned purposely by the master as the only means of saving her from capture by a public ■ enemy, are the insurers liable? They are ; for it would be the duty of the master to the ■State to burn her under such circumstances, nor are the insurers damaged thereby if they insure against capture. If the ship be not insured against capture, it may be doubted whether the in- surers would be liable. 2 Pars, on Cont. 877. 22. If a vessel at sea is not heard from for a long time, what is the presumption of law as to its fate ? It is presumed to have perished by perils of the seas. By some policies it is provided that a vessel not heard from for a certain time shall be presumed to have been lost. In the ab- / sence of any provision of this sort, the length of time which will ' he the ground of this presumption will evidently depend upon 200 Insubance. the distance and particular circumstances. 1 Phillips' Ins., |- 1099 ; 2 Pars, on Cont. 376. 23. Under the clause for indemnity for loss hy ^'■pirates, rohhesr or rovers, and thieves," to what extent are the insurers liable ? They are liable for piracy and robbery, and plunder by force,, by persons not belonging to the vessel, or by the mariners be- longing to it, where it could not have been prevented by reason- able vigilance and precautions. 3 Kent's Com. 303 ; 1 Phillips' Ins., § 1106. 24. When does the risk commence, and when does it terminate in marine insurance ? The commencement and end of the risk depend upon the words of the policy. If the insurance is made " at and from " a certain place, the risk begins as soon as the vessel is at that place^. and continues while she is there, and also when she leaves that place. An insurance beginning " on " a certain day covers the- whole of that day; if it begins "from" a certain day, the word " from " has the effect of " after," and the day is excluded. In- surance "from" a place begins only when a vessel casts off her moorings, or weighs her anchor and moves, with the intention of sailing. 2 Pars, on Cont. 364 ; 3 Kent's Com. 307. 25. If the policy he to a country generally, as to Cuba, where- does the risk end? In such case the risk ends at the first port made for the pur- pose of unloading, after the vessel has been moored there in safety for twenty-four hours. If the vessel be ordered off or into quar- antine before the twenty-four hours have passed, the policy does not cease to attach ; but if she be safely moored, and continue safe through a storm or other peril, which begins either before or within the twenty-four hours, and is afterward lost through the same storm or peril, she is not lost within the policy. 3 Kent's- Com. 308 ; 2 Pars, on Cont. 367. 26. Where the insurance is on goods, what is the general ruler for determining when the policy attaches to them? As a general rule, where the insurance is on goods, the policy attaches when it would attach to the vessel carrying them, were she insured. 2 Pars, on Cont. 365. Insukaxce. 201 27. When does a ^^ port-risk " terminate ? When the vessel, being ready for sea, leaves her moorings and begins her voyage. 1 Pars. Mar. Ins. 358 ; 1 ArnouldMar. Ins. 443. 28. If the vessel departs voluntarily, and without necessity,, from the usual course of the voyage, what effect will it have upon the contract of insurance f It will have the effect to discharge the insurer from all liability for losses occurring subsequent to ^uch deviation ; for it is a variation of the risk, and the substitution of a new voyage. The meaning of the contract of insurance for the voyage is, that the voyage shall be performed with all safe, convenient and. practicable expedition, and in the regular and customary track. 3 Kent's Com. 312 ; 2 Pars, on Cont. 410. 29. What is to he understood hy a total loss within the meaning of the policy f A total loss may arise either by the total destruction of the- thing insured, or, if it specifically remains, by such damage to it as renders it of little or no value. A loss is said to be total if the voyage be entirely lost or defeated, or not worth pursuing,, and the projected adventure frustrated. 3 Kent's Cora. 318. 30. What is meant by a constructive total loss ? It is a constructive total loss if the thing insured, though existing in fact, is lost for any beneficial purpose to the owner ; and, in such cases, the insxu-ed may abandon all his interest in the subject insured, and all his hopes of recovery, to the insurer, and call upon him to pay as for a total loss. The object of th& provision is to enable the insured to be promptly reinstated in his capital. 3 Kent's Com. 318; 2 Pars, on Cont. 382, 383. 31. What constitutes a partial loss, within the meaning of the policy ? Every loss is a partial loss which is less than a total loss,, either actual or constructive. The phrase " particular average " ' is frequently used as the equivalent of partial loss. 2 Pars, on Cont. 393 ; 3 Kent's Com. 335. 202 Insurance. 32. What is meant hy the rule " one-third off new for- old" in marine insurance ? This rule owes its origin to American usage and law, and it means that the insurer shall pay for any partial loss on the ship two-thirds of the whole expense of making the repairs thoroughly and with new materials, and of course the owner pays or loses the remaining third. 2 Pars, on Cont. 393 ; 2 Phillips on Ins., § 1431. 33. Mas the above rule any application to a partial loss on goods ? It has not ; and where there is a partial loss of goods the insurer pays what the goods have lost from their original invoice Talue, so that he neither loses nor gains by a rising or a falling market. 2 Pars, on Cont. 395 ; 2 Phillips on Ins., § 1456. 34. If the vessel insured should not he seaworthy, will thepoliey -attach ? It will not, because seaworthiness is a condition precedent. 2 Pars, on Cont. 408 ; 1 Phillips on Ins., § 696 ; 1 Arnould on Ins. 652, 667. 35. What does the implied warranty of the seaworthiness of an insured vessel include ? The insured is understood impliedly to warrant that the materials of which the ship is made, its construction, the quaU- ficatioris of the captain, the number and description of the crew, the tackle, the sails and rigging, stores, equipment and outfit generally, are such as to render it in every respect fit for the proposed voyage or service. 1 Phillips on Ins., § 695 ; 2 Pars, on Cont. 406. 36. Does the warranty extend to defects of the vessel, unknown to the assured ? It does, even to those which could not have been known, no less than tliose known to him. 1 Phillips on Ins., § 697. 37. How may this implied obligation be modified f As in the case of any other implied obligation, it may be modified, enlarged or superseded by express agreement, 1 Phil- lips on Ins., § 698. Insurance. 203 38. If a vessel, shortly after sailing, without encountering any ■^eril or storm, becomes leaky, or unfit to perform the voyage, or sinks, can the insured recover on policy of insurance without proof ■that the vessel was in fact seaworthy ? He cannot. To entitle a plaintiff to recover on a policy of marine insurance he must allege and prove seaworthiness, and the facts stated as to the manner in which the loss occurred fur- nish presumptive evidence of unseaworthiness. 2 Arnould on Ins. 134, 135. 39. What losses are contracts of fire insurance intended to in- -demnify against ? Such contracts are most frequently entered into for indem- nity against loss by fire of dwelling houses, but they are also often intended to insure against loss by fire of ships in port, of "warehouses and mercantile property stored in them, of personal ■chattels in stores or factories, of merchandise, furniture, books -and plate, pictures, or live stock. 2 Pars, on Cont. 418 ; 2 Kent's -Com. 370. 40. How are contracts of fire insurance made ? They are made by companies incorporated for that purpose, and these may be stock companies or mutual companies, or both. ,2 Pars, on Cont. 418. 41. What security does each of these companies respectively offer for the payment of losses to the insured ? The stock company offers, as a security for the payment of losses, the whole amount of its stock and also the proceeds of its business. Mutual companies offer as security the amount of their premiums, or, in other words, the whole amount of all the notes given by the insured. 2 Pars, on Cont. 419. 42. When does the risk commence, in a contract of fire insur- ance ? The risk commences when the offer to insure has been ac- ■cepted, and the applicant has complied with all the conditions imposed, although the policy has not been issued. 2 Wait's Law ■& Pr., (5th ed.) 193 ; 2 Pars, on Cont. 420 c. 43. Is an application for fire insurance apart of the policy ? It is not, unless there is some reference to it in the policy -.showing that the parties understood and accepted it as such. 2 Wait's Law & Pr. (5th ed.) 195. 204 Instjeance. 44. What is the effect of a stipulation in a policy that any mis- representation whatever, whether in the written application or other- wise shall render it void. Such stipulation puts every representation on the same foot- ing as a warranty, and renders the policy yoid in case there is any misrepresentation, whether material or otherwise. 2 Wait's- Law & Pr. (5th ed.) 195 ; 8 Wait's Act. & Def. 331 ; May on Ins. 104, § 195. 45. What is the effect of a misrepresentation hy the insureds where the policy does not contain a provision avoiding it for mis- representation ? An immaterial misrepresentation, unless in reply to a speci- fic inquiry, or made with a fraudulent intent, and influencing the other party, will not impair the contract. But if the representa- tion induces the insurer to enter into a contract which he would otherwise have declined, or to take less premium than he would have demanded had he known the representation to be untrue, or, in other words, if the representation is false and material to the risk, the contract is thereby avoided whether the representa- tion was made through mistake, inadvertence, or with fraudulent intent. 2 Pars, on Cont. 423 ; 3 Kent's Com. 373 ; 2 Wait's Law & Pr. (5th ed.) 195; 4 Wait's Act. & Def. 39-42; 8 Id. 330, 332. 46. Is the materiality of the representation to he determinedly the court or hy the jury f If any doubt exists as to the materiality of thp representa- tions it is a question of fact for a jury ; but when the fact as to the materiality is not in dispute the question is for the court. 4 Wait's Act. & Def. 40 ; Wood on Fire Ins. § 177. 47. In consideration of the payment of a gross sum as premiim, an insurance company insured a person against loss or damage % f,re to the amount of $1500, as follows : 1700 on his dwelling homey and 1800 on the furniture therein. The policy contained a stipu- lation that it should be void in case of any false statement in the application for insurance. The application stated that the insured was the owner of the real estate, which statement was untrue. The Insukancb. / 205 house and contents were destroyed lyfire. Oan the insured recover en the policy, ? The misrepresentation as to ownership will defeat a recovery of the insurance on the dwelling, but, as the contract is severable, will not defeat a recovery of the insurance on the personal prop- erty if the representation was made in good faith and under a' mistake of fact. 8 Wait's Act. & Def. 332 ; 2 Wait's Law & Pr. (5th ed.) 197. 48. Where the policy describes the insured as engaged in a cer- tain trade or business, and, for the purpose of carrying on his •business, the insured keeps and uses extra hazardous articles, will the contract of insurance be thereby affected ? It will not ; for, under such a policy, the insured is per- mitted by implication of law to keep and use all articles neces- sary for the customary carrying on of such trade or business, although such goods are classed as extra hazardous. 2 Pars, on Cont. 424 ; 2 Wait's Law & Pr. (5th ed.) 197. 49. Will alterations made in the insured property have the effect to discharge the insurers f As a general rule mere alterations, although important and ■extensive, do not of themselves discharge the insurers. But, if ■expressly prohibited, they would have this effect, because they would then be a breach of warranty ; and so, they would have this effect, although not expressly prohibited, if they materially increased the risk. 2 Pars, on Cont. 428. 50. May a party to an insurance contract make proper or neces- sary repairs to the insured property without affecting his policy ? He may, in the absence of any stipulation to the contrary ; for every insurer against fire takes the risk incident to making necessary repairs to the insured property. It is safest, however, ^Tvhen important repairs are contemplated, to give notice to the insurance company of such intention. 2 Pars, on Cont. 429. 51. What effect will concealment or a suppression of the truth have upon a policy of insurance ? It will have the same effect as an expression of what is false, that is, it will render the policy void. The insured is 206- Insukance. bound to state all that he knows himself, and all that it imports- the insurer to know, in order that the latter may accurately esti-' mate the risk he assumes. 2 Pars, on Cont. 435. 53. What is meant by an insurable interest? Any interest which would be recognized by a court of law or equity is an insurable interest ; but this does not include a, mere expectancy or probable interest, however well grounded it may be. Thus, one who has orally agreed to purchase a. building cannot insure that building ; but if the agreement could be enforced in equity, either because it was in writing, or br leason of part performance, the purchaser would then have an. insurable interest. 2 Pars, on Cont. 438 ; 3 Kent's Com. 371 ; 4 Wait's Act. & Def. 22 ; 8 id. 327 ; 2 Wait's Law & Pr. (5tk ed.) 191. 53. Suppose that one man erects a house upon the land of an- other with the owner'' s consent, does he have an insurable interest, in the house he thus erects? He has ; but the rule is otherwise if he erects a house with- out license or shadow of title. 2 Pars, on Cont. 438 h. 54. Does the mortgagor have an insurable interest in his mort- gaged property ? He has ; and this interest is not divested by the possession of the mortgagee, nor by the seizure of his property or even by its sale on execution, provided he still retains the power of redeeming it. In case of loss the insurers are responsible for the whole value of the property insured, to the extent of their insurance. 2 Pars, on Cont. 439; 2 Wait's Law & Pr. (5tk ed.) 191, 192 ; 4 Wait's Act. & Def. 24. 55. ITas a mortgagee also an insurable interest in the mortgaged property ? He has ; and a mortgagor and mortgagee may severally insure^ the same property, each calling it his own property, and neither specifying his interest. 2 Pars, on Cont. 439 ; 3 Kent's Com.. 871 ; 4 Wait's Act. & Def. 24. 56. Has a sheriff or a constable an insurable interest in per' Insukanck. ' 207 «onal property taken hy virtue of an attachment or other legal process ? He has, because he has a special property therein, wliich is sufficient to give an insurable interest. And so a deputy sheriff, as such, is authorized, without a special power for that purpose,, to insure such property in the name and on behalf of his prin- cipal. 2 Wait's Law & Pr. 192 ; 1 Pars, on Cont. 443. 57. If, at the time of the insurance, the insured property- is exposed to a near and dangerous fire, will the policy attach ? In such case the policy fails to attach, and for this reason r that the contract of insurance is founded on the assumption that, when the policy attaches, the property is not exposed to an extraordinary peril. 2 Pars, on Cont. 444. 58. -Zf a house should be destroyed by lightning, but without' ignition, would the insurers against fire be liable under a fire in- surable policy ? They would not, because fire policies insure against noth- ing but fire ; and although a house is frequently burned by being struck by lightning, yet lightning is not fire, and where, it injures, but without ignition, the insurers against fire will not be liable. 2 Pars, on Cont. 446 ; 2 Wait's Law & Pr. (5th ed.> 206 ; 4 Wait's Act. & Def. 68. 59. Are insurers against fire liable on a policy for a loss caused' by the explosion of gunpowder ? They are, and the same rule would be applicable if the- explosion were caused by the burning of saltpetre or any- other combustible substance. On the other hand, the explo- sion of a steam boiler is not a loss by fire. The reason of the. distinction is, that gunpowder explodes by combustion, and steam by expansion without combustion. 2 Pars, on Cont. 446 j 4 Wait's Act. & Def. 69. 60. Are insurers against fire liable for injury caused by the- water used to extinguish the fire, or for the loss caused by the blow- ing up of buildings to arrest the progress of a fire ? They are; for although the universal rule of contracts,, causa proxima non remota spectatur, applies also to insurance against fire, yet both law and usage give a very liberal construe- "208 Insukance. tion to it in favor of the assured under fire policies. Thus, ■where a house already on fire was blown up by gunpowder, and the policy provided that the insurers should not be liable for a Joss from the explosion of gunpowder, they were nevertheless held liable, because this clause was construed to mean, "fire orig- inating from an explosion of gunpowder." 2 Pars, on Cent. 448 ; G-reenwald v. Ins. Co., 7 Am. Law Reg. 282 ; 4 Wait's Act. & Def. 67, 69 ; 8 id. 349 ; 2 Wait's Law & Pr. (5th ed.) 206. 61. Will negligence on the part of the insured, or persons em- ployed by him, constitute any ground of defense in an action on a fire policy ? The great majority of fires are caused by the negligence of somebody, and it is to guard against this very risk that fire poli- ■cies are made ; hence the simple fact of negligence on the part of the insured, or his servants, has never been held to constitute a ■defense. 2 Pars, on Gout. 449; 3 Kent's Com. 374, note; 2 Wait's Law & Pr. (5th ed.) 4 Wait's Act. & Def. 68. * 62. If, 'previous to a loss, the insured alienates the whole or a jpart of his interest in the property ; has he a claim for any loss? Policies against fire are contracts only between the insured and the insurer, and do not pass to any other party without the consent of the insurers. Hence, if the insured alienates the whole of his interest in the property, he loses nothing by the fire, and can have no claim for any loss ; but if he alienates only a part, his claim is in proportion to the interest he retains. 2 Pars, on Cont. 450 ; 3 Kent's Com. 375. 63. Is the right of the insured to indemnity in case of a loss os- ngnable ? It is ; and an assignee for value may enforce his claim against the insurers. A mere assignment or transfer of the premises after a loss does not of itself, however, transfer the right of in- demnity for the previous loss, unless the contract shows this to have been the intention of the parties. 2 Pars, on Cont. 460. 64. Is it essential to the validity of a contract of insurance, that the person to he insured thereby should he named in the policy ? It is not ; and, in case of doubt, extrinsic evidence may be resorted to, to ascertain the meaning of the contract. And, when Insubance. 209 "thus ascertained, it will be ield to apply to the interests intended to be covered bj it ; and they will be deemed to be comprehend- ed within it who were in the minds of the parties when the con- tract was made. 4 Wait's Act. & Def. 83. i 65. May agents^ commission merchants or others, having the custody of, and being responsible for property, insure such property in their own names ? They may do so, and recover of the insurer not only a sum ■equal to their own interest in the property, by reason of any lien for advances or charges, but the full amount named in the policy, up to the value of the property. 2 Wait's Law & Pr. .6th ed.) 192; 3 Kent's Com. 371. 66. Is a contract for insurance made by parol valid in this ■State ? Though there was at one time a doubt on this point, it is now well settled that a good agreement for insurance may be made by parol in this State. 2 Wait's Law & Pr. (5th ed.) 3 94. 67. What is the rule of law as to the construction of a contract of insurance, in case of ambiguity in the terms? This contract, like any other agreement, is to be inter- ' preted and enforced, with a view to substantial justice. If there is a discrepancy or a repugnancy between the written and the printed portion of the policy, the written portion will prevail over the printed part ; and, like other contracts, it is to be con- strued so as to give it effect rather than make it void. 4 Wait's Act. & Def. 19-22. 68. Where the policy requires that the insured shall give notice to the insurer of any subsequent insurance upon the same property •what will be the effect of a non-compliance with the condition ? The effect in such case will be to render the policy void from the time of making such subsequent insurance ; and actual notice of such subsequent insurance to an ordinary insurance agent of the insurer will not be a sufficient compliance with the condition. 2 Pars, on Cont. 457 ; 4 Wait's Act. & Def. 57-61. 69. If the application for insurance should be drawn, and the measurements and survey be made by a duly authorized agent of the insurers, and the applicant for insurance should do nothing 14 210 Insubance. hut sign such application, without even examining its correctness^, would he be bound by the statements therein contained ? He would not ; and the insurers would be estopped from, controverting the truth of such statements. 2 Wait's Law & Pr. 200. 70. Suppose the applicant employs an agent of the insurer to draw up his application for insurance, will the applicant he hound by the erroneous statements inserted by such agent in the applicor- tion ? He will, even though the erroneous statements are inserted without the knowledge of the applicant. 2 Wait's Law & Pr. 200. 7 1 . May a person act in the capacity of agent for both parties. to an insurance contract? He may not. 4 Wait's Act. & Def. 33, 72. What is the nature of the contract of life insurance? The purpose of this contract is to provide a fund for credit- ors, or for family connections in case of death, and it is made by a policy similar in many respects to other policies. The insurer,, in consideration of a sum in gross, or of periodical payments,, undertakes to pay a certain sum, or an annuity, depending upon the death of the person whose life is insured. The insurance is either for the whole term of life or for a limited period. 3 Kent's Com. 363 ; 2 Pars, on Cont. 464 ; 4 Wait's Act. & Def. 90. 73. How is the application for life insurance made ? Application is made as in fire policies, by a written docu- ment, in which many questions are put, all of which 'must be answered. These answers are in general made so far a part of the contract as to be, in law, warranties ; but they may be made, according to the form of the answer, warranties of fact or war- ranties of the belief of the applicant. 2 Pars, on Cont. 465 ; ^ Kent's Com. 370. 74. What effect does the want of good faith in the answers or the concealment or suppression of material facts have upon a life insurance policy ? It will have the effect of rendering it void, for the same good! Insurance. 211 faitii is as requisite in this as in all other policies ; and whether the suppression arises from fraud or accident is quite immaterial, 'if the fact be material to the risk, and this is a question for a jury. .3 Kent's Com. 369; 2 Pars, on Cont. 465 ; 4 Wait's Act. & Def. 93-97. 75. What is the rule of construction of contracts of life insur- ance ? The stipulations and conditions in the contract are to be construed and enforced like all other contracts according to the expressed understanding and intent of the parties. Where the language of the contract is plain and unambiguous, there is nothing to construe. The words of promise are to be taken most strongly against the promisor, and the representation upon which the promise is founded is to be taken the most strongly against the promisee. May on Ins., §§ 172, 175 ; 8 Wait's Act & Def. 354, 855. 76. -Zw a warranty, that the person whose life is insured is in. good health, what degree of health is required, in order to make the policy attach f In such warranty, by good health must be understood that which would ordinarily and reasonably be regarded as good health. It does not mean perfect and absolute health, for the seeds of death are in every human constitution, and it is only requisite that there be not, at the time, any existing disorder tending to shorten life. 3 Kent's Com. 370 ; 2 Pars, on Cont. 466 ; 4 Wait's Act. & Def. 97 ; 8 id. 856. 77. Does the warranty of good health have application to the mind as well as the body ? It does ; and if insanity be known and concealed the policy will be avoided. 2 Pars, on Cont. 466. 78. If an insurance policy clearly makes the observance of an apparently immaterial requirement the condition of a valid contract, and such requirement is not observed, can there be a recovery upon the contract ? < There cannot be a recovery, as neither courts nor jurors can disregard the condition. 8 Wait's Act. & Def. 354. 212 Insueajtcb. 79. What is the general rule as to the construction of restrietiom or limitations as to place, imposed upon the insured by the terms of a life policy ? The language employed in expressing these limitations will be liberally construed ; but positive departure from a precisely stated limitation has been held to avoid the policy, although an exact compliance with it was impossible, and the departure from it rather lessened than increased the risk. 2 Pars, on Cont. 473. 80- Would the death of the insured hy the hands of justice avoid a life policy ? It has been held that the life insurance in such case would be avoided upon the general policy of the law even without the insertion of such an exception in the policy ; but this exception is now made in nearly aU policies, and it is also usual to insert exceptions as to war risks, suicide, or death in a duel. 3 Kent's Com. 369 ; 2 Pars, on Cont. 475. 81. Will an exception in a policy, as to suicide, discharge the insurers from liability where death is self inflicted in a paroxysm of insanity f If the exception expressly included suicide under insanity the policy in such case would doubtless be avoided ; but in the absence of an exception including suicide under insanity, and applying the general principles of insurance to the construction of the policy it would hardly be sufficient to render it void, that death was self-inflicted, if without the concurrence or action of a responsible mind or will. 3 Kent's Com. 369, note 6 ; 2 Pars, on Cont. 476 ; 4 Wait's Act. & Def. 100 ; 8 id. 359, 360. 82. What interest is insurable in life insurance contracts? In this contract, as in other policies, any legal or equitable interest may be insured ; but it is a general rule that the party insuring must have an interest in the life insured, and wherever there is a positive and real dependence of one person upon an- other, the persoii so dependent has an insurable interest in the the life of the other. Each person has an insurable interest in his own life ; a wife in the life of her husband ; a person in the life of his partner ; a creditor in his debtor's life, or a father in life of his minor child. 3 Kent's Com. 366 ; 2 Pars, ou Cont. 479 ; 4 Wait's Act. & Def. 91, 92; 8 id. 350. Insubancb. 21& 83- Are life policies assignable ? They are. and are frequently made for the purpose of as- signment, in order that the insured may tliereby be enabled to give security to his creditors ; and on the death of the insured the assignee recovers the whole amount insured, and not merely the consideration for the assignment. 3 Kent's Com. 368 ; 2 Pars, on Cont. 481. 84. How are such assignments usually made ? They are usually made in accordance with certain rules and provisions respecting assignment contained in the policies, which are binding on the parties to the contract ; but a mere de- livery and deposit of the policy for the purpose of an assignment would operate as such without any writing. 2 Pars, on Cont. 482 ; 3 Kent's Com. 368, note 3. 85. Can there he a valid assignment of a policy of life insurance to a person who has no interest in the life insured ? There can, if the policy contains no provision restricting its transfer to persons interested in the life insured. 8 Wait's Act. & Def. 352. 86. In what manner may a policy of insurance upon the life of a husband, for the use and benefit of his wife, he assigned ? It may be assigned by the wife with the written consent of her husband, or in case of her death, by her legal representatives, with the written consent of her husband. Laws of 1879, ch. 248; 8 Wait's Act. & Def. 353, 354. 87. Will the law protect an assignee against acts of the insured which would have discharged the insurers had the policy remained in the hands of the insured f If the policy contains an express provision to that effect, the assignee will be protected ; but, in the absence of such pro- vision, it has been held that, whatever would be a forfeiture of the policy if it remained in the hands of the insured, would oper- ate equally after the assignment. 2 Pars, on Cont. 482. 88. At what time does a life insurance policy attach or termi- nate ? All life policies are of course terminated by the death of the 214 Insubancb. insured ; but the burden of proof is necessarily upon the repre- sentatives of the insured, to show that the death occurred within the policy. There is a presumption of death if a party has been absent seven years without having been heard from, but there is no legal presumption as to the time of his death. 3 Kent's Com. 370; 2 Pars, on Cont. 484. 89. Suppose the insurers have a certain usage as regards the proof of death, what is necessary in order that such usage may be binding f It is necessary that the usage was known to the insured, and by-laws respecting it can have no effect unless they form a part of the policy ; and, although a policy requires such proof of death as the insurers may demand, reasonable proof only can be required. 3 Kent's Cora, 370, note 1 ; 2 Pars, on Cont. 485. 90. Mow are payments on premiums usually made in life insur- ance policies ? If the insurance be for a year or less, the premium is usually paid in money, or by a note at once. If for more than a year, it is usually payable annually; and it is common to permit the annual payment to be made quarterly, with interest from the day when the annual premium became due. Unpaid premiums in any case, whether notes had been given or not, would be de- ducted from a loss. 2 Pars, on Cont. 486. 91. If the policy provides that the risk shall terminate in case the premium charged shall not be paid in advance on or before the day at noon on which the same shall become due and payable, and the day of payment falls on Sunday, when is the premium payable f In this case the premium is not payable untU Monday, even though the assured should die on Sunday afternoon. 2 Pars, on Cont. 487. 92. What effect will negligence in ' the payment of a premium when due have upon the policy f In many cases such negligence would a,void the policy; hence the utmost care is always requisite on the part of the in- sured to pay his premium when it is due. Sometimes insurers accept and treat as a regular payment a premium offered to Insurance. 215 them a few days after it fell due, if they are satisfied that no ■change in the risk has occurred in the mean time, but this they -are not bound to do. It is always an indulgence, and ought not to be acted on as a probability, because it is never a right. 2 Pars, on Cont. 488. 316 WilM. CHAPTER XIV. WILLS. 1. Whatis a will? A will is the legal declaration of a man's intentions, whiclt he directs to be performed after his death. Wills are technically divided into devises and testaments. A devise is applied to the disposal of real estate ; a testament to the disposal of personal estate ; but, in common parlance, a testamentary disposition of either real or personal property, or of both, is denominated a " last will and testament." 2 Bl. Com. 499, 500 ; Willard on Ex. & Surr. 56 ; 4 Kent's Com. 501. 3. What is a codicil ? A codicil is a supplement to a will, or an addition made by the testator, and annexed thereto, and to be taken as a part of a testament, being for its explanation, or alteration, or to make some additions to, or subtraction from,, the former disposition of the testator. 2 Bl. Com. 500 ; Willard on Ex. & Surr. 58 ; 4 Kent's Com. 531 ; Redf. Surr. Pr. 22T. 3. What is an unwritten will called, and when are such wills valid ? Unwritten wills are known in law as nuncupative wills ; and such wills are valid only when made by a soldier while in actual military service, or by a mariner while at sea. Willard on Ex.. & Surr. 64; 4 Kent's Com. 517. 4. At what age may a will of real or personal estate he made f No person in this State can make a valid will as to real estate who is under the age of twenty-one years ; but males at eighteen, and females at sixteen, years of age may make a valid will as to personal estate. Willard on Ex. & Surr. 67; 4 Kent's- Com. 506 ; Redf. Surr. Pr. (3d ed.) 177. Wills. 217^ 5. State generally who may dispose of real estate hy will? Any adult person of sound mind may dispose of real estate- by will. Willard on Ex. & Surr. 65, 94 ; 4 Kent's Com. 505 ; Willard on Real Estate, 472, 474. 6. In what respect does the law discriminate between the testa- mentary capacity requisite to make a valid will of real estate and a valid will of personal property f Only in respect to the age of the party making such wills. Willard on Ex. & Surr. 65 ; Willard on Eeal Estate, 481. 7. When is a person, within the intent and meaning of the statute of wills, of sound mind and memory, and competent to devise by will ? When he has sufficient capacity to comprehend perfectly, 1. The condition of his property ; 2. His relations to the persona who are or should be the objects of his bounty ; and 3. The scope and bearing of the provisions of his will ; 4. He must have mem- ory sufficient to enable him to collect in his mind, without prompting, the particulars of the business to be transacted, and to hold them there long enough to perceive their relation to each other, and be able to form some rational judgment in relation to. them. Von Gruy sling v. Van Kuren, 35 N. Y. 70 ; Watson v. Donnelly, 28 Barb. 653. Redf. Surr. Pr. (3d ed.) 178. 8. Can a person who is deaf, dumb or blind make a valid will? He can, if he has the power of communicating with others, and is not otherwise under a disability. Willard on Ex. & Surr. 69. 9. What provision is made by statute in respect to the mode of subscribing wills of persons who cannot write their own names ? The Revised Statutes provide that where a person cannot write his own name, and his signature is subscribed by another person, that person must also write his name to the will as a witness, under the penalty of $50 ; but that his omission to do so will not invalidate the will. This provision of the statute gives an implied authority to a party to make a will who is un-^ able to subscribe his own name, notwithstanding the requirement of statute that the will shall be subscribed by the testator at th& 218 Wills. «nd of the will. Willard on Ex. & Surr. 71, 100 ; "Willard oii Real Estate, 484; 3 R. S. (Tth ed.) 2286, § 41. 10. Is a will made hy a lunatic during a lucid interval valid? Yes. Willard on Ex. & Surr. 75. 11. What is the presumption of law as to the sanity of a testator at the time of making his will ? The law presumes the testator sane until the contrary ap- pears, and the burden of proof, as to his mental capacity, lies on the party alleging insanity ; but when the fact of habitual de- rangement is once established, it lies upon those claiming under the will to prove that, at the time of its making, the testator had a lucid interval and was restored to reason. Willard on Ex. & Surr. 74. 12. Will the fact that a testator is a morwmaniac, or insane on one subject only, he sufficient to invalidate a will made hy him f It will, if the testamentary act can be traced to, and is the result of, some morbid delusion which constitutes such partial insanity, even if, at the time of making the will, the testator was sane in other respects upon ordinary subjects. Willard on Ex. . A Surr. 80. 13. Oan a hahitual drunkard, or a person under the infliience of intoxicating liquors, make a valid will f A habitual drunkard, while subject to a commission, if of sufficient mental capacity, may make a valid will. The existence of the commission is only prima facie evidence of incapacity, and may be rebutted by proof. Neither habitual intoxication, nor the actual stimulus of intoxicating liquors at the time of executing a will, incapacitates the testator, unless the excitement be such as to disorder his faculties and pervert his judgment. Lewis v. Jones, 50 Barb. 645 ; Peck v. Oary, 27 N. Y. 9. See Willard on Ex. & Surr. 88. 14. Will extreme old age of itself render a person incapable of making a valid will ? It will not. The law looks only to the competency of the understanding, and not to age or bodily infirmities. Willard ou Ex. & Surr. 85. Wills. 219 15. When may and when may not the will itself he considered, for the purpose of determining the mental capacity of the testator ? When the will of a lunatic has been drawn by himself, with- ■out assistance, the manner in which it is drawn and the disposi- tiion made of the testator's estate may be considered in deter- mining the fact of a lucid interval at the time of its execution, •and so far becomes evidence of the capacity of the testator. But if the testator is neither an idiot nor a lunatic, the only question is, had he the capacity to make a will, not had he capacity to make ■the will produced. If the testator was compos mentis, he could make any will, however complicated ; but if non compos mentis, he could make no will, however simple. Willard on Ex. & Surr. 79 ; Delafield v. Parish, 25 N. Y. 9. 16. What is the rule as to the validity of wills executed under A will so executed is absolutely void. Willard on Ex. & Surr. 89. 17- What degree of fraud, in obtaining the execution of a will, will render it void ? Any undue advantage taken of the testator, by which he is induced to make a will which he otherwise would not have made, Tfitiates the will. Willard on Ex. & Surr. 90. 18. What degree of importunity will vitiate a will? It must be a degree of importunity that the testator was too "weak to resist, and which so far destroyed his free agency as to Tender the execution of the will no longer his act. Willard on Ex. & Surr. 91 ; Redf. Surr. Pr. 182. 19. If a person, hy continued acts of kindness and affection, ■■acquires such an influence over another that the latter voluntarily, -or at the mere request of the former, wills him all his property, 'to the exclusion of all other persons who might reasonably expect to have been made legatees, will this influence be such as to inval- idate the will It will not. Influence arising from attachment and affection is not that undue influence which will invalidate a will ; neither is the mere desire to gratify the expressed wishes of another evidence of such influence or of importunity. The influence 220 Wills. necessary to invalidate a will must be such as arises from threats, force or coercion, destroying free agency, and the favors received under the will must have been obtained by such coercion, or bv importunity that could not be resisted, and which produced com- pliance for the sake of peace. Willard on Ex. & Surr. 92; Red'f. Surr. Pr. (3d. ed.) 180. 30- What power was conferred upon married woman by the act of 1849, in respect to the disposal of her property by willf The act of 1849 removed the disability that attended mar- ried women at common-law and under the Revised Statutes in respect to the power of disposing of her propert}' by will, by en- acting that any married female might take by inheritance, or by gift, grant, devise or bequest from any person other than her husband, and hold to her separate use, and convey and devise real and personal property in the same manner and with like effect as if she were unmarried. Willard on Ex. & Surr. 94. 21. What is a hologragh? A holograph is a testament written wholly by the testator., Willard on Ex. & Surr. 70. 22. What are the four statutary requisites to the valid execu- tion of a will ? 1. That it be subscribed by the testator at the end of the- will ; 2. That such subscription be made by the testator in the presence of each of the attesting witnesses, or shall be acknowl- edged by him to have been so made to each of the attesting witnesses ; 3. That the testator, at the time of making such subscription, or at the time of acknowledging the same, shall de- clare the instrument so subscribed to be his last will and testament ; and, 4. That there shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will at the request of the testator. Willard on Ex. & Surr. 98 x Willard on Real Estate, 482 ; Redf. Surr. Pr. 161-173. 23. Is it necessary to the validity of a will that the testator should sign the will with his own hand, or may it be subscribed by another at his request ? If a will is subscribed by another at the request of th& testator, it will be a sufficient compliance with the statute, if Wills. 221 irom any reason the testator is unable to write iis own name. Mohins v. Coryell, 27 Barb. 556 ; Willard on Ex. & Surr. 100 ; Willard on Keal Estate, 484 ; Redf. Surr. Pr. 163. 24. Does the statute imperatively require that the subscription of the testator shall he made in the presence of each attesting ^tness ? It does not. It is a sufficient compliance with the statute if the testator shall acknowledge to each witness that the /sub- scription was made by him. Nor is it necessary that the tes- tator shall exhibit his subscription to the will at the time of snaking the acknowledgment of the execution. Willis v. Mott, M N. Y. 486 ; Redf. Surr. Pr. (3d ed.) 164. 25. What do you understand hy the " publication " of a will? Publication is the declaration by the testator in the pres- ence of the attesting witnesses that the instrument subscribed by him is his last will and testament. It is an act independent ■of the acknowledgment by the testator that the subscription to the will is his signature. Bashin v. Baskin, 36 N. Y. 416 ; Willard on Ex. & Surr. 100, 102; Willard on Real Estate 486 ; Redf. Surr. Pr. 165, 166. 26. Is it necessary that the publication of a will should be in ■any set form of words, in order to render the execution valid? It is not. Unlimited latitude of expression is allowed in the publication of a will, if it conveys the proper meaning. The expression may be made orally, in writing, or by signs, provided the general sense and design of the statute is complied with. But the witnesses must both understand, from some unequivocal act of saying of the testator to them, that the instrument is his :will. Eunn v. Case, 5 N. Y. Surr. (1 Redf.) 307 ; Van Hooser T. Van Hooser, id. 365 ; Willard on Ex. & Surr. 103. 27. What will be the effect of an omission, on the part of the subscribing witnesses, to write opposite to their names their re- rSpective places of residence as required by statute ? It will have no effect on the validity of the attestation, bii t Avill subject the witnesses to a penalty of $50. Willard on Ex. ■& Surr. 104 ; Willard on Real Estate, 488. 222 Wills. 28. Is it necessary to the due attestation of a will that the: witnesses should subscribe it in the presence of each other f It is not. It is sufficient that eacli witness subscribe at tha- the request of the testator, and in his presence, although sever- ally and apart from each other. Soysradt v. Kingman, 22 N. Y. 872 ; Willard on Real Estate, 489. 29. Is the signature of the witnesses following the attestation clause only a compliance with the statutory requirement tliat the witnesses subscribe at the end of the will ? It is. Redf. Surr. Pr. (3d. ed) 170. 30. In case a witness cannot write his own name, how may m will be attested by him f He may make his mark, and this will be a sufficient signing;^- of his name within the statute relating to the execution of wills.. Morris v. Kniffin, 37 Barb. 336 ; Willard on Ex. & Surr. 105 j. Willard on Real Estate, 489 ; Redf. Surr. Pr. (3d. ed.) 169. 3 1 . What is essential as to the form of the request of the testa- tor that the witnesses sign the will f It is only essential that the testator shall, by any act or words, clearly evince a desire that the witnesses shall sign the will as witnesses. Coffin v. Coffin, 23 N. Y. 9 ; Willard on Ex. & Surr. 106 ; Willard on Real Estate, 490. 32. State the substance of the attestation clause usually inserted^ in a will. The attestation clause is a formal statement signed by the- witnesses, to the effect that the testator subscribed his name to- the instrument in their presence, and at the same time declared in their presence that the same was his last will and testament,, and requested each of them to sign their names thereto as wit- nesses to its execution, and that they have so done in the pres- ence of the testator, and of each other upon the day of the date of the will. Willard on Ex. & Surr. 108, 474. 33. What advantages arise from the introduction of an attestor- tlon clause in a will? In case of the death of the witnesses, or their failure of memory, the clause will furnish presumptive evidence that all Wills. 22^ the requisite formalities were complied with ; and it will also show that the person who drew the will knew what formalities were requisite to its valid execution, and will tend to raise the presumption that he gave to the testator the necessary informa- tion in respect thereto. Willard on Ex. & Surr. 108, 109. See Feck V. Gary, 27 N. Y. 9 ; 25 How. 590 ; Eunn v. Case, 1 Redf. 307. 34. Oan a person named as a devisee or legatee in a will he a competent witness of its execution ? He can, and can be compelled to testify respecting the exe- cution of the will in the same manner as if he had not been so named therein. Willard on Ex. & Surr. 110. 35. What will he the effect of the attestation of a will hy a witness named therein as a legatee ? If the will cannot be proved without the testimony of such .witness it will be void so far only as concerns such witness or those claiming under him. But the witness will be still entitled to receive so much of the testator's estate (but not to exceed the value of the legacy) as would have descended to him in case the will was not established. But if the will can be proved without the testimony of such -witness, the legacy will not be void even though the legatee be examined as a witness. Willard on Ex. & Surr. 110 ; Redf. Surr. Pr. 208, 209. 36. Do the general provisions of the Code of Civil Procedure in respect to the competency of witnesses apply to proceedings in Surrogate's Courts? They do. Redf. Surr. Pr. (3d ed.) 108. 37. Is it necessary to the validity of a will that it should he drawn up in any set form of words ? It is not. Willard on Ex. & Surr. 112; Redf. Surr. Pr. 159. 38. Is it material in what language the will is written ? It is not. Willard on Ex. & Surr. 113 ; Willard on Real Estate, 483. 39. "What materials should he used in writing a will? A will should be written on paper or parchment with pen 224 Wills. and ink. Willard on Ex. & Surr. 113; Willard on Real Estate, 483. 4:0. What will he the effect of pencil interlineations in a will f If made before its execution ihey will be a part of the will : if made afterward they wiU not affect its Yalidity. Matter of Tonnelle, 5 N. Y. Leg. Obs. 254 ; S. C. affirmed, 4 N. Y. 140. 41. Who are the proper parties to draw the wilt f Any person possessing the requisite intelligence may draw a will ; but where the person drawing the will takes a benefit under it, the court will view the transaction with suspicion and will not pronounce in favor of the will until that suspicion is re- moved by evidence that the will was the spontaneous intention •of the testator. Willard on Ex. & Surr. 114, 42. How must a codicil he executed in order tp he valid ? In the same manner as a will. The term " will," as used in the statutes, includes codicils as well as wills. Willard on Ex. &■ Surr. 117 ; Redf. Surr. Pr. (3d ed.) 228. 43. How may a will he revoked ? 1. By a subsequent written will ; 2. By a formal written jevocation ; 3. By canceling or destroying the will ; 4. By change in the testator's circumstances or relations, as by subsequent mar- riage and birth of a child. Willard on Ex. & Surr. 118 ; Wil- lard on Real Estate, 482 ; Redf. Surr. Pr. 197. 44. What is meant hy the rule that no man can die with two testaments ? The rule is intended to express the legal principle that no two instruments, intended as wills, executed by the same person and inconsistent with each other, can have a legal existence at the same time ; as the one last executed only will be deemed the will of the testator. But the rule does not deny a legal existence to any number of instruments properly executed, though at dif- ferent times, as parts of, and collectively constituting the last will of the deceased. The rule applies only when a subsequent will expressly revokes a prior one, or when the two are so inconsistent with each other as to be incapable of standing together. Willard on Ex. & Surr. 119. Wills. 225 46. State the rule as to the effect of a subsequent idill on a prior -will, where the will last executed does not expressly revoke the prior -lone ? If a subsequent testamentary paper is inconsistent with one -of earlier date in part only, the former instrument will be revoked by the latter in such parts only ; but when the subsequent paper is not in conflict with the prior will, but makes a full disposition of the estate, whether wholly or partially incompatible with a former will, it is a revocation of such prior will in toto, unless it appear from the instrument itself that it was the intention of the testator that they should stand together. Willard on Ex. & ^urr. 119. 46. Jff -4, by his will, devises a certain piece of land to B, and in the same instrument devises the same land to C, who will take the land so devised ? A and B may both take the estate as joint tenants or as tenants in common. Barlow v. Ooffin, 24 How. 54. 47. If A, in one instrument, devises land to B, and in another -and later one devises the same land to C, who will take the land so devised ? C, as the devise in the will last executed will revoke the former one. Barlow v. Coffin, 24 How. 54 ; Redf. Surr. Pr. (3d ed.) 199. 48. A, having made his will, made another and later will, re- voking the first, and subsequently destroyed the second will- Bid •the destruction of the second will operate to revive the first ? Not unless it appears by the terms of the revocation that it was his intention to revive and give effect to the first will. 4 .Kent's Com. 532, 533 ; Willard on Ex. & Surr. 120. 49. What formalities are necessary to render an express revoca^ Hon of a former will valid P The will, codicil or other writing declaring such revocation must be executed by the testator with the same formalities that Are required by the law for the execution of a will. Willard on Ex. & Surr. 122 ; Belafield v. Parish, 1 Redf. 1 ; S. C. 25 N.- Y. !9 ; Willard on Real Estate, 492 ; Redf. Surr. Pr. 198. ' 80. What three things must concur to render the burning, tearing^ 15 226 Wills. canceling, obliterating or destrat/ing of a will iy the testator, a're~ vocation f 1. The testator must at the time possess a testamentary oa» pacity ; 2. The act must have been done with the intention of revoking the will ; 3. The act by which that intention is carried into effect, must, in the judgment of the law, have been com- pleted. Willard on Ex. & Surr. 123-125; Willard on Real Estate,- 498 ; Redf. Surr. Pr. 199, 200. 51. What further requirement is imposed hy statute where the- act of destroying, canceling or burning is done by another person by the direction and consent of the testator ? In order that the act shall amount to a revocation the statute- requires that the fact of the destruction, and the direction and consent of the testator shall be proved by at least two witnesseSv. Willard on Ex. & Surr. 124 ; Redf. Surr. Pr. (3d ed.) 198. 52. When may a lost or destroyed will be established f 1. When the will is proved to have been in existence at thfe- time of the death of the testator; or 2. When it has been shown to have been fraudulently destroyed in the life-time of the testa- tor ; and 3. When its provisions can be clearly and distinctly proved by two creditable witnesses, or by a copy of the will and one witness. Willard on Ex. & Surr. 125 ; Code of Civil Pro.. §§ 1865, 2621. 53. If a will is destroyed in the presence and at the request of the testator, but without the presence of other witnesses, can sueh destruction be deemed fraudulent, and can the will be estailisheiT as a lost or destroyed will in the supreme court ? It cannot. The fraud in the destruction of a will must con- sist in some deceitful contrivance, device or practice, to defeat the wishes and intent of the testator in regard to his will. Timon V. Claffy, 45 Barb. 348 ; S. C. affirmed, 41 N. Y. 619. 54. Jf it is proved that a will was once executed, but that it can- not be found, will the law presume its continued existence, or it» destruction hy the testator, animo revocandi ? If the will remained after its execution in the custody or control of the testator, the law will presume that it was destroyed WiiLs. 227 "by him with the intent of revoking it. Willard on Ex. & Surr. 126. See Schultz v. Schultz, 35 N. Y. (8 Tiff.) 653. 55. What will he the effect of marriage on a will executed hy an unmarried female? The marriage will operate as a revocation of a will elxecuted prior to such marriage. Willard on Ex. & Surr. 128 ; 4 Kent's Com. 527 ; Willard on Real Estate, 494; 3 R. S. (7th ed.) 2286, § 44. 56. ^ heing unmarried, made his will, leaving his entire estate to his nephew ; afterward A married, and died leaving a son surviving him, for whom no provision had been made hy marriage settlement or otherwise : will the estate go to the nephew, according to the terms of the will ? It will not. The marriage, together with the birth of issue of such marriage, will operate as a revocation of the will. Wil- lard on Ex. & Surr. 128 ; 4 Kent's Com. 527 ; Willard on Real Estate, 494 ; 3 R. S. (7th ed.) 2286, § 43. 57. What provision is made hy statute in favor of post testOr mentary children unprovided for hy will or otherwise? Every post testamentary child succeeds to the same por- tion of the father's real and personal estate as would have de- scended to him if the father had died intestate, and is entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by the will of the testator. Willard on Ex. & Surr. 129 ; Willard on Real Estate, 497 ; 4 Kent's Com. 525, 526 ; 3 R. S. (7th ed.) 2287, § 49 ; Code of Civil Pro., § 1868. 58- What will he the effect upon his will if A, during his life- time, alienate lands which he had previously devised to B f The alienation of this property by A will operate as a re- vocation pro tanto of his will. Willard on Ex. & Surr. 130 ; Willard on Real Estate, 496 ; 4 Kent's Com. 528. 59. if « testator enters into a valid agreement or covenant to convey lands, which equity will enforce specifically, will such agree- ment or covenant he deemed in law or equity a revocation of a prior devise of the same property ? It would have been so held in equity prior to the Revised 22S 'Wills. Statutes. But the Revise(J Statutes declare that such agreement oi- covenant shall not be deemed a revocation either at law or in equity, but that the property shall pass by the devise, subject to the same remedies, on the agreement or covenant for a speci- fic performance or otherwise against the devisees as might be had against the heirs of tlie testator or the next of kin, if the same had descended to them. Willard on Ex. & Surr. 130, 131 ; Willard on Real Estate, 495 ; 4 Kent's Com. 528, 529 ; 3 R. S. (7th ed.) 2286, § 45. 60- If a testator, by conveyance, settlement, deed or other act, alters, but does not wholly divest himself of his estate or interest in property previously devised or bequeathed, will this alteration operate as a revocation of his will ? It would have so operated before the Revised Statutes, but under the Revised Statutes the alteration will not operate as a revocation of the devise or bequest ; but the devise or bequest passes to the devisee or legatee the actual estate or interest of the testator which would otherwise descend to his heirs or pass to his next of kin, unless the instrument by which such altera- tion is made declares an intention to revoke such previous de- vise or bequest. If, however, the provisions of the instrument making such alteration are wholly inconsistent with the terms or nature of the previous devise or bequest, the instrument operates as a revocation, unless its provisions depend on a con- dition which has failed. 4 Kent's Com. 532, 533 ; Willard on Ex. & Surr. 131 ; Willard on Real Estate, 496 ; 3 R. S. (7th ed.) ,2287, §§ 47, 48-. 61. if a testator sells and conveys lands previously devised, and takes back a bond and mortgage for the whole or a part of the con- sideration money, will the sale revoke the will as to the land so sold and conveyed ? It will. Willard on Ex. & Surr. 132 ; Willard on Real Estate, 496. 62. If land be devised by A to B, and be afUrward conveyed hf deed to B, will B hold the land under the deed or under the will, uponf the death of A ? He will hold it by deed, and not by wiU. Willard on Real Estate, 496. Wills. 229 63. How may a will he republished ? It can be republished by repeating the ceremony by which it was executed, or by a duly attested codicil. Willard on Ex. & Surr. 133 ; Willard on Real Estate, 499 ; Redf. Surr. Pr. (3d ed.) 169. 64. If a codicil, properly attested, refers to a will not duty at- tested, will the execution of the codicil cure the defect in the exe- cution of the will ? It will, even where it is unattached to the will, and although "the witnesses attesting the codicil did not see the will to which it referred. Willard on Ex. & Surr. 133 ; Willard on Real Estate, 499. 65. What is the first thing to determine in the construction of a will ? The intention of the testator, as collected from the will it- self. When not inconsistent with the rules of law, this intention will control. Willard on Ex. & Surr. 369 ; Willard on Real Es- tate, 504; 4 Kent's Com. 534 ; Redf. Surr. Pr. (3d ed.) 251. 66. What is the general rule for the construction of the lan- guage of a will ? It should be construed according to its primary and ordinary meaning, where the will shows no intention on the part of the testator to give it a different signification. Technical words should be construed as used in their technical signification, un- less hj so doing, the intention of the testator, as gathered from the whole will, would be overthrown instead of supported, in which case they are to be construed as used in their ordinary and pop- ular sense. Willard on Real Estate, 504 ; Willard on Ex. & Surr. 369 ; Redf. Surr. Pr. (3d ed.) 255. 67. How must a will and codicil be construed ? A will and codicil should be taken and construed together as parts of one and the same instrument. Willard on Ex. & Surr. 370 ; Willard on Real Estate, 504 ; Redf. Surr. Pr. 254. 68- If two parts or provisions of a will are repugnant, so that both cannot stand, which must prevail ? The last, unless other parts of the will forbid such a con- 230 Wills. struction. Willard on Ex. & Surr. 369 ; "Willard on Real Es- tate 505 ; Redf. Surr. Pr. 253. 69. What property passes hy a devise of a testator's " estate ? " The devise passes both real and personal property ; and wher- ever the word " estate" is used in a devise of lands, without any words of limitation, the fee passes to the devisee. Willard on Real Estate, 506 ; Willard on Ex. & Surr. 370 ; 4 Kent's Com. 535. 70. When the word ^^ goods " is used without restriction in a be- quest, how should it be construed f It should be construed as including all the personal estate of the testator. Willard on Ex. & Surr. 371. 71. If A wills his personal property to B, will B take all the personal property of which A was possessed at the time of execut- ing the will, or such as A possessed at the time of his death ? He will take all the personal property of which A died pos- sessed, as a will of personal property speaks from the death of the testator. Willard on Ex. & Surr. 373. 73. What is the appropriate expression for a devise in fee simple ? " I give and devise to A, his heirs and assigns forever." Wil- lard on Real Estate, 508. 73. Is the term " heirs " or other words of inheritance requisite to create or convey an estate in fee ? It is not. Every grant or devise of real estate, or of any interest therein, passes all the estate or interest of the grantor or testator unless the intent to pass a less estate appears by express terms or is necessarily implied in the terms of the grant. 3 R. S. (7th ed.) 2205, § 1. 74. If A devises lands to the " heirs " of B, and B he still living at the death of A, why will the devise he void ? For the reason that B, being still living, can have no heirs, as nemo est hceres viventis. Reeves' Dom. Rel. 626 (486) Will- ard on Real Estate, 512, 513. 75. When will a devise or bequest he void from uncertainty ? Whenever it is impossible to discover from the whole will Wills. 231 tlie intention of the testator. Conjecture is not allowed to enter into the construction of wills. Willard on Real Estate, 514. 76. -Zf a testator devises land to certain individuals under ficti- tious names, and states in the body of the will that the true names ■of the devisees are to he found written opposite the fictitious names on a card placed in a certain place for safe keeping, can the card he used in evidence to show what persons the testator intend4d should share his estate ? It cannot. Willard on Real Estate, 516. ■ 77. If land is devised to John Smith, and it appears that there •nre several persons known hy that name, can parol evidence he in- troduced to show what particular John Smith was intended in the It can. Willard on Ex. & Surr. 377. 78. If a testator devises lands to the children of his two daughters A and B, to he equally divided among them as they re- spectfully arrive at the age of twenty-one years, what grandchil- dren, horn after the execution of the will, will he included in it ? All born before the death of the testator. Such as are born ■after such death are excluded from the provisions of the will. -Douhleday v. Newton, 27 Barb. 431. 79. Who are included in the word " issue," as used in a will ? Both children and grandchildren. Willard on Real Estate, S23. 80 Will a nick-name he sufficient to designate a devisee ? It will if it is a name given by the testator and current , in ills family. Willard on Real Estate, 511. 232 Executors and Administkatoes. CHAPTER XV. • EXECUTORS AND ADMINISTRATORS. 1. What is the meaning of the term "executor?" An executor is one who, by the terms of a will, is intrusted with its execution. 2 Bl. Com. 503 ; Redf. Surr. Pr. (3d ed.> 273. 2. Who may he appointed executor? Any person may be appointed and act as executor, unless he is, (1) incapable in law of making a contract ; or (2) under the age of twenty-one years ; or (3) an alien not an inhabitant of this State ; or (4) has been convicted of an infamous crime j. or (5) shall be judged incompetent by the surrogate to execute; the duties of the trust by reason of drunkenness, improvidence,, or want of understanding. Willard on Ex. & Surr. 134. 3. Can a married woman become an executrix without the ccm- sent of her husband ? She can, and may receive letters testamentary as though she^ were a single woman. Laws of 1867, chap. 782, § 2 ; Redf. Surr. Pr. (3d ed.) 280. 4. If a person who is a prof essional gambler is designated in a will as the executor thereof, will the surrogate be Justified in refus- ing to grant him letters testamentary f He will. It has been decided by the Court of Appeals that the fact that a man is a professional gambler is presumptive evi- dence pf such improvidence as to render him incompetent to discharge the duties of executor or administrator. Willard on Ex. & Surr. 136 ; Redf. Surr. Pr. (3d ed.) 282. 5. Will the bare fact that a person is illiterate, if otherwise com- petent, authorize the withholding from him of letters testamentary ?" It will not. Willard on Ex. & Surr. 137. EXBCUTOKS AND Administeatoes. 235 ^. If A is appointed sole executor of the last will and testament of B, and'dies before the full execution of his trust, will his executor succeed to the office of Ms testator, and be entitled to proceed to settle the affairs of both A and B? He would at common law, but not under the Revised Stat- utes. When a sole executor, or a surviving executor of any last will and testament dies, the statute requires that the surrogate shall grant letters of administration cum testamento annexo of the assets of the first testator left unadministered. Willard on Ex. & Surr. 139; Code of Civil Pro., § 2643. 7. What is the effect of the death of one of several executors ? Upon the death of one of several executors, the surviving executor or executors succeed to the duties of his office, and, become vested with the interest of the original testator. Wil- lard on Ex. & Surr. 140 ; Redf. Surr. Pr. (3d ed.) 456. 8. What do you understand hy the term " executor de son tort ?" Executor de son tort is a term applied at common law to a person not appointed executor who intermeddles in that charac- ter with the goods of the deceased, and thereby makes himself executor in his own wrong, and, as such, liable to others without being himself armed with any legal rights. 2 Bl. Com. 507 : Redf. Surr. Pr. (3d. ed.) 439. 9. What provision is made by statute in relation to the liability of a party who interferes with the property of a deceased person f The Revised Statutes enact that no person shall be liable to an action as executor of his own wrong by reason of having re- ceived, taken or interfered with the property or effects of a de- ceased person, but that he shall be responsible as a wrongdoer in the proper action to the executors, or general or special ad- ministrators of such deceased person, for the value of the prop- erty taken or received, and for all damages caused by his acts to the estate of the deceased. Willard on Ex. & Surr. 140 ; Redf. Surr. Pr. (3d. ed.) 126. 10. How may an executor, who has not taken the oath of office, he discharged from his trust ? He may free himself from the duties of the office by (1) a 234 EXECUTOKS AND Administratoks. formal renunciation of the office, or (2) by refusing or neglect- jrig to appear before the surrogate to take the oath of office. . Willard on Ex. & Surr. 141, 142. 11. What do you understand hy the term, renunciation and what formalities are necessary to render it effectual ? A written declination of the office of executor is termed a renunciation. It must be executed by the executor, and acknowl- edged or proved and certified in a like manner as a deed to be re- corded in the county, or attested by one or more witnesses, and proved to the satisfaction of the surrogate and filed in his office. Code of Civil Pro., § 2639. 12. What power vnay an executor exercise before a will has been admitted to probate and letters of administration granted ? He can exercise no power as executor, further than to pay funeral charges and to do such acts as are necessary for the pres- •ervation of the estate. Willard on Ex. & Surr. 146 ; Redf. Surr. Pr. 127. 13. Upon what theory can an executor recover damages for an injury to the -personal property of the deceased, when such injury .is committed after the death of the testator and before the probate fff his will ? Upon the theory tliat the rights which existed in the tes- tator during his life-time became at his death vested in his ex- ecutor. The rights which the latter acquires after probate are by a legal fiction, deemed to relate back to the time of the tes- tator's death. "Willard on Ex. & Surr. 147; Redf. Surr. Pr. (3d ed.) 464. \4c. If A, being a resident of this State, should die in the State of Ohio, in what court should application for probate of the last will ^f Abe made ? In the surrogate's court of the county of which the decedent was a resident at the time of his death. Code of Civil Pro. § 2476. 15. ^ A, being a resident of the State of Ohio, dies leaving assets in this State in what court should application for the probate of his last will be made ? If A, died within the State, the application should be made ExBCUTOES AND ADMINISTRATORS. ' 235 to the surrogate of the county in which he died. If A died with- out the State leaving personal propert)'- in only one county of this State, the application should be made to the surrogate of that county. If A died without the State leaving personal prop- -erty in two or more counties of this State, the application may be made to the surrogate of either of such counties. Code of Civil Pro. §§ 2476, 2477. 16. Suppose a non-resident of this State, dies without the State, leaving no property therein except a valid unliquidated demand • against a domestic corporation, in what court should application ■he made for the prolate of his last will ? In the surrogate's court of the county in which the principal -office of the corporation is situated. Code of Civil Pro., § 2478. 17. Who may apply for the probate of a will ? The application may be made by a person designated in the will as executor, devisee or legatee, or by a husband or wife, heir, or next of kin, or creditor of the decedent. Redf. Surr. Pr. (3d ■ed.) 146; Code of Ciml Pro. § 2477. 18. If the executor has not the will in his custody, how may he, or any other person interested, compel the production of the will ■ before the surrogate for the purpose of proof ? • By serving the party having the custody of the will with a subpoena duces tecum. Willard on Ex. & Surr. 151 ; Redf. Surr. Pr. (3d ed.) 147 ; Code of Civil Pro., § 2481. 19. What formality must in all cases be observed before letters testamentary can issue to an executor ? Letters testamentary cannot issue until the executor has made oath before the proper officer that he will faithfully and 'honestly discharge the duties of an executor. Willard on Ex. & Surr. 161 ; Redf. Surr. Pr. (8d ed.) 273 ; Code of Civil Pro. ' .2594. 20. To whom should letters of administration be granted, in cases of intestacy f They should be granted to the relatives of the deceased, who would be entitled to succeed to his personal estate, in the followuig order : (1) to the widow ; (2) to the children ; (3) 236 Executors and Administrators. to the father ; (4) to the mother ; (5) to the brothers ; (6)' to the sisters ; (7) to the grand-children ; (8) to any other, of the next of kin who would be entitled to share in the distribij- tion of the estate. Where the person entitled is a minor, letters should issue to his guardian, and, where neither relations or guardians will accept, then to the. creditors of the deceased; and if no creditor applies, then to any otliei' person legally compe- tent. If the intestate is a married woman, her husband is en- titled to administration in preference to any other person. Redf. Surr. Pr. (3d ed.) 308, 311. 21. WJiere the surrogate is satisfied that he has jurisdiction, and that a person applying is entitled to letters of administration, what proceedings are still necessary on the part of the applicant before- such letters can issue ? The applicant must take the oath required by the statute,, that he will honestly and faithfully discharge the duty of admin- istrator, according to law, and must give a bond, with two 'or more sureties, in a sum not less than double the value of the personal estate of which the intestate died possessed, for the faithful execution of the trust, and for obedience to the orders of the surrogate touching the administration of the estate commit- ted to him. Willard on Ex. & Suit. 202 ; Redf. Surr. Pr. (3d ed.) 324-325; Code of Civil Pro., §§ 2594, 2667. 22. In what cases will letters of administration, cum testamento annexo, be granted .f (1) When the executors appointed by will have renounced, or failed to qualify, or are legally incompetent ; or (2) where,, after partially administering the estate, all the executors have died, or have become incapable of acting, or the power exercised by them has been revoked. Willard on Ex. & Surr. 208 ; Redf. Surr. Pr. 293 ; Code of Civil Pro., § 2643. 23. To whom should letters of administration with the will m nexed be granted ? (1) To one or more of the residuary legatees who are qual- ified to act as administrators ; (2) If there is no such residuary legatee, or none will accept, then to one or more of the princi- pal or specific legatees so qualified ; (3) If there is no such lega- EXECUTOKS AND ADMINISTRATORS. 237 tee, or none who will accept, then to the husband or wife, or to •one or more of the next of kin, or to one or more of the heirs or devisees, so qualified ; (4) If there is no qualified person of the •classes above mentioned who will accept, then to one or more of the creditors who are so qualified, except that in the counties of New York and Kings, the public administrator has preference after the next of kin over creditors and all other persons; (5) If there is no qualified creditor who will accept, then to any proper person designated by the surrogate. Code of Civil Pro., § 2643; Redf. Surr. Pr. (3d ed.) 298. 24. What are the powers and duties of an administrator with the will annexed ? He has the same rights and powers, and is subject to the same duties as if he had been named as executor in the will. It is his duty to observe and carry out the will of the deceased. Willard on Ex. & Surr. 209. 25. In what cases are letters of administnation de bonis nan granted in this State ? When all the executors or all the administrators to whom letters have been issued die or become incapable of discharg- ing the trust reposed in them, or the letters are revoked as to all of them. Code of Civil Pro. § 2693 ; Redf. & Surr. Pr. (3d «d.) 328. 26. Does an administrator de bonis non acquire any right or title to the proceeds of personal property sold or debts collected by the former administrator. ? He does not. He derives his title from the deceased and not from the former administrator. He is entitled only to the •administration of the goods, chattels and credits of the deceased which remain in specie unadministered. The proceeds of sales ■and collections made by the former administrator are his indi- vidual property, and not the property of the decedent. United States V. Walker, 109 U. S. 258. 21. If a sole administrator dies after partially administering- the estate, what remedies are available to those interested in the estate to protect and enforce their rights f An administrator de bonis non may be appointed to complete 238 Executors and Administbatoes. the administration of the estate ; the personal representative of the deceased administrator may be compelled to account and to- deliver over any of the trust property which has come to his pos- session or under his control ; a decree rendered on the account- ing will fix the amount due the estate from the deceased admin- istrator ; and this amount may be collected by action upon his- official bond. Code of Civil Pro., § 2606. 38. When may a temporary administrator he appointed? When a delay necessarily occurs in the granting of letters testamentary or of administration ; or where there is reasonable grounds to believe that a person, of whose estate the surrogate would have jurisdiction if dead, is dead, or become a lunatic, or secreted, confined, or , otherwise unlawfully made way with and the appointment of such administrator is necessary for the pres- ervation of his property and the rights of creditors, or of those who will be interested in the estate if it is found that he is dead. Code of Civil Pro., § 2668 ; Redf. Surr. Pr. (3d ed.) 355. 29. If an executor has taken a bond and mortgage. to himself in- dividually and not as executor, to secure a loan of the moneys of the estate he represents, and has died before payment of the mort^ gage debt, who must bring an action to enforce the securities in- case of default in payment ? The personal representatives of the deceased executor, and not the administrator with the will annexed of his testator. 8 Wait's Act. & Def . 246. 30. In what securities may an executor invest the funds of the- estate f In government securities, mortgages upon real estate, and in bonds or stocks of any of the cities of this state issued pursuant- to any law of this state. Eedf. Surr. Pr., 521 ; Laws of 1889, chap. 65. 31. Would an investment of the funds of the estate in bonds and mortgages upon lands in another State be a proper exercise of an executor'' s powers ? Ordinarily it would not ; but if, without fault of the executor, assets of the estate have been changed into a debt which can only be saved by taking a foreign security, such act is justifiable^ 8 Wait's Act. & Def. 248, 249. Executors axd Administbatoes. 239' 32. At what time may an executor or administrator publish -a. notice to creditors to present their claims f At any time after the granting of letters testamentary or of administration. Laws of 1890, chap. 450. 33. What will he the effect upon all prior proceedings' if , after letters of administration have been granted, and the administrator has entered in good faith upon the duties of his trust, a will of the supposed intestate is discovered, and admitted to probate ? > In that case, it will become necess'ary to revoke the letter*, of administration previously issued ; but all acts of the adminis- trator done in good faith under the authority of such letters :^e- main valid notwithstanding the subsequent discovery of the will. Willard on Ex. & Surr. 240. 34. State the order in which an executor or administrator should discharge the debts against the estate he has undertaken to administer ? He should satisfy (1) debts entitled to preference under the laws of the United States ; (2) taxes assessed upon the estate ;, (3) judgments docketed according to their priority ; (4) all rec- ognizances, bonds, sealed instruments, notes, bills and unliqui- dated demands and accounts. Willard on Ex. & Surr. 274 ; Redf > Surr. Pr. (3d. Ed.) 550. 35. Which are entitled to priority of payment, debts or legacies f Debts must be paid before legacies except in some special cases provided for by law. Willard on Ex. & Surr. 293. 36. When all the claims against the estate are ascertained and the executor or administrator is satisfied that the assets are insuffi- cient to pay all the debts, how should he proceed in the matter ? He should first satisfy the claims entitled to priority and make a pro rato distribution of the residue among the remaining creditors. Willard on Ex. & Surr. 303. 37. When the executor or administrator has exhausted the per- sonal estate in the payment of debts or funeral expenses, and the proceeds of the personal estate proved insufficient to pay such 240 Executors and Administbatoes. debts and expenses in full, what course may still he pursued by Mm to make up the deficiency f He may apply to the surrogate for a decree directing the disposition of the decedent's real property for the payment of such debts and expenses. Code of Civil Pro., § 2750. 38. What real property may he ordered sold for that purpose f Any real property of which the decedent died seized, and any interest of the decedent in real property held by him under a contract for the purchase thereof, made either with him or with a person from whom he derived his interest, except land devised expressly charged with the payment of debts or funeral expenses, or land exempt from levy and sale under an execution. Code of Civil Pro., § 2749. • 39. When all the claims against the estate have been satisfied, ■and it appears that there is not sufficient assets to pay all the lega- cies, how should the executor proceed ? He should first discharge the specific legacies in full if there be sufficient assets, and should then proceed to satisfy the gen- •eral legacies. The statute provides that if there be not sufficient assets to pay the general legacies, then an abatement of the gen- eral legacies shall be made in equal proportions. WiUard on Ex. & Surr. 380 ; Redf. Surr. Pr. (3d. ed.) 585. 40. If, after an executor has paid the funeral charges and debts of the deceased and the genenal and specific legacies, there should still remain assets not bequeathed by the will, what disposition should be made of the surplus ? He should distribute this surplus among the persons en- titled to it under the statute of distributions. Willard on Ex. & Surr. 395. 41. JExplain generally the doctrine of advancement? The Revised Statutes provide that where any child of a de- ceased person shall have been advanced by the deceased, by set- tlement or portion of real or personal estate, the value of such advancement must be reckoned with ;that part of the surplus of the personal estate which remains to be distributed among the children, and if such advancement be equal or superior to the Executors and AdminisxkatorS. 241 Amount which, according to the rules of distribution, would be - I eution of contracts relating to personal property f Ordinarily, courts of equity do not enforce such contracts,. because courts of law usually afford a complete remedy ; yet whenever damages from a violation of the contract cannot be correctly estimated, or whenever, from the nature of the contract, a specific performalice is indispensable to justice, a court of equity will not be deterred from interfering, because the c ntract relates- to personal property. Willard's Eq. Jur. 275, 276, Wait's act. 6 Def. 469, 470 ; Pomeroy on Spec. Perf. § 16-18 ; Story's Eq. Jur. §§ 716—731. 56. What is the nature of the personal acts with respect to whicji courts of equity entertain jurisdiction to decree perf ormance specifi- cally ? Such acts must have reference to property of some kind ; and there is none where a contract for personal services alone has been actively enforced, though the court has sometimes inter- fered negatively. Thus, in the case of a theater considered as a. partnership, a contract with the proprietors not to write dramatic pieces for any other theater, is valid, and a violation of it will be restrained by injunction. Willard's Eq. Jur. 277 ; 5 Wait's Act. & Def. 768. 57. Grive some instances where personal covenants will he decreed to he enforced hy courts of equity. Numerous cases of this kind arise between landlord and ten- ant, and in cases of partnership. Thus, a covenant to give a 256 Equity Jueispkudence. lease, or to renew a lease, has been required to be executed, and to contain also a covenant for a further renewal. So an agree- ment to form a partnership, and execute articles accordingly, may be specifically enforced. So a covenant to sustain and re- pair the banks of a river. Willard's Eq. Jur. 278. See 5 Wait's Act. & Def. 769. 780. 68. Under what two heads may the cases he considered), in which equity grants specific performance of contracts relative to land? First, where relief is sought upon parol contracts within the statute of frauds ; and, second, where it is sought under written contracts, not falling within the scope of that statute. 2 Story's Eq. Jur., § 745. 69. Why is it, that courts of equity exercise a more extensiue Jurisdiction in compelling the specific performance of contracts re- lative to land, than in those relating to personal property ? In regard to contracts respecting personal property, it is generally true, that no particular or peculiar value is attached to any one thing over another of the same kind; and that a com- pensation in damages meets the fuU merits, as well as the full objects, of the contracts. But it is otherwise with respect to contracts relative to real estate. Here the jurisdiction to enforce performance is universal, because damages at law, which must be calculated upon the general money -value of land, may not be a complete remedy to a purchaser, to whom the land may have a peculiar and special value. 2 Story's Eq. Jur., § 746 ; Willard's Eq. Jur. 279. 60. Upon what principle do courts of equity entertain jurisdic- tion, and compel the performance of agreements within the statute of frauds, and for the breach of which no action would lie at law? Courts of equity, as well as courts of law, are alike bound by the statute ; but whenever they intervene to enforce contracts, not made in conformity to the statute, they do so, not out of dis- regard to the act, but for the purpose of administering equities which exist in subordination to its spirit, and in no respect in- consistent with its policy, or where the parties themselves have waived its protection. Willard's Eq. Jur. 281, 282; 2 Story's Eq. Jur., ^ 754 ; 5 Wait's Act. & Def. 797. Equity Jukispeudence. 257 61. Grive some instances in which courts of equitt/ will enforce a specific performance of a contract within the statute, though not in The cases of most frequent occurrence are where the parol agreement has been partly carried into execution ; or, where the terms for the performance and completion of the contract have not in point of time, been strictly complied with. So where a parol contract is definitely stated in the bill, and admitted in the answer, and the statute is not urged as a bar, a specific perform- ance will be enforced. 2 Story's Eq. Jur., §§ 759, 776; Wil- lard's Eq. Jur. 282. 62. Upon what principle do courts of equity enforce specific per' J'ormance, if the contract he partly executed iy the party seeking re- lief? The principle in such cases is that, if one of the contracting parties induces the other so to act, that if the contract be aban- doned, he cannot be restored to his former position, the contract must be considered as perfected in equity, and a refusal to com- plete it at law is in the nature of a fraud. Willard's Eq. Jur. 283. 63. Point out the distinction between the case of a vendor coming into a court of equity to compel a vendee to perform, and of a vendee resorting to equity to compel a vendor to perform. In the first case, if the vendor cannot make out a title as to part of the subject-matter of the contract, equity will not compel the vendee to perform the contract pro tanto. But where a vendee seeks a specific execution of an agreement, there is much greater reason for affording him the aid of the court, when he is •desirous of taking the part to which a title can be made. Wil- lard's Eq. Jur. 286 ; 2 Story's Eq. Jur., §§ 777-780; 8 Wait's Act. & Def. 469. 1 64. What must the plaintiff, who seeks for the specific perform- ance of an agreement, show, in order that he may he entitled to the -relief sought f He must show that he has performed, or offered to perform, •on his part, the acts which formed the consideration of the alleged undertaking on the part of the defendant. For if the plaintiff 17 •268 Equity Jurispetjdencp. ■will not, or, through negligence, cannot, perform the whole oa his side, he has no title in equity to the performance of the other party, since such performance could not be mutual. Willard's- Eq. Jur. 291 ; 6 Wait's Act. & Def. 802. 65. In contracts relative to real estate, is it always an indispen- sable requisite, to the granting of relief in equity, that the party: seeking relief has himself performed precisely at the day f It is not. If he has not been guilty of gross neglect ; if his laches can be reasonably explained, and be shown to be consistent with fairness and good faith ; if the delaycan be compensated to the other party, and time has not been made material by the con- tract of the parties, a court of equity will still afford relief., Willard's Eq. Jur. 293 ; 5 Wait's Act. & Def. 803, 804. 66. Will equity in any case, compel a vendee to accept the con- veyance of a doubtful title ? It will not. But if there be a defect in the paper title of the- vendor, it seems that if his possession under color of title has. been sufficient to establish a good adverse possession, it is suffi- cient to be the ground of a decree. So if he is able to give a good title at the time of the decree, it will be sufficient. Willard's Eq. Jur. 295 ; 2 Story's Eq. Jur., § 777 ; 5 Wait's Act. & Def. 778, 803; Sid. 469. 67. What relief is afforded, in equity, where deeds, or other instruments in writing, relating to the title of property, are illegally withheld from the party entitled to them f In such case, althougli an action at law will lie, damages only can be recovered ; but equity administers a better and more efficient remedy, by requiring the delivery of the instrument to the party to whom it belongs. The heirs at law, or devisees, or any party standing in legal privity with them, and who are en- titled to the possession of the muniments of their title, may main- tain a bill for the delivery to them of such title deeds. Willard's Eq. Jur., § 695 ; id. 307. 68. What is meant in equity by a bill quia timet ? Bills quia timet, are ordinarily applied to prevent wrongs or anticipated mischiefs, and not merely to redress them when done.- The party seeks the aid of a court of equity, because he fears- Equity Jueispbudencb. 259 ijjuia timef) some future prooable injury to his rights or interests, and not because an injury has already occurred which requires any compensation or other relief. 2 Story's Eq. Jur., § 826 ; 1 Wait's Act. & Def. 654 ; 8 id. 130. 69. In what manner is this aid given by courts of equity ? The manner is dependent upon circumstances. Sometimes they interfere by the appointment of a receiver to receive rents or other income ; sometimes by an order to pay a pecuniary fund into court ; sometimes by directing security to be given, or money to be paid over, etc. 2 Story's Eq. Jur., § 826 ; 1 Wait's Act. & Def. 657. 70. What is an injunction, and name the different kinds of in- junctions f An injunction is a mandate in writing, issued by a court or oificer of competent jurisdiction, either under the seal of the court or by order, commanding the party to whom it is addressed to do, or to refrain from doing, some particular thing, as is re- quired in such writ or order. With reference to their duration, injunctions are of two kinds, preliminary and jinal ; the former being granted hefore and the latter after the final decree or judg- ment in the cause. With reference to their objects, they are also of two kinds ; commanding a party to do, or to refrain from doing, a particular thing. Willard's Eq. Jur. 341 ; 2 Wait's Pr. 1 ; 3 Wait's Act. & Def. 680, 681. 71. Js the granting of an injunction a matter of strict right, or does it rest in the discretion of the court ? The jinal injunction is in many cases matter of strict right, and granted as a necessary consequence of the decree made in the cause ; but the granting of a preliminary injunction always rests in the discretion of the court. Willard's Eq. Jur. 842 ; 2 Wait's Pr. 3 ; 3 Wait's Act. & Def. 688. 72. State a few of the ordinary cases in which courts of equity grant injunctions ? They are : To restrain vexatious suits ; to restrain the aliena- tion of property ; to restrain the waste ; to restrain nuisances ; to restrain trespasses, and to prevent other irreparable mischiefs. Story's Eq. Jur., § 873. 260 Equity Jukispkudence. 73. Will a court of equity interfere by an injunction, in a case where there is an adequate remedy at law? Generally, it will not. Thus a court of equity will not dis- turb the verdict of a jury because the damages are excessive ; relief in such cases in courts of law being fully adequate. Story's Eq. Jur., § 864; Willard's Eq. Jur. 358; 2 Wait's Pr. 6; 3 Wait's Act. & Def. 684 ; 8 id. 316. 74. In what cases only will courts of equity grant an injunction to restrain a public nuisance ? In those cases only where the fact is clearly made out upon determinate and satisfactory evidence. For if the evidence be conflicting, and the injury to the public doubtful, that alone will constitute a ground for withholding this extraordinary interpo- sition. Story's Eq. Jur., § 924, a; 2 Wait's Pr.l9, 20; 3 Wait's Act. & Def. 707. 76. Ufon what is the interference of courts of equity, by way of injunction, founded, as regards private nuisances ? Such interference is founded upon the ground of restraining irreparable mischief, or of suppressing oppressive and intermin- able litigation, or of preventing multiplicity of suits. A mere diminution of the value of property by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief. Story's Eq. Jur., § 925 ; 3 Wait's Act. & Def. 708 ; 8 id. 320. 76. Has a party, by whom private letters have been written and sent to another person, any property absolute or qualified in the letters so sent as regards the person receiving them f If so, under what circumstances, to what extent, and in what way can he assert his title to this species of property in a court of equity f A person writing a letter and sending it only parts with the property in it for the purposes for which it was sent. Therefore the party receiving it has no right to publish it without the per- mission of the author. The publication will, therefore, be restrained if carried further than is necessary to carry out the writer's wishes. An injunction is the proper remedy. Story s Eq. Jur., § 944 ; 2 Wait's Pr. 54 ; 3 Wait's Act. & Def. 743. Equity Jurisprudence. 261 77. Upon what principle do courts of equity restrain any publication by injunction ? Upon the principle of protecting the rights of property in the book or letters sought to be published. To justify the in- terference of the court there must be an invasion by the'defend- ant of the rights of property of the plaintiff, or some direct breach of confidence connected therewith. Story's Eq. Jur., § 948. 78. If secrets have been communicated by one person to another in the course of a confidential employment, will courts of equity in- terfere by injunction to restrain the disclosure of such secrets ? They will, and it matters not, in such cases, whether the secrets be secrets of trade or secrets of title, or any other secrets of the party, important to his interests. Story's Eq. Jux., § 952 ; 3 Wait's Act. & Def. 753. 79. To what extent has a court of equity jurisdiction to interfere in cases of public functionaries, who are exercising public trusts or ' functions f The established doctrine is, that as long as those function- aries strictly confine themselves within the exercise of those duties which are confided to them by the law, a court of equity will not interfere. Story's Eq. Jur., § 955, a ; Z Wait's Act. & Def. 749. 80. In what cases will a court of equity refuse the granting of an irijunctionf No injunction will be granted whenever it will operate op- pressively, or inequitably, or contrary to the real justice of the case ; or where it is not the fit and appropriate mode of redress under all the circumstances of the case ; or where it will or may work an immediate mischief, of fatal injury. Story's Eq. Jur, 959, a; 8 Wait's Act. & Def. 324. 262 pLBAoiira. CHAPTER XVII. PLEADING. 1. What is meant hy the term pleading as used in law? A pleading is the statement in a logical and legal form of the facts which constitute the plaintiff's cause of action, or the de- fendant's ground of defense. Gould's PI. 2 ; 3 Bl. Com. 292, note ; 2 Wait's Pr. 285. 2. In what manner do the pleadings assist in facilitating the settlement of a controversy ? By narrowing down the questions in controversy to a direct affirmation of fact or a conclusion of law on the one side, and an equally direct denial of the same upon- the other. Gould's PL 10 ; 2 Wait's Pr. 285. 3- What legal phrase is used to describe the condition of the cause when this point has been reached in the pleadings ? The cause is then said to be at issue, and is ready for trial. Gould's PI. 9, 279; 2 Wait's Pr. 463. 4. Q-ive an analysis of the first pleading on the vartoftheplaint- ^ iff, showing its logical construction. The first pleading of the plaintiff should consist : 1. Of a major proposition, which is the assertion of an abstract legal principle to the effect that the plaintiff has a legal right to recover damages against one who has done or omitted to do a specified act ; 2. Of a minor proposition, which consists in a direct' allegation that the defendant has done or has omitted to do that act ; and, 3. Of the conclusion or legal inference result- ing from the law and fact together as they appear in the prem- ises, that the plaintiff has a legal right to recover damages of the defendant. Gould's PI. 5. Pleading. 263 6. Are these logieal parts of the pleading actually expressed ? The major proposition, or legal principle upon which the plaintiff founds his claim, is never actually expressed in the pleading, as it is sufficiently indicated by the nature of the facts -alleged together with the demand contained in the prayer for judgment. Gould's PI. 11. 6- What is this first pleading on the part of the plaintiff called ? Under the old system of pleadings it was called the declara- tion or count, but under the Code it is termed the complaint. 'Gould's PI. 16 ; 3 Bl. Com. 393 ; Code of Civil Pro. § 478. 7. In what manner might the defendant, under, the old system of ■pleadings, resist the legal inference that he was liable to the plaint- iff in damages ? In three ways, viz. : 1 By denying the major proposition, or, in other words, by denying that the facts as alleged would render him liable to the plaintiff in damages, thus raising an issue of -law ; or 2. By denying the minor proposition or allegation, that -such acts were done by the defendant, thus raising an issue of fact ; or 3. By leaving the major and minor proposition undenied, ■but setting up instead, new matter, inconsistent with a legal right in the plaintiff to recover damages of the defendant, thus impliedly denying the plaintiff's right to recover damages. Gould's PI. 6. 8. What additional mode of defense is given hy the Code by ■way of allegation of new matter ? Under the old system of pleading the new matter which the defendant was allowed to set up in his pleading was confined wholly to facts constituting a defense by way of avoidance, as, for example, a plea of license in an action for trespass ; but under the Code, the defendant is allowed to set up a counter- claim by way of defense, or, in other words, to set up facts .showing a right of action against the plaintiff. Gould's PI. 6 : 2 Wait's Pr. -127 ; Code of Civil Pro. § 500. 9. What is the first pleading on the part of the defendant ■called ? It may be either a demurrer or answer. If it denies the 264 Pleading. legal sufficiency of the complaint as a pleading, it is a demurrer^ but if it denies the facts set up in the complaint, or sets up new^ matter either in avoidance of it, or in the form of a demand -against the plaintiff, it is an answer. Code of Civil Pro., §§ 487, 488, 498, 500. 10. When the answer contains no denials of any fact set up in ' the. complaint, hut sets up a defense based wholly on new matter, how may the plaintiff resist the legal inference, arising from the facts so alleged, that he is tiot entitled to recover damages against tJ^e defendant, or at least to the amount claimed f The plaintiff may deny that the answer of the defendant ' constitutes any defense to his claim, and thus raise an issue of law ; or he may deny the facts upon wliich the defendant bases his claim for damages, and thus raise an issue of fact. Code of Civil Pro. §§ 494, 495, 514. 11. What is the second pleading on the part of the plaintiff called f It may be either a demurrer or reply. If it denies the legal sufficiency of the answer as a pleading, it is a demurrer ; but if it denies the facts set up in the answer, or sets up other facts as ■ a defense to those set up in the answer it is a reply. Code of Civil Pro., §§ 494, 495, 514. 12. What further pleading is allowed the defendant, after the service of the reply upon him ? He may demur to the reply. Code of Civil Pro., § 493. 13. What was the limit to the number of pleadings allowed under the old system ? Theoretically there was no limit to the number of pleadings under the old system, as each party had a right to allege new matter at any stage of the pleadings, so long as new matter was, alleged against him. Practically, however, the extreme limit of the pleadings was the surrebutter. Gould's PI. 8, 26. 1 4. State, in their order, the names of the different pleadings known under the former system. The pleadings under the old system were : The declaration or count, the plea, the replication, the rejoinder, the surrejoinder the rebutter, and the surrebutter. Gould's PL 26. Pleading, 265 15. What governs the form of pleadings and determines their •sufficiency under the present system of practice ? ^ Chapter sixth of the Code of Civil Procedure prescribes the form of pleadings in an action and the rules by which their suf- ficiency is determined, except where special provision is otherwise made by law. Code of Civil Pro., § 518. 16. State the requirements of the rules of court as folioingy indorsing, and writing pleadings and copies of pleadings ? All pleadings and copies thereof must be fairly and legibly written; and every pleading exceeding two folios in length must be distinctly numbered and marked at each folio in the margin thereof; and all copies, either for the parties or the court, must, be numbered or marked in the margin so as to conform to the original draft and to each other, and must be indorsed with the title of the cause. ' General Rule 19 ; 2 Wait's Pr. 297. 17. S.OW and when would you take an objection to a pleading, on the ground that it was not folioed ? By returning it, within twenty-four hours from its receipt^ with a statement of the defect objected to. 2 Wait's Pr. 297. 18. What is the effect of delay in objecting to the failure to comply with the requirement as to writing, folioing and indorsing a copy pleading ? If the party upon whom the copy is served does not return it to the party serving it within twenty-four hours after its receipt with a statement of the particular objection to its receipt^ he will be deemed to have waived the objection. General Rule, 19. 19. To what courts do the general provisions of the Code as to the form and sufficiency of pleadings apply f They apply only to actions commenced in the supreme court, a superior city court, the city court of New York, or a county court. Code of Civil Pro., § 3347, subd. 4. 20. What must the complaint in an action in one of these courts contain ? The complaint must contain (1) the title of the action ; (2) a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition ; and (3) a de- 266 Pleading. mand of the judgment to which the plaintiff supposes himseU entitled. Code of Civil Pro., § 481. 2 1 . What do you understand by the words " title of the action ? " It is the statement at the commencement of the pleading of the name of the court in which the action is brought, and if it is brought in the supreme court, of the name of the county which the plaintiff designates as the place of trial, and also of the names of all the parties to the action, plaintiff and defendant. Code of Civil Pro., § 481. 22. What does the statute require in case two or more causes of 'action are stated in the complaint ? The Code requires that the facts constituting each cause «f action shall be separately stated and numbered. Code of Civil Pro., § 483 ; 2 Wait's Pr. 299. 23. What phrase is commonly employed to introduce und distin- guish every additional cause of action in a complaint ? Causes of action following that first stated in the complaint are commonly introduced and distinguished by the phrase. " And for a further cause of action the plaintiff complains," etc., or other equivalent words. 2 Wait's Pr. 299. 24. What is the proper procedure on the part of the defendant ■upon being served with a complaint in which several causes of action are combined in a single statement, in violation of section 483 of the Code of Civil Procedure ? The practice is somewhat unsettled; but the most direct -and simple procedure is to move at special term for an order di- recting the plaintiff to serve an amended complaint setting forth separately the several causes of action, duly numbered, pursuant to section 483 of the Code of Civil Procedure. The defendant may also ask for such other and further relief as to the court shall seem equitable, and for costs of the motion. Q^uim T. Fellows, 41 Hun, 257. See 2 Wait's Pr. 2^9. 26. Is it necessary that a pleading should be dated? It is not. 2 Wait's Pr. 300. Pleading. 267 26. Is it necessary that a pleading shoidd be subscribed f It is. The code declares that a pleading must be subscribed loj the attorney for the party. Code of Civil Pro., § 520. 27. Are facts to be stated in a pleading according to their legal effect, or as they actually exist ? No rule can be stated which will govern all cases, and much must be left to the good sense of the pleader. It may be stated negatively that mere evidence of a fact should not be alleged instead of the fact which the evidence proves ; and, on the other hand, as a general rule, a mere legal conclusion should not be alleged instead of the facts from which that conclusion necessarily flows. By "facts" must be understood physical facts as distinguished from mere evidence of these facts or from conclusions of law. 2 Wait's Pr. 305-307. 28. State generally what facts must be set forth in a pleading? As the oiBce of a pleading is to present the cause of action •on one side, and the defense on the other, it is necessary that the pleader should set forth every fact which must be proved on the trial to maintain the action or support the defense. Gould's PI. 89 ; 2 Wait's Pr. 309. 29. In what manner may the defendant take advantage of a failure of the plaintiff to allege in his complaint facts sufficient to ■constitute a cause of action f The defendant may demur to the complaint and obtain judgment on the demurrer unless the complaint is amended; or he may wait until the cause is moved for trial and then move for a dismissal of the complaint for insufficiency ; or he may object on the trial to the introduction of evidence of any fact not alleged in the complaint, and more for a nonsuit at the close of the plaintiff's case. 2 Wait's Pr. 310-312 ; Baylies Trial Pr. 169. 30. Is it necessary to directly allege any fact necessarily implied ? It is not. Gould's PL 40 ; 2 Wait's Pr. 315. 31. Is it proper to insert in a complaint matter independent of ^68 Pleading. the cause of action, and which may show the plaintiff entitled to a provisional remedy ? It is not, as sucli matters have no place in a pleading. Elwood V. Gardner, 45 N. Y. 349. 32. Is it necessary to allege any fact in a pleading which need not he proved upon the trial f It is not. 2 Wait's Pr. 313. 33. Is it ever necessary to state in a pleading the conclusions of law which necessarily arise from the facts set forth? It is not. A statement of a conclusion of law is never a necessary part of a pleading. 2 Till. & S, Pr. 10 ; 2 Wait's Pr. 306. 34. Is it ever proper for the pleader to allege a conclusion of law unsupported by facts ? It is in exceptional cases, such as alleging the performance of conditions precedent, or the jurisdiction of a court or officer of special jurisdiction. 2 Wait's Pr. 325-32T. 35. State the provision of the Code in respect to pleading a judgment or other determination of a court or officer of special jurisdiction ? In such case it is not necessary to state the facts conferring jurisdiction, but the judgment or determination may be stated to have been duly given or made. If that allegation is controvert- ed the party pleading must on the trial establish the facts con-- ferring jurisdiction. Code of Civil Pro., § 532. 36. How may conditions precedent be pleaded ? In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting per- formance ; but the party may state generally that he or the per- son whom he represents duly performed all the conditions on his • part. If that allegation is controverted he must on the trial establish performance. Code of Civil "Pro., § 533. 37. Is hypothetical pleading allowable under the Code? It is not. Goodman v. Mobb, 41 Hun, 605. 38. What do you understand by matter of inducement ? ■Matter of inducement is that which is merely introductory Plkading. 265> to tlie essential ground or substance of the cause of action or defense, or explanatory of it, or of the manner in which it arose. Gould's PL 42; 2 Wait's Pr. 298. 39. Are matters of inducement proper or necessary in pleadings under the Code ? They are both proper and necessary where the matters so pleaded are not mere legal fictions. Gould's PI. 42, note ; 2 Wait's Pr. 298. 40. What do you understand hy matter of aggravation ? It is that whicli, in actions for forcible injuries, is intended to show the circumstances of enormity under which the principal wrong was committed. Gould's PI. 42. 41. What is surplusage? It is that which is impertinent or entirely superfluous, as- not being necessary either to the substance or form of pleading. Gould's PI. 43, 142. 42. ts it necessary^ in a complaint shoiving the indebtedness of the defendant to plaintiff, to allege non-payment, or that the right of action is not barred by the statute of limitations f It is necessary to allege non-payment, but not to anticipate the defense of the statute of limitations. Lent v. New York and Mass. By. Co., 130 N. Y. 504. 43. If a contract is set up in the complaint which would be void under the statute of frauds if not in writing, is it necessary for the plaintiff to allege that it was in writing ? It will not. For the purposes of the complaint the contract will be presumed to be in writing. Marston v. Swett, 66 N. Y. 206 ; Moak's Van Santford's PL 203. 44. In an action founded upon a violation of a general statute is it necessary to refer to the statute or in any way recite or men- tion it in the pleadings ? It is not. Facts which the court takes judicial notice of need not be pleaded. 2 Wait's Pr. 316. •• 45. S.OW may a private statute be pleaded? In pleading a private statute, or a right derived therefrom, 270 Pleading. it is sufficient to designate the statute by its chapter, year of passage and title, or in some other manner with convenient cer- tainty, without setting forth any of its contents. Code of Civil Pro. § 530; 2 Wait's Pr. 328. 46. What is the rule in respect to pleading the laws of other- States f When the laws of other States are depended upon to sustain. an action or defense, they must be pleaded as facts, as the court will not take judicial notice of the laws of other States. 2 Wait's Pr. 316. 47. What is the most important rule to he observed in respect to the mode or manner of stating facts f All matter incorporated in a pleading must be clearly and , distinctly stated so that the precise fiature of the charge or de- fense may be apparent to the court and to the adverse party.. Gould's PI. 71. 48. What remedy is given hy the Code against indefinite and uncertain pleadings f The Code provides that when one or more denials or allega- tions contained in a pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain by amendment. Code of Civil Pro., § 546; 2 Wait's Pr. 317. 49. Will a party he prejudiced on the trial hy a failure to move to make the pleading of his adversary more definite and certain hy amendment ? He will not. If the pleading is susceptible of two meanings^ that will be taken which is most unfavorable to the pleader. Olarlc V. Billon, 97 N. Y. 370. 50. What is the general rule of pleading in personal actions in- respect to allegations of time ? It is a general rule of pleading in personal actions that the time of every traversable fact must be stated ; or in other words, that every such fact must be alleged to have taken placa on some particular day. But the pleader will not be bound tO' Pleading. 271 prove at the trial that the event occurred at the time alleged. Gould's PI. 79 ; 2 Wait's Pr. 317. 51. When will it he sufficient to allege that one event was prior- to another without specifying the date of either ? "When the order in which events occurred is material only- tod the time of the occurrence of each is immaterial, it will be- sufficient to allege that a specified event was prior or subsequent to another specified event. 2 Wait's Pr. 318. 52. When is time material, and when must it be truly stated in a pleading P In pleading any written document, as a record, bill of ex- change, promissory note, etc., the day on which it is alleged to bear date is material and must be truly stated ; for although the^ date forms iio part of the contract it enters into the description of the instrument- and is the chief test in determining its identity.. Gould's PI. 82; 2 Wait's Pr. 818. 53. What was the old rule in regard to allegations of place in^ pleadings ? It was formerly a general rule of pleading that the place of every traversable fact, stated in the pleadings, must be distinctly alleged ; or, at least, that some certain place must be alleged for every such fact. Gould's PL 100. 54. When is it necessary to state the place at which an event oc- curred, in pleadings under the Code f Only when the averment of place is actually a material is- sue, or where such averment is necessary as a description to- identify some specified transaction. 2 Till. & S. Pr. 22 ; 2 Wait's. Pr. 318. 55. When is an allegation of place material? It is a general rule of pleading that, if the matters alleged are local in their nature, .the allegation of place, and proof of it,, is material and of the substance of the issue. Where a contract is sought to be enforced, which is void under the laws of this State, but valid where made, the place where the contract was made must be alleged and proved. So where a vendor agrees to sell and deliver at a certain place, and the vendee agrees to re- 272 Pleading. ceive and pay, an averment of readiness to perform at that place is indispensable, in an action for a breach of the agreement. So ■an averment of place may be material to show a right of action in a particular plaintiff, as, where a right of action is given to certain local officers for offenses committed within certain limits. Gould's PI. 101, note ; Stephens' PI. 288 ; 2 Wait's Pr. 318. 56. What is the object of introducing an allegation of value in a 'pleading? Allegations of value are introduced in pleadings in order that the pleadings may furnish a prima facie measure of damages. Allegations of this nature are not issuable. Gould's PL 173 ; 2 Wait's Pr. 387. 57. 'What degree of minuteness is required of the pleader in the statement of facts in a pleading ? Only that degree of minuteness is required in the statement of facts in a pleading as will clearly apprise the parties of the precise nature and extent of the charge or defense, and enable them to prepare for trial. 2 Till. & S. Pr. 23 ; 2 Wait's Pr. 319. 58. Are allegations of quantity essential in pleadings f It is seldom necessary that allegations in regard to quantity be made or proved, except where the subject of averment is a record, a written instrument, or an express contract. Gould's PI. 172, 173 ; 2 Wait's Pr. 319. 59. G-ive the reason why, in an action against an executor or administrator, the plaintiff is not required to allege the particulars relating to the appointment of such executor or administrator, while in an action hy an executor or administrator such allegations are required ? The distinction results from the familiar rule of pleading, that, where the matters in controversy are better known to the oppo- site party than to the pleader, less definiteness and certainty will be required. Stephens' PI. 370 ; Gould's PI. 171 ; 2 Wait's Pr. 320. 60. Is it necessary for a party to set forth, in a pleading, the Pleading. 273 items of an account upon which the cause of action or defense is Jounded ? It is not ; but the adverse party may, by a demand in writing, require that a copy of the account be served upon him within ten days after such demand. If such account is not furnislied within that time, the adverse party may obtain an order pre- -cluding the party pleading it from giving evidence concerning it on the trial. 2 Wait's Pr. 325 ; Code of Civil Pro., § 531. 61. What is the rule of the Code in relation to the pleadings in •an action or defense founded upon an instrument for the payment ing a resident is about to depart therefrom, and by reason of such non-residence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual. She may also be arrested in an action to recover damages for a wilful injury to person, character, or property. She cannot be arrested in any other action. Code of Civil Pro. % 653. iPflACTICE. 359 235. Can a person sued in a representati've capaciti/ be arrested in the action ? A person prosecuted in a representative capacity as heir, exe- •cutor, administrator, legatee, devisee, next of kin, assignee or trustee cannot be arrested except for his personal act. Code of Civil Pro. § 555. 236- Can an infant, lunatic or idiot he arrested under the Code ? Either may arrested, but a lunatic, idiot, or an infant under fourteen years of age may be discharged from arrest as a privi- leged person in the discretion of the court. Code of Civil Pro. §554. 237. What does the Code require as to the form and contents of an order of arrest ? It provides that the order must be subscribed by the plaint- iff's attorney, and, unless it is granted by the court, by the judge ; that it may be directed either to the sheriff of a particular county, ■or generally to the sheriff of any county ; that it must require the sheriff forthwith to arrest the defendant of he is found with- in his county, to hold him to bail in a specified sum, and to return the order and his proceedings thereunder as prescribed by law. Code of Civil Pro., § 561. 238. What in addition is required hy the general rules of prac- tice ? They require that the order of arrest shall briefly state the grounds upon which it is granted. Rule 13. 239. Where only can a sheriff make a legal arrest f A sheriff can make a legal arrest within the limits of Ms county only, and an arrest made by him outside of his county is Void. 1 Wait's Pr. 657. 240. In what actions can an order of arrest he granted hy a just- ice of the peace f An order of arrest cannot be granted by a justice of the peace except where the action is brought either to recover a fine ■or a penalty, or damages for a personal injury of which a justice ■of the peace has jurisdiction, or damages for an injury to property. 360 Practice. for misconduct or neglect in office or in a professional employ, ment, or for fraud or deceit ; or to recover for money received, or to recover a chattel, where it appears that the money was re- ceived, or that the chattel was embezzled or fraudulently misapj plied by a public officer, or by an attorney, solicitor or counselor,, 'f)i' by an officer or agent of a corporation or banking association^ an the course of his employment, or by a factor, agent, broker or other person in a fiduciary capacity. Code of Civil Pro., § 2895.. 241. Is it enough to entitle the plaintiff to the order that the ac- tion belongs to one of the classes above specified f It is not. It must also appear either that the defendant to- be arrested is anon-resident of the county, or that all the plaint- iffs are non-residents of the county, or that the defendant is about to depart from the county with intent not to return thereto. Code of Civil Pro., § 2894 ; 3 Wait's Law & Pr. (5th ed.) 141. SJ42. Is the issuing of the order discretionary with the justice? It is not. When a proper case is presented he must issu& the order. 3 Wait's Law & Pr. (5th ed.) 140 ; Code of Civil Pro., § 2896. ' 243. Can an order of arrest be issued by a justice of the peaca against a female defendant ? It cannot. Code of Civil Pro., § 2895. 244. What security is required by the Code as a condition of granting the order ? Before granting the order the justice must require a writ- ten undertaking to the defendant, on the part of the plaintiff, with one or more sureties, approved by the justice, to the effect th^t if the defendant recovers judgment the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least one liiindred dollars. Code of Civil Pro., § 2896 ; 3 Wait's Law & Pr. (5th ed.) 151. 245. What are the requirements of the Code as to the form and contents of the order ? The order must be subscribed by the justice and indorsed Peactice. 361 upon or attached to the summons. It must briefly recite the ground of arrest ; and must direct the constable who serves the summons to arrest the defendant ; to bring him forthwith before the justice ; and to notify the plaintiff of the arrest if he can do so with reasonable diligence. Code of Civil Pro., § 2897; 3 Wait's Law & Pr. (5th ed.) 154. 2'1:6- By whom is a requisition to replevy issued in an action to- recover a chattel in a court of record ? It is issued by the plaintiff's attorney but is deemed a mandate of the court. Code of Civil Pro., § 1694. 247. By whom is a requisition to replevy issued when the action is in a justice's court ? By the justice who issues the summons in the action. Code of Civil Pro., § 2921. 248. At what stage of the action may the requisition to replevy he issued where the action is brought in the Supreme Court f It may be issued with the summons, or at any time after- wards before the service of the defendant's answer, or if the de- fendant fails to appear or plead, and judgment is taken by de- fault, at any time before the entry of final judgment. Code of Civil Pro., § 1694. 249. At what stage of an action in a justice's court may the re- quisition to replevy be issued f At the time when the summons is issued but not afterwards. Code of Civil Pro., § 2920 250. If a person seeks by action in the Supreme Court to recover personal property wrongfully detained from him by another, is it necessary to accomplish this that he should replevy or attempt to replevy the property in controversy ? It is not necessary in the sense that a resort to this remedy is an essential part of the procedure in an action to recover the chattels. The principal object of the remedy is to prevent a dis- posal of the property claimed before a judgment can be recovered in the action. The plaintiff may proceed in the action andtre- cover therein the chattel or its value although he lias not re- quired the sheriff to replevy it, or the sheriff has not been able to replevy it. Code of Civil Pro., § 1718 ; 1 Wait's Pr. 711. 362 Practice. 251. Does a different rule prevail where the potion to recover the ■chattel is brought before a justice of the peace f It does not. The Code provides that where the summons has been personally served upon the defendant, or where he appears, the justice must proceed to hear and determine the action although the plaintiff has not required the chattel to be replevied or the constable has not been able to replevy it. Code of Civil Pro., § 2933 ; 3 Wait's Law & Pr. (5th ed.) 204. 352. What remedy has been substituted by the Code in theplace of what was known under the old practice as the writ of injunc- tion ? The writ of injunction as a provisional remedy was abolished by section 218 of the Code of Procedure and an injunction by order was substituted therefor. A temporary injunction, granted by order, is the equivalent remedy under the present statute. Code of Civil Pro., § 602. 253. What is the distinction between atemporary and afincfl or perpetual injunction f A temporary injunction is one that issues before judgment to restrain the defendant from the commission of certain specified acts until the decision of the action upon the hearing or until the further order of the court ; while a final injunction is one awarded by a decree or judgment of the court after a final hear- ing upon the merits. 3 Wait's Act. & Def. 681. 254. In what cases does the nature of the action determine the. right to a temporary injunction ^ When it appears from the complaint that the plaintiff demands and is entitled to a judgment against the defendant restraining the commission or continuance of an act, the com- mission or continuance of which, during the pendency of the ac- tion, would produce injury to the plaintiff, an injunction order may be granted to restrain it ; and the right to such an injunc- tion is said to depend on the nature of the action. Code of Civil Pro., § 603. 255. In what cases may a temporary injunction he granted wpon facts extrinsic of the right of action P , Peactice. 363 ' 1. Where it appears, by affidavit, that the defendant, during the pendency of the action, is doing, or procuring, or suffering to be done, or threatens, or is about to do, or to procure, or suffer to be done, an act, in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be- granted to restrain him therefrom. 2, Where it appears, by affidavit, that the defendant during the pendency of the action, threatens, or is about to remove, or to dispose of his property, with intent to defraud the plaintiff, an injunction order may be granted, to restrain the removal or dis- position. Code of Civil Pro., § 604. 256. In what cases can an injunction he granted only hy the general term of the supreme court f When a duty is imposed by statute upon a State officer or board of State officers, and the injunction is sought to restrain him or them, or a person employed by hhn or them, from the performance of that duty or to prevent the execution of the statute. Code of Civil Pro., § 605. 257. By whom may it he granted in other cases ? Except where it is otherwise specially prescribed by law an injunction order may be granted by the court in which the action is brought, or by a judge thereof or by any county judge. Code of Civil Pro., § 606 ; 2 Wait's Pr. 77. 258. Who may grant an injunction restraining the officers of a domestic corporation from transferring the property and effects of the corporation during the pendency of an action for its dissolu- tion ? Such an injunction can be granted only by the court. Code of Civil Pro., § 1787. 259. What proof is necessary to procure an injunction ? The order may be granted where it appears to the court or judge by affidavit, that sufficient grounds exist therefor. Code of Civil Pro., § 607 ; 2. Wait's Pr. 81. 260. What is included in the word " affidavit " as used in the ■Code? The word " affidavit " includes a verified pleading in an 364 Peactice. action, or a verified petition or answer in a special' proceeding. Code of Civil Pro., § 3343. 261. At what stage of the action may the order he granted? The order may be granted to accompany the summons, or at any time after the commencement of the action and before final judgment. Code of Civil Pro., § 608 ; 2 Wait's Pr. 76. 5i62. Should the application for an injunction he made upon notice, or may it he made ex parte ? When the application is made at general term, or after the defendant has answered, the application must be m^de on notice. Jn other cases the order riiay be granted upon or without notice, in the discretion of the court or judge. Code of Civil Pro., §§ 605, 609. 263. Where the application is made upon notice or upon an order to show cause, how may the rights of the moving party he pro- tected between notice and the hearing and decision of the appli- cation f The court or judge may prevent the defendant from doing any act in the interim prejudicial to the plaintiff's rights by en- joining the defendant imtil the hearing and decision of the appli- cation. Code of Civil Pro. § 609. ( 264. What special provision is made by the Code in respect to the granting of injunctions in real actions ? It provides in substance that if during the pendency of an action of ejectment, or for partition, dower, foreclosure, waste, nuisance, etc, the defendant commits waste upon, or does any other damage to the property in controversy, the court, or a judge thereof, may upon the application of the plaintiff, and due proof of the facts by affidavit, grant, without notice or security, an order restraining the defendant from the commission of any further waste upon or damage to the property, and that disobedir ence to such order may be punished as a contempt of court. Code of Civil Pro., § 1681. 265. How must an injunction order he served? If it was granted by the court, it must be served by the delivery of a certified copy. If it was granted by a judge it Pbactice. 365 must be served by showing the original order and delivering a copy. Service on a corporation must be made in the same man- ner as required for personal service of a summons upon a cor- poration. Copies of the papers upon which the order was granted must be delivered with a copy of the order. Code of €ivil Pro. § 610. See id., § 2452. 266. Whenmay a party apply ex parte for an order vacating or modifying an injunction order ? When the injunction order was granted ex parte, and the «.pplication to vacate or modify it is made on the original papers to the judge who granted it or who held the term of court at which it was granted, or to the general term of the court. Code cf Civil Pro., § 626. 267. Can the application to vacate or modify the injunction order he made ex parte to any judge or term other than as mentioned in the preceding answer ? The application to vacate or modify the order cannot be made ex parte to any other judge or term unless the applicant produces proof by affidavit, that, by reason of the absence or other disabil- ity of the judge who granted the order,, the application cannot be made to him, and that the applicant will be exposed to great injury by the delay required for an application upon notice. Code cf Civil Pro., § 626. 268. When and where may a party apply upon notice for an •order vacating or modifying an injunction order f Where the injunction order was granted without notice, or where it was granted upon notice with leave to apply to vacate or modify it, the application to vacate or modify the order may be made, on notice, to the judge who granted it, or to the •court, at a term where a contested motion in the action maj' be heard. Code of Civil Pro., § 627. 269. Upon what papers may an application to vacate or modify ^n injunction order be made or opposed ? The application may be founded upon the papers upon which the injunction was granted or upon proof by affidavit on the part of the defendant, or both. If the application is founded upon proof on the part of the defendant, it may be opposed by new 366 Practice. proof, by affidavit, on the part of the plaintiff tending to sustain the injunction. Code of Civil Pro., § 627. 270. In what action may a warrant of attachment he granted f It may be granted in an action to recover a sum of money only as damages either (1) for breach of contract, express or im- plied, other than a contract to marry, or (2) for a wrongful con- version of personal property, or (3) for any other injury to personal property in consequence of negligence, fraud, or other wrongful act. Code of Civil Pro., § 635. 271. What must be shown to procure the warrant? To entitle the plaintiff to such a warrant, he must show, by affidavit, to the satisfaction of the judge granting the same : 1. That one of the causes of action above specified exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all coun- ter-claims known to him. 2. That the defendant is either a foreign corporation or not a resident of the State ; or, if he is a natural person and a resi- dent of the State, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent ; or, if the defendant is a natural person or a domestic corporation, that he or it has removed, or is about to remove, property from the State, with intent to defraud his or its creditors ; or has assigned, dis-' posed of, or secreted, or is about to assign, dispose of, or secrete property, with the like intent. Code of Civil Pro., § 636. 272. In what other ease may a warrant of attachment be granted f A warrant of attachment, against the property of one or more defendants in an action, may also be granted, upon the applica- tion of the plaintiff, where the complaint demands judgment for a sum of money only ; and it appears, by affidavit, that the ac- tion is brought to recover money, funds, credits, or other prop- erty, held or owned by the State, or held or owned, officially or otherwise, for or in behalf of a public or governmental interest, by a municipal or other public corporation, board, officer, custodian, agency or agent,, of the State, or of a city, County, town, village Practice. 367 or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of ; or in the obtaining, reception, pay- ment, conversion, or disposition of which, without right, he has aided or abetted ; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same ; or the aiding or abetting thereof. In order to entitle the plaintiff to a warrant of attachment, in such a case, he must show, by aiBdavit, to the satisfaction of the judge granting it, that a sufBcient cause of ac- tion exists against the defendant, for a sum, stated in the affi- davit. Code of Civil Pro., § 637. 273. When and hy whom may a warrant of attachment he granted ? The warrant may be granted by a judge of the court, or by any county judge, to accompany the summons, or at any time before the commencement of the action, and before final judg- ment therein. Code of Civil Pro., § 638. 274. What are the requirements of the Code as to the form and contents of the warrant ? The warrant must be subscribed by the judge and the plaint- iff's attorney, and must briefly recite the ground of the attach- ment. It may be directed, either to the sheriff of a particular county, or, generally to the sheriff of any county. It must require the sheriff to attach and safely keep, so much of the property, within his county, which the defendant has, or which he may have, at any time before final judgment in the action, as will satisfy the plaintiff's demand with costs and expenses. The amount of the plaintiff's demand must be specified in the war- rant, as stated in the affidavit. Warrants may be issued at the same time, to sheriffs of different counties. Code of Civil Pro., § 641. 275. What real property may he levied on under a warrant of attachment ? Any real property of the defendant within the county, not exempt from levy and sale under execution, including &uj interest in real property, either vested or not vested, which is capable of being aliened by the defendant. Code of Civil Pro., §645. 308 Practice. 276. How may a sole defendant obtain the discTiarge of an at- tachment ? In two ways : 1. By motion founded upon affidavits, or up- on the plaintiff's application and proceedings; 2. By giving security for the payment to the plaintiff of the amount of any judgment which may be recovered in the action against the de-^ fendant not exceeding a specified sum, with interest. Code of Civil Pro., §§ 682, 687, 688. 277. "When may a plaintiff he compelled to elect between an order of arrest, an injunction, and an attachment ? When a plaintiff applies for all or any two of these remedies in the same action, against the same defendant, and it satisfac- torily appears that under the particular circumstances of the case two or all of them are not necessary to the plaintiff's security, it is discretionary with the court or judge to require the plaintiff to elect between them. Code of Civil Pro., § 719. 278. Within what time must a court or judge finally decide an application to obtain, vacate, modify, or set aside an order of arrest, injunction order or warrant of attachment ? Within twenty days after the application is submitted for decision. Code of CivU Pro., § 719. 279. When is a defendant entitled to the same provisional reme- dies as the plaintiff?. Where the defendant interposes a counter-claim and there- upon demands an affirmative judgment against the plaintiff, his right to a provisional remedy is the same as in an action brought by him against the plaintiff, for the cause of action stated in the counter-claim, and demanding the same judgment. And for the purpose of applying to such a case the provisions of the Code, the defendant is deemed the plaintiff, the plaintiff is deemed the defendant, and the counter-claim so set forth in the answer is deemed the complaint. Code of Civil Pro., § 720. 280. In what cases may a receiver he appointed before final judgment in an action in the Supreme Court, a superior city courts or a county court ? In addition to the cases wliere the appointment of a receiver Practice. 369 is specially provided for by law, a receiver of property which is the subject of an action in either of those courts may be ap- pointed by the court before final judgment on the application of a party who establishes an apparent right to or interest in the property, where it is in the possession of the adverse party and there is danger that it will be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed. Code of Civil Pro., § 713. 281. Is it necessary to give notice of an application for the ap- pointment of a receiver in an action before Judgment ? Notice must be given to the adverse party unless he has failed to appear in the action, and the time limited for his appear- ance has expired. But where an order has been made for the service of the summons by publication, the court may, in its dis- cretion, appoint a temporary receiver, to receive and preserve the property, without notice, or upon a notice given by publication or otherwise as it thinks proper. Code of Civil Pro., § 714. 282. In iohat cases, and for what purpose may the court appoint a receiver of property by or after the final Judgment in an action in the Supreme Court, a superior city court, or a county court ? A receiver of property which is the subject of an action in ■either of those courts may be appointed by the court (1) by or after final judgment, to carry the judgment into effect, or to dis- pose of the property according to its directions ; or (2) df ter final ^judgment, to preserve the property during the pendency of an appeal ; or, (3) in the cases where the appointment of a receiver, by or after judgment, is specially provided for by law. Code of Civil Pro., § 713. 283. In what cases may the court direct that money or property he paid into or deposited in court, or be delivered to another party ? Where it is admitted, by the pleading or examination of a party, that he has, in his possession or under his control, money, or other personal property capable of delivery, which, being the siibject of the action or special proceeding, is held by him as trustee for another party, or which belongs or is due to another party, the court may, in its discretion, grant an order, upon notice, that it be paid into, or deposited in court, or delivered to 24 370 Practice. that party, witli or without security, subject to the further direction of the court. Code of Civil Pro., § 717. 284. What is atrial? A trial is the judicial examination of the issues between the parties, whether they are issues of law or of fact ; and there can be no trial until issues have actually been formed. 2 TiU. & S. Pr. 424 ; 3 Wait's Pr. 1 ; BayUes' Trial Pr. 6. 285. Is the regular argument of a demurrer a trial? It is. 2 Till. & S. Pr. 425. 286. Where there are issues of law and of fact joined in one action, which of the issues must he first tried? The issues of law, unless the court otherwise directs. Code of Civil Pro., § 966. 287. How does an issue of law arise? An issue of law arises only upon a demurrer. Code of OivU Pro., § 964. 288. When does an issue of fact arise ? 1. Upon a denial, contained in the answer, of a material allegation of the complaint ; or upon an allegation, contained in the answer, that the defendant has not sufficient knowledge or- information to form a belief, with respect to a material allegation of the complaint. 2. Upon a similar denial or allegation, contained in the reply,, with respect to a material allegation of the answer. 3. Upon a material allegation of new matter, contained in the answer, not requiring a reply ; unless an issue of law is joined, thereupon. 4. Upon a material allegation of new matter, contained in the reply ; unless an issue of law is joined thereupon. Code of Civil Pro., § 964. 289. How must an issue of law be tried ? An issue of law must be tried by the court unless it is referred. Code of Civil Pro., § 969. Practice. 371 290. In what actions must an issue of fact he tried hi/ a jury unless a jury trial is waived or a reference is directed? 1. An action in which the complaint demands judgment for ,a sum of money only. 2. An action of ejectment ; for dower ; for waste ; for a nuisance ; or to recover a chattel. 3. An action by the people to annul a corporation. Code of Civil Pro., §§ 968, 1800 ; Baylies' Trial Pr. 9. 291. In what cases may a party have a jury trial on issues of fact as a matter of right on application to the court therefor? In an action not specified in the preceding answer, where a party is entitled by the constitution, or by express provision of law, to a trial by jury of one or more issues of fact. Code of Civil Pro., § 970 ; Baylies' Trial Pr. 9. 292. What provision is there in the constitution of this State in retpect to the right to trial hy jury ? The constitution provides that " the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate for- ever ; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law." Const., Art. 1, §2. 293. State generally what actions were, at the time of the adop- tion of the constitution, tried hy a jury. All common law actions were so tried, and may be so tried as a matter of right at the present time. This includes any and all common law actions sounding in tort, and any and all com- mon law actions arising on contract except where the examination of a long account is involved. Baylies' Trial Pr. 10. 294. Is a jury trial ever a matter of right where the action is Irought to ohtaiyi equitahle relief only ? It is not. Baylies' Trial Pr. 10. 295. £[ow is an issue of fact in an action of partition triable ? It is triable by a jury. Code of Civil Pro., § 1544. 296. What provision is made hy the Code in respect to the trial hy jury of the issues in an action for divorce ? The Code provides that if the answer puts in issue the alle- 372 Peactice. gation of adultery, the court must, upon the application of either party, or it may of its own motion, make an order directing the trial by a jury of that issue. Code of Civil Pro., § 1757. 297. In what cases is the trial of specific questions of fact hy a jury discretionary with the court ? In actions wherein the parties are not entitled as of right to a trial by jury. Code of Civil Pro., § 971. 298. Where the court has ordered specific questions of fact to be tried hy a jury, and a jury trial has been had, and other issues of fact remain undetermined, how are they disposed off The remaining issues must be tried by the court or by a referee. Code of Civil Pro., § 972 ; Baylies' Trial Pr. 273. 299. Is the finding of a jury upon specific questions of fact sub- mitted by the court conclusive ? If the questions so tried arose upon issues of fact which as a matter of statutory or constitutional right are triable by jury, the findings of the jury upon those questions are conclusive in the action, unless the verdict is set aside or a new trial is ordered. In other cases, the findings are not conclusive, and the court may either adopt, modify or disregard them,' or set them aside and order a new trial. Baylies' Trial Pr. 66. 300. Is it necessary that all the issues raised by the pleadings should be tried f It is not unless they are all material issues. An issue need not be tried unless its determination is necessary to enable the court to render the appropriate judgment. Code of Civil Pro., §975. 301. How may a party waive his right to a jury trial? A party may waive his right to the trial of the issue of fact, ' by a jury, in any of the following modes : 1. By failing to appear at the trial. 2. By filing vi^ith the clerk a written waiver, signed by the attorney for the party. 3. By an oral consent in open court, entered in the minutes. 4. By moving the trial of the action, without a jury ; or, if the adverse party so moves it, by failing to claim a trial by a Practice. 373 jury< before the production of any evidence upon the trial. Code of Civil Pro., § 1009 ; 3 Wait's Pr. 213 ; Baylies' Trial Pr. 13. 302. If the parties waive a trial hy jury of the issues of fact in an action triable hy jury, how must those issues he tried ? They must be tried by the court without a jury, or must be referred. If the case is not one in which a reference can be ordered, the issues must be tried by the court, subject, however, to the qualification that in actions other than to recover dam- ages for a breach of contract, the court may refuse to dispense Vith a jury, and thus annul the waiver of the parties. Code of Civil Pro., § 1008. 303. In what cases may the court, of its own motion, or upon the application of either party without the consent of the other, direct a trial of the issues of fact hy a referee? A compulsory reference of all the issues may be ordered by the court where the trial of an action on contract will require the examination of a long account on either side, which is the immediate object of the suit or ground of the defense, and will not require the decision of difficult questions of law. Code of Civil Pro., § 1013 ; Baylies' Trial Pr. 16-19 ; 3 Wait's Pr. 248. 304. In what cases may the court direct a compulsory reference (f less than all the issues in an action ? In an action triable by the court without a jury a reference may be ordered to decide the whole issue, or any of the issues, or to report the referee's finding upon one or more specific ques- tions of fact involved in the issue. Code of Civil Pro., § 1013. 305. I'or what other purposes may the court order a reference without the assent of both parties ? The court may, of its own motion, or upon the application of either party, without the consent of the other, direct a refer- ence to take an account, and report to the court thereon, either with or without the testimony, after interlocutory or final judg- ment, or where it is necessary to do so, for the information of the court ; and also to determine and report upon a question of fact, arising in any stage of the action, upon a motion, or otherwise, except upon the pleadings. 374 Pbacticb. 306. What is the limit of the right of the parties to refer the issues in an action hy mutTial consent P The parties to an action have an absolute right to refer any or all the issues therein, whether of law or fact, by a consent manifested by a written stipulation signed by their attorneys and filed with the clerk, except (1) where the action is to annul a marriage, or to obtain a divorce or separation, or (2) is brought against a corporation, by a person other than the attorney-general, , to obtain a dissolution thereof, the appointment of a receiver of its property, or the distribution of its property, or (3) where a de- fendant who will be affected by the result of the trial is an in- fant. In either of the excepted cases the court may in its dis- cretion grant or refuse a reference notwithstanding a stipulation of the parties for a reference, and if it grants a reference, must designate the referee. Code of Civil Pro., §§ 1011, 1012. 307. What is meant by a long account, such as will authorize the court to order a reference? Properly speaking, an account is a statement of commercial or pecuniary transactions between two or more parties, accruing at various time. It has been held that a bill of fifty different articles delivered at one time is not an account at all ; and neither is a single bill of lading, containing a number of items. Four items do not constitute a long account, nor yet seven items, where all the transactions occurred on one or two days. 2 Till. & S. Pr. 620; Baylies' Trial Pr. 19; 3 Wait's Pr. 260. 308. Is an action of tort referable under the Code ? It is referable by consent equally with an action on con- tract ; as, for example, an action upon a fraud. But such an action is not otherwise referable, as the right of the court to direct a reference, without the consent of all the parties, is limited to actions on contract which involve the examination of a long account. 3 Wait's Pr. 251, 262. 309. When is the proper time to make application for the order of reference ? r Application for the order ought not to be made until the issue is joined, and the cause is ready for trial. If the action is Practick. 375 not in readiness for trial, it is not referable. Baylies' Trial Pr. 69 ; 3 Wait's Pr. 259. 310. Upon what papers should an application for a compulsory reference be made ? The motion may be made upon affidavits alone or upon an affidavit and the pleadings. The affidavit should show that all the issues have been joined, but need not state the place of trial, nor need it allege that no difficult questions of law are involved. If the motion is made upon an affidavit only, it should state the nature of the action and should show that the trial of the issues will require the examination of a long account, and how and in what way such examination will be necessary ; and if the affi- davit is not made by the party, an excuse why it is not made by him should be given. 3 Wait's Pr. 261 ; Baylies' Trial Pr. 70, 71. 311. In what manner are referees appointed on consent of the farties ? Where the parties consent to refer, their attorneys enter into a stipulation for a reference, either to a person or persons desig- nated in the stipulation, or to a person to be designated by the court, and file the stipulation with the clerk. If the stipulation names the referee, the clerk must enter an order of course refer- ring the issue or issues for trial to that person only. If the stip- ulation does not name the referee, he may be designated by the ■court on motion of either party. Code of Civil Pro., § 1011; Baylies' Trial Pr. 67. 313. How many referees may he appointed? Where the court is authorized to appoint a referee, it may in its discretion appoint either one or three ; and where a reference is made by consent of the parties, they may select any number of referees not exceeding five. Code of Civil Pro., § 1025. 313. What are the necessary qualifications of a referee ? A referee, appointed by the court, must be free from all just objections ; and no person shall be so appointed, to whom all, the parties object, except in an action to annul a marriage, or for a divorce, or a separation. A judge cannot be appointed a referee, in an action brought in the court, of which he is a judge, except 376 Pbactice. by the written consent of the parties ; and, in that case, he can- not receive any compensation as referee. Code of Civil Pro., § 1024. 314. When may an action he regularly brought to trial ? An action must not be brought to trial until all the defend^ tints, whose presence is necessary to a proper decision of the cause, have been served with the summons, or have appeared iri the action ; nor until they have all answered, or their time for answering has expired ; nor until it is in a situation for final judgment between all the parties. Till. & S. Pr. 425. 316. When and by whom may a notice of trial he served ? Either party may serve a notice of trial at any time after the joinder of issue and at least fourteen days before the com- mencement of the term. If the service of the notice is by mail,, it must be made not less than sixteen days before the day of trial including the day of service. Code of Civil Pro., §| 798, 977. 316. Where the trial is to he had at the Circuit, how do the parties proceed to cause the action to he placed upon the cal- endar f The party serving the notice of trial must file with the clerk, at least twelve days before the commencement of the term, a. note of issue, stating the title of the action, the names of the at- torneys, the time when the last pleading was served, the nature of the issue whether of fact or of law, and if an issue of fact, whether it is triable by a jury or by the court without a jury. The clerk will thereupon enter the cause upon the calendar ac- cording to the date of issue. Code of Civil Pro., § 977. 317. What will he the effect of an omission to file a note of issue f The cause will not be upon the calendar and cannot be moved for trial. Baylies' Trial Pr. 128. 318. What papers must he furnished to the court on the trial, and by whom must they be furnished ? Where the issue is brought to trial by the plaintiff, he must iurnish the court with copies of the summons and pleadings, and Pbactice. 377- of the offer, if any has been made. Where the issue is brought to trial by the defendant, and the plaintiff does not furnish those papers, they must be furnished by the defendant. Code of Civil Pro., § 981. 319- What is the requirement of the general rules of practice as to the copy pleadings furnished to the court f It is made the duty of the attorney by whom the copy plead- ings are furnished for the use of the court on a trial to plainly designate on each pleading the part or parts thereof claimed to be admitted or controverted by subsequent pleadings. Rule 20. 330. What are the qualifications of a trial juror as fixed hy statute ? In order to be qualified to serve as a trial juror in a court of record, a person must be (1) a male citizen of the United States and a resident of the county, (2) not less than twenty-one nor more than sixty years of age, (3) assessed for personal prop- erty belonging to him in his own right to the amount of $250, or the owner of a freehold estate in real property situated in tlie county belonging to him in his own right of the value of $150, or the husband of a woman who is the owner of a like free- hold estate belonging to her in her own right, (4) in the posses- sion of his natural faculties and not infirm or decrepit, (5) free from all legal exceptions, of fair character, of approved integrity, of sound judgment, and well informed. Code of Civil Pro., § 1027. 321. In what cases will a special or struck jury he summoned? When it appears to the court that a fair and impartial trial of an issue of fact, triable by a jury, joined in an action pending in the Supreme Court or in a superior city court cannot be had without a struck jury, or that the importance or intricacy of the case requires such a jury. Code of Civil Pro., § 1063. 322. State briefly the mode of selecting a special or struck jury ^ The clerk selects from the jury list the names of forty-eight persons whom he deems most indifferent between the parties and best qualified to try the issue, and makes and certifies a list of those names ; the parties, or their attorneys or counsel, then alternately strike one name from the list until each party has 378 Pkactice. stricken out twelve names ; the clerk then makes a list of the names of the twenty-four persons not stricken out, certifies it, and delivers it to the sheriff, who notifies the persons named in the list ; and from the persons so notified and attending a jury is formed for the trial as in ordinary cases. Code of Civil Pro., §§ 1065, 1066, 1067. 323. What is a foreign jury, and in what cases will it he granted ? A foreign jury is one drawn from a county other than that in which the trial is had, and it will not be granted except iu extreme cases. The provision made by the Code for changing the place of trial, in a proper case, appears to remove all possible reason for retaining this proceeding in our present practice. 2 Till. & S. Pr. 462 ; 3 Wait's Pr. 102. 324. When is the proper time for challenges to he made to the jury f On the appearance of a full jury, but not before, either party may challenge them, or any of them, for cause. 1 Burr. Pr. 454 ; 3 Wait's Pr. 103, 107. 325. What is meant hy a challenge to the array f A challenge to the array is an objection to all the jurors leturned by the sheriff collectively ; and is founded on some partiality or default in the officer who summoned the jurors, or •drew their names. A challenge to the array cannot be made after the jury has been impaneled and sworn. 1 Burr. Pr. 463, 454; 2 Till. & S. Pr. 462, 463; 3 Wait's Pr.l03; Baylies' Trial Pr. 163. 326. What is meant hy a challenge to the polls, and of how many classes do these challenges consist? Each juror may be objected to on grounds personal to him. Such objections are called challenges to the polls. These chal- lenges consist of three classes : 1. Challenges for principal cause ; 2. Challenges for favor ; 3. Peremptory challenges. 2. Till. & S. Pr. 463 ; 1 Burr. Pr. 454 ; 3 Wait's Pr. 104. 327. What is a challenge for principal cause? A challenge for principal cause is one in which the reason Pkactice. 379 assigned is so strong that, if the facts alleged are true, it neces- sarily follows that the juror is not fit to try the issue. 1 Burr. Pr. 454. 328. nhat is a challenge for favor ? A challenge for favor is one in which the facts alleged cs tablish only a probability that the juror may not be impartial iu his judgment, and upon consideration of which facts the juror is to be admitted or rejected as the question of partiality may be ■determined. 1 Burr. Pr. 454. 329. What is meant ly a peremptory challenge ? A peremptory challenge is the right which the law gives for ■setting aside a person without giving any reason whatever, ex- cept the will of the challenging party. 330. Howmany peremptory challenges are allowed to each party •on the trial of an issue of fact in a civil action f Only two. Code of Civil Pro., § 1176. 331. What are some of the grounds of challenge for priwA/pal cause ? Relationship between the juror and a party by consanguinity or affinity, if within the sixth degree ; that an action is pend- ing between the juror and the party challenging that implies ill will, malice or revenge, such as slander, assault and battery or the like ; or that the juror is a tenant of either of the parties to the Suit, and other matters importing absolute bias or favor. Baylies' Trial Pr. 174, 165. 332. Give some instances where the challenge can he for favor only ? Among these are : Where the objection is that the juror is indebted to one of the parties ; or that he is his fellow-servant, or a member of the same club or society ; or is on terms of inti- macy with him ; or that he is, by the nature of his business, likely to be often involved in controversies of the same nature ; •or that he has a dispute of any kind with one of the parties ; or that he has expressed or formed a hypothetical opinion on the case. 2 Till. & S. Pr. 465 ; 3 Wait's Pr, 105 ; Baylies' Trial Pr. 165. 380 Peactice. 333. How are challinges tried under the Code ? They are tried and determined by the court. Code of Civil Pro. § 1180. 334. Which of the parties to the action is entitled to begin, on the trial ? The party upon whom the affirmative of the issue lies is en- titled to begin, and he may be compelled to begin against his. will, although in general, it is considered a privilege to be al- lowed to open the case. 2 Till. & S. Pr. 468 ; 3 Waifs Pr. Ill ; Baylies' Trial Pr. 170. 335. Assuming that the plaintiff is to begin, what is the first step to be taken by his counsel f His counsel will proceed to open the ease to the jury, stat- ing the substance of the issue and the nature of the evidence which he expects to adduce ; and he may state the nature of the defense, so far as it is necessary to show the precise issue. As soon as he has finished his address to the jury, he calls his wit- nesses, exhausts all the testimony in support of the issue on his side, and then rests. 2 Till. & "s. Pr. 471, 472 ; 3 Wait's Pr. 124; Baylies' Trial Pr. 172. 336. After the plaintiff has rested his case, what steps are taken by the defendant ? After the plaintiff has put in his evidence and rested, the defendant, unless he moves for and obtains a nonsuit, or a dis- missal of the complaint, states briefly the nature of the defense to the jury, after which he calls his witnesses and goes through the same process with them as the plaintiff has done, subject to the same rules. 2 Till. & S. Pr. 471, 472 ; 3 Wait's Pr. 125. 337. When are nonsuits said to be voluntary, and when are they said to be involuntary or compulsory ? A nonsuit is voluntary when the plaintiff by his own act causes a dismissal of the action ; it is compulsory when the com- plaint is dismissed against his will on motion of the adverse par- ty, or by direction of the court on its own motion. 3 Wait's Pr. 156. 338. When may the defendant's motion for a nonsuit be made? A defendant may move for a nonsuit when the plaintiff rests Practice. 381 or he may give testimony and rest, and then move for a nonsuit; or he may move upon the whole evidence after both parties have rested. Baylies' Trial Pr. 224. 339. When is it the duty of the court to nonsuit a plaintiff? It is the duty of the court to nonsuit a plaintiff when the evidence will not authorize a jury to find a verdict for him, or where the court would set it aside, if so found, as contrary to evidence. Baylies's Trial Pr. 218, 219. 340. Can the plaintiff be nonsuited on account of defects in his pleadings ? Technically speaking, he cannot. But, under the Code, the complaint may be dismissed on the trial, if it does not state a cause of action, and the distinction between a dismissal of the complaint and a nonsuit is, practically, merely a verbal one. 2 Till. & S. Pr. 4620 ; Baylies' Trial Pr. 169. 341. In what case may the plaintiff he allowed to withdraw a juror ? It sometimes happens that unexpected difficulties arise upon the trial which makes it undesirable to proceed, and which are, nevertheless, not entirely fatal to the plaintiff's claim. In such case the judge may, in his sound discretion, whether with or witli- outthe consent of the defendant, allow the plaintiff to withdraw a juror, and order the cause to be retained upon the calendar. 2 Till. & S. Pr. 480. 342. Can a plaintiff submit to a nonsuit after the cause has been committed to the jury to consider the verdict ? He cannot. Code of Civil Pro., § 1182. 343. What is the main purpose or object of the judges charge to the jury ? It is to separate the questions of law from the matters of fact, and to present an impartial view of the whole case to the jury, so that they shall have a clear understanding of what they are called upon to decide, and the principles upon which they should act. 2 Till. &. S. Pr. 482; 3 Wait's Pr. 176. 344. Is the judge bound to charge the jury without being re- quested to do so f He is not ; although it is an invariable practice for the judge 382 Pbacticb. to charge the jury without being requested. 3 Wait's Pr. lYS^ 179. 345. After heing charged by the judge, what then does the jury do ? They proceed to consult upon their verdict. This they may do in their box in court, but if they cannot agree at once they are sent out by the court in charge of an officer, who is sworn to keep them, without any intermission, refreshment, fire or light, other than such as may be allowed by the court, and without communication with any other person, until they agree upon their verdict. 2 Till. & S. Pr. 486 ; 3 Wait's Pr. 184. > 346. May not the judge visit the jury during their retirement for consultation ? He may, if requested by the jury to do so, for the purpose of instructing them upon any question of law, provided he is accompanied by the counsel for all the parties. But the usual and more correct practice in such cases is to recall the jury into court, and there give them such instructions as they require, in the presence of counsel. 2 TiU. & S. Pr. 486 ; 3 Wait's Pr. 184. 347. Is it error for the court to permit the jury, when they retire for deliberation, to take with them documents and papers read on the trial? It is not; and though they have no right to do so, without permission, it seems that even their doing so would not affect the verdict. Nor will a verdict be set aside on account of the jury having taken with them a paper not gi\en in evidence, if it is perfectly clear that it did not influence their verdict. 2TilL & Pr. 487 ; Baylies' Trial Pr. 241 ; 3 Wait's Pr. 184. 348. In what cases may the judge direct the jury to find a ver- dict in accordance with his views of the evidence f He may so direct the jury, where the undisputed evidence is all one way, or where there is such a preponderance of evi- dence one side that a verdict to the contrary would be set aside as against evidence. But unless the evidence is thus conclusive, the judge is not at liberty to give the jury a positive direction as to their verdict. Baylies' Trial Pr. 228, 229. Pbactice. 38S 349. Is a judge at liberty to keep a jury together until they shall agree upon a verdict f No ; but he may detain them for so long a time as in his judgment there is any reasonable prospect of their agreeing. He has no right to threaten or intimidate them in order to affect their deliberations. Baylies' Trial Pr. 244. 360. May the jury decide upon a verdict hy lot ? No ; they are not at liberty to adopt any mode of deciding upon their verdict, which avoids or abridges the exercise of their individual judgment 2 Till. & S. Pr. 488 ; 3 Wait's Pr. 185^ 186. 351. What is the distinction between a "general" and a " special " verdict ? A general verdict is that by which the jury pronounce gen- erally upon all or any of the issues, either in favor of the plaint- iff or defendant. A special verdict is that by which the jury find the facts only, leaving the court to determine which party is entitled to judgment. Code of Civil Pro., § 1186 ; 3 Wait's Pr. 195. 352. "What is a sealed verdict? I If the jury are unable to agree upon their verdict by the time the court adjourns, it is usual for the judge to direct the jury to render a sealed verdict. Where this is done, the jury agree upon their verdict, reduce it to writing, seal it up with care, and deliver it to the officer in charge of them, after which they may separate without waiting for the re-opening of court. 1 Burr. Pr. 242, 2 Till. & S. Pr. 491 ; 3 Wait's Pr. 192. 353. Is a sealed verdict more binding upon the jurors than an ^ral one ? It is not. Any of the jurors may change their minds before it is entered, and a single dissent nullifies it. And such a ver- dict, like an oral one, is of no force until received and entered by the court. 2 Till. & S. Pr. 492 ; 3 Wait's Pr. 192. 354. How must the verdict be delivered f It must be delivered in open court by the foreman of the jury, in their presence ; and this rule applies to a sealed verdict» ' 384 Practice. as well as an oral one. Upon the announcement of the verdict by the foreman, any of the jury may dissent, and it is then no ■ verdict. 2 Till. & S. Pr 492 ; 3 Wait's Pr. 192. 355. By whom and how is the verdict entered ? It is the duty of the clerk to enter the verdict on the minutes of the court, together with any special findings of fact, and he reads it, as recorded, to the jury, calling upon them to hearken to their verdict as recorded by the court, and adding, " and so say you all." This is the last opportunity for jurors to dissent. Baylies' Trial Pr. 245. 356. When may the judge direct a verdict subject to the opinion of the court f The judge may direct such verdict, when, upon a trial, the case presents only questions of law. Code of Civil Pro., § 1185 ; Baylies' Trial Pr. 232. 357. Where should a motion for judgment on such verdict he made ? It should be made at the General Term. Code of Civil Pro., § 1234. 358. Is such a verdict necessarily conclusive and final until re- viewed at the Greneral Term ? It is not. The judge holding the trial term may set aside the verdict at the same term, and direct judgment to be entered for either party with like effect and in like manner as if such a direction had been given at the trial. Code of Civil Pro., § 1185. 359. Where double, treble or other increased damages are given hy statute, is it the province of the jury to increase the damages at the statutory rate and render their verdict for the full amount f It is not. Single damages only are to be found by the jury, except where the statute prescribes a different rule, and the sum so found must be increased by the court and judgment rendered acodrdingly. Code of Civil Pro., § 1184. 360. In what actions are treble damages recoverable? In an action for the wrongful cutting, etc., of trees ; in an Practice, 385' action for forcible entry and detainer ; in an action for suing, etc., in the name of another ; and in an action to recover back illegal fees, etc. Code of Civil Pro., §§ 1668, 1669, 1901, 3282. 361. Where the issues in an action have been referred, is it nec- essary that the referee should be sworn f He must take the oath prescribed by statute before proceed- ing to hear testimony, \xnless the oath is waived. But he may adjourn the cause, dismiss the complaint for insufficiency, order judgment on the pleadings, or do any other similar act without being sworn so long as no witnesses are called and no docu- mentary evidence is offered. Code of Civil Pro., § 1016 ; Bay- lies' Trial Pr. 263. 362. State the substance of a referee's oath. He is sworn faithfully and fairly to try the issues, or to de- termine the questions referred to liim, as the case requires, and to make a just and true report according to the best of his un- derstanding. Code of Civil Pro., § 1016. 363. What are the general powers of a referee upon a trial? The tj'ial, by a referee, of an issue of fact, or of an issue of law, must be brought on upon like notice, and conducted in like manner, and the papers to be furnished thereupon are the same, and are furnished in like manner, as where the trial is by the «ourt, without a jury. The referee exercises, upon such a trial, the same power as the court, to grant adjournments, to preserve order, and punish the violation thereof. Upon the trial of an issue of fact, the referee exercises also the same power as the court, to allow amendments to the summons, or to the pleadings ; to compel the attendance of a witness by attachment ; and to pun- ish a witness for a contempt of court, for non-attendance, or re- fusal to be sworn, or to testify. Upon the trial of an issue of law, the referee exercises the same power as the court, to permit a party in fault to plead anew or amend ; to direct the action to be divided into two or more actions ; to award costs, and other- wise to dispose of any question, arising upon the decision of the issue referred to him. The powers so conferred are exercised in like manner, and upon like terms, as similar powers are exer- cised by the court, upon a trial. Code of Civil Pro., § 1018. 25 386, Pbacticb. 364. In what manner is the ^tenitmce examine the case on the merits, or to reverse or set aside the report on the ground that the evidence is insufficient to support the findings, and to order an independent judgment in the case f It has not. Upon the application the court has power to grant the motion and render judgment on the report, or to deny the motion for fraud, collusion, or similar causes, but not upon the merits. Baylies' Trial Pr. 460. 501. What proof must he presented to the clerk to authorize him to enter judgment for the plaintiff in an action to recover the amount due and unpaid upon a promissory note where the defend- ant was personally served with a copy of the summons and of a veri- fi,ed complaint hut has failed to appear within the time limited by statute ? The plaintiff must file proof of the service of the summons: and copy complaint, and also proof by affidavit that the defendant has not appeared, and thereupon the clerk must enter final judg- ment for the sura demanded in the complaint, or, at the plaint- iff's option, for a smaller sum, and if necessary must compute the interest on the note. Code of Civil Pro. §§ 1212, 1213. 503. What proof would be necessary to authorize the clerk tO' enter final judgment for the plaintiff, in the case stated, if the de^ fendant had appeared but failed to answer the complaint? In that case the plaintiff must file proof of the service of the summons and of the appearance, or of the appear- Pbactice. 413 a,nce only, and also proof by affidavit of the default. Code of ■Civil Pro., § 1212. 503. What are the proceedings to perfect a judgment in an action upon a promissory note where the defendant was personally served with a summons and a copy of an unverified complaint, and has made default in appearing ? In that case the plaintiff must present to the clerk proof of the service of the summons and copy complaint, and proof by affidavit that the defendant has not appeared. The clerk must then assess the amount due the plaintiff, by computing the amount due upon the note, and if the note has been lost, so that it cannot be produced, must take proof of its loss and of its con- tents. Either party may require the clerk to reduce to writing and iile the assessment, and the oral proof if any taken by him. The clerk must then enter final judgment for the plaintiff. Code ■oi Civil Pro., §§ 1212, 1213. 504. What is the proper procedure where the summons was per- sonally served upon the defendant within the State and he has made ■default in appearing, or where the defendant has appeared, hut has made default in pleading, and the case is not one where the ^lerk can enter final Judgment P In that case the plaintiff must apply to the court for judg- ment, and upon the application, must file proof of the service of the summons, and proof by affidavit that the defendant has not appeared, and thereupon the court must render the judgment to which the plaintiff is entitled. The court may without a jury, or with a jury, if one is present in court, make a computation or Assessment, or take an account or proof of a fact, for the purpose of enabling it to render the judgment or to carry it into effect, or it may, in its discretion, direct a reference, or a writ of inquiry for either purpose, except that where the action is brought to recover damages for a personal injury or an injury to property the damages must be ascertained by means of a writ of inquiry. If a reference or a writ of inquiry is directed, the court may direct that the report or inquisition be returned to the court fov 'its further action, or it may in its discretion, except where spe- -cial provision is otherwise made by law, omit that direction, in 414 Pbacticb. which case final judgment may be entered by the clerk, in accord- ance with the report of the referee, or for the damages ascer- tained by the inquisition, without any further application. Code of Civil Pro., §§ 1214, 1215. 505. What are the necesBary proceedings to perfect judgment ly default in any case where the summons was served upon the defend^ ant without the state, or otherwisethan personally f In such case the plaintiff must apply to the court for the judgment demanded in the complaint, and upon the application must file proof that the service is complete, and proof by affida- vit of the defendant's default. The court must require the plaintiff to make proof of the cause of action set forth in the complaint either before the court or a referee appointed for that purpose. Code of Civil Pro., § 1216. 506. What further procedure must he had where the defendant is a non-resident or a foreign corporation, and the summons was: not personally served within the State ? In that case in addition to the proof required in the last answer, the couvt must require the plaintiff, or his agent, or at- torney, to be examined on oath respecting any payments to the plaintiff or to any one for his use, on account of his demand, and must render the judgment to whicli the plaintiff is entitled.. Code of Civil Pro., § 1216. 507. What security may the court require hefore rendering judgment upon the plaintiffs application in any case where the summons was served otherwise than personally within the State, and the defendant is in default? The court may require the plaintiff to file an undertaking to abide the order of the court touching ■ the restitution of any estate or effects which may be directed by the judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of the judgment in case the defendant or his representative applies and is admitted to defend the action, and succeeds in his defense. Code of Civil Pro., § 1216. 508. What papers must ie produced and fled hy the plaintiff to entitle Mm to Judgment for a sum of money only on an applica- Practice. 415 tion for judgment hy default in appearing against a nonresident defendant, or a foreign corporation, where the summons was served otherwise than personally within the State ? He must file (1) proof by affidavit, that a warrant of attach- ment, granted in the action, has been levied upon the property of the defendant ; (2) a description of the property so attached, verified by affidavit, with a statement of the value thereof ac- cording to the inventory ; and (3) the undertaking mentioned in the last answer if one has been required. Code of Civil Pro., §1217. 509. What would he the result if the action was not one in which a warrant of attachment could issue ? In that case the plaintiff could not have judgment for a sum of money only. Code of Civil Pro., § 1217. 510. State generally the proceedings on an assessment of dam- ages hefore a sheriff' s jury ? The proceedings on the assessment of damages before a sheriff's jury on default of answer are regulated by the former practice, and are conducted in substantially the same manner as a trial in court. The sheriff, under sheriff, or deputy conducts the inquest. The cause of action being admitted by the default cannot be proved or disproved, nor can a partial defense be proved. The only question for the jury is the amount of dam- ages ; and the defendant may prove any matter in mitigation of damages and may call witnesses for that purpose. The rules of evidence are the same as upon an ordinary trial. The jury, after deliberating and agreeing upon their verdict, should sign and' seal the inquisition, and the sheriff should indorse his return upon the writ or order. 2 Till. & S. Pr. 264-267. 511. "What class of actions are comprehended in the general phrase " actions arising on contract for the recovery of money only?" By "actions arising on contract for the recovery of money only " are intended all actions for debt, as distinguished from actions for damages, for special relief, or for specific property ; or, in other words, such actions as are founded upon contracts which by their terms, require the payment of money only. 2 Till. & S. Pr. 252. 416 Pkactice. 512. Sow would you proceed if the defendant did not deny any: part of your client's claim as set up in the complaint, hut set up in Ms answer a counter-claim amounting to less than such claim f If the counter-claim so urged was wholly unfounded, or ex- cessive in amount, the only course would be to proceedto trial. But if the defendant's claim was a valid one, the proper course would he to file with the clerk an admission of the counter-claim, and to take judgment for the excess of the plaintiff's demand as upon a default for want of an answer. Code of Civil Pro., § 512 ; 2 Wait's Pr. 519. 513. How may the plaintiff proceed where the answer of the defendant expressly or hy not denying, admits part of the plaint- iff's claim to he just ? The plaintiff may apply to the court for an order directing the action to be severed; that judgment be entered for the plaint- iff for the part so admitted ; and if the plaintiff so elects, that the action be continued with like effect, as to subsequent proceed- ings, as if it had been originally brought for the remainder of the claim. The granting of the order is discretionary with the court. If the order is granted it must prescribe the time and manner of the plaintiff's election. Code of Civil Pro., § 511. 514. How are costs awarded in such casef If the plaintiff elects to continue the action his right to costs upon the judgment is the same as if it was taken in an action brought for only that part of the claim. If the plaintiff elects not to continue the action, costs must be awarded as upon final judgment in any other case. Code of Civil Pro., § 611. 515. In what oases may a defendant move for judgment upon an answer f If the answer contains a statement of new matter constitut- ing a counter-claim, and the plaintiff fail to reply or demur thereto within the time prescribed hy law, the defendant may move, on notice, for judgment, and if the case require it, a writ of inquiry may be issued or a reference may be ordered. Code of Civil Pro., § 515 ; 2 Wait's Pr. 520. Pbactice. 41^ 516. For what purposes and in what cases may ajudgrnent hy ■confession he entered without action ? A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant or both. Code of Civil Pro., § 1273. 517. What statement is required on the part of the defendant before Judgment hy confession can he entered ? Before a judgment by confession can be entered, the defend- ant must make, sign and swear to a written statement to the following effect : 1. It must state the amount for which judg- ment may be entered, and authorize the entry of judgment there- for ; 2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and must show that the «um confessed therefor is justly due or to become due ; 3. If it be for the purpose of securing the plaintiff against a contingent lia- lity it must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same. Code of Civil Pro., § 1274. 518. In what manner is a judgment entered upon this state- ■ment ? At any time within three years after the statement is veri- fied, it may be filed with a county clerk, or with the clerk of a superior city court, or where the sum for which judgment is con- fessed, does not exceed two thousand dollars, exclusive of inter- est from the time of making the statement, with the clerk of the marine court of the city of New York. Thereupon the clerk must enter, in like manner as a judgment is entered in an action, a judgment for the sum confessed, with costs, which he must tax, to the amount of fifteen dollars, besides disbursements taxable in an action. If the statement is filed with a county clerk, the judg- ment must be entered in the supreme court ; if it is filed with the clerk of another court specified in this section, the judgment must be entered in the court of which he is clerk. But a judg- ment shall not bp entered upon such a statement, after the de- fendant's death. Code of Civil Pro., § 1275. 519. In what manner is a justice' s judgment made a judgment ■of the county court f 27 418 Pbactice. The Code makes it the duty of a justice of the peace to give a transcript to any party in whose favor he has rendered judg- ment, and when this transcript is filed and docketed in the office of the clerk of the county in which the judgment was rendered,, the judgment thereupon becomes a judgment of the county court,, in a limited sense. Code of Civil Pro., § 3017. 520. A hrought an action against B, O and D, to recover dam- ages for the breach of a contract alleged to have been made by the; three defendants jointly. Upon the trial, it appeared that B only- was liable upon the contract, and that C and D were not liable. The breach of contract being established, how should Judgment be rendered in the action ? The complaint should be dismissed as to C and D, and judg- ment rendered against B under the provision of the Code allow- ing judgment to be given for or against one or more of several plaintiffs, and for or against one or more of several defendants^ " Code of Civil Pro., § 1204 ; 3 Wait's Pr. 604. 631. What was the rule in such cases at common law ? It was well settled at common law, prior to the Code, that in an action against several defendants on an alleged joint con- tract, no recovery could be had against any of them, unless a joint contract, made by all of them, was established. 3 Wait's Pr. 604. 522. How are judgments rendered and enforced against married women ? The same as against unmarried women. Code of Civil Pro.,, § 1206. 523. Does the clause of the Code providing, that the judg- ment may grant to the defendant any affirmative relief to which he may be entitled, authorize the granting of any affirmative relief not authorized by the pleadings and not prayed for by the answer? It does not. Judgment cannot be given to the defendant for a cause of action not set up by way of defense or counter- claim. 3 Wait's Pr. 609. 524. What constitutes th^ judgment roll in ordinary cases f Except where special provision is otherwise made by law,. Practice. 419 the judgment-roll must consist of the summons ; the pleadings, or copies thereof; the final judgment, and the interlocutory judgment, if any, or copies thereof; and each paper on file, or a copy thereof, and a copy of each order, which in any way in- tolves the merits, or necessarily affects the judgment. If judg- ment is taken by default, the judgment-roll must also contain the papers required to be filed, upon so taking judgment, or upon making • application therefor ; together with any report, decision or writ of inquiry, and return thereto. If judgment is taken after a trial, the judgment-roll must contain the verdict, report, or decision ; each offer, if any, made as prescribed in the Code ; and the exceptions or case then on file. Code of Civil Pro., § 1237. 525. What constitutes the judgment-roll where the judgment is entered on confession ? It consists of the statement made, signed and verified by the defendant, and a copy of the judgment. Code of Civil Pro., § 1276. 526. What constitutes the judgment roll where the controversy has been submitted upon a case containing a statement of admitted facts? The judgment-roll consists of the case, submission, affidavit, and a certified copy of the judgment, and of any order or paper necessarily affecting the judgment. Code of Civil Pro., § 1281. 527. Who should prepare the judgment-roll ? The judgment-roll must be prepared, and furnished to the clerk, b}' the attorney, for the part}'- at whose instance the final judgment is entered ; except that the clerk must attach thereto the necessary original papers, on file. But the clerk may, at his option, make up the entire judgment-roll. Code of Civil Pro., § 1238. 528. What is-the ^^judgment-book ?''' It is a book for the entry of judgments kept by the clerk among the records of the court, in which he enters each interloc- utory or final judgment. This entry is attested by the signa- ture of the clerk, and he also notes in the margin of the entry the day and year of entering it. Code of Civil Pro., § 1236. 420 Peaciice. 529. Is the entry made hy the clerk in thejudgment-hooh the judgment or only a copy of the judgment. In- theory the entry made by the clerk in the judgment- book precedes the filing of the judgment-roll, and is the original judgment, the paper attached to the judgment-roll being only a copy of the entry. In practice the attorney for the successful party draws up the judgment, and makes up the judgment-roUf- and the judgment so furnished to the clerk is copied into the judgment book by the clerk at his convenience. Baylies' Trial Pr. 479, 480. 530. What is the earliest moment at which a proceeding may he instituted to enforce or collect a final judgment ? The moment the judgment-roll is filed. This time is fixed by a minute made by the clerk on the back of the judgment-roll of the year, month, day, hour, and minute of filing it. Code of Civil Pro., § 1239. 531. What is the '■^ docJcet-book " kept by county clerks, and . clerks of superior city courts P It is a book, ruled in columns, convenient for making the necessary entries, in which the clerk, on filing the judgment-roll, enters under the initial letter of the surname of the judgment- debtor, in its alphabetical order : 1. The name, at length, of the judgment debtor ; and also his residence, title, and trade or profession, if any of them are stated in the judgment. 2. The name of the party, in whose favor the ju^dgment was rendered. 3. The sum recovered or directed to be paid in figures. 4. The day, hour, and minute, when the judgment-roll was filed. 5. The day, hour and minute, when the judgment was docket- ed in his office. • 6. The court in which the judgment was rendered, and, if it was rendered in the supreme court, the county where the judg- ment-roll is filed. 7. The name of the attorney for the party recovering the judgment. Practice. 421, If there are two or more judgment debtors, those entries must be repeated, under the initial letter of the surname of each. Code of Civil Pro. § 1246. 532. What is the lien createdhy a docketed judgment ? A judgment regularly docketed in the county clerk's office, unless the law otherwise specially prescribes, binds, and is a charge upon the real property and chattels real in that county which the judgment debtor has at the time of so docket- ing it or which he acquires at any time within the next ten years and continues to be such a lien for ten years after filing the judg- ment-roll and no longer. Code of Civil Pro., § 1251. 533. What judgments man he docketed under the general pro- visions of the Code f Only judgments wholly or partly for a sum of money or di- recting the payment of a sum of money. Code of Civil Pro., §1272. 534. Within what time must a motion he made to set aside a judgment for irregularity ? It must be piade or noticed before the expiration of one year since the filing of the judgment-roll. Code of Civil Pro., § 1282. 535. Within what time and in what cases may the court vacate a judgment as a matter of favor ? The Code provides that the court may in its discretion, and upon such terms as justice requires, at any time within one year after notice thereof, relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or ex- cusable neglect. Code of Civ. Pro., § 724. 536. When and in what cases will the court open a judgment, in an action commenced hy the publication of a summons ? A defendant against whom publication is ordered, or his representatives, may, on application and good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendi- tion, in all cases except in actions for divorce. Code of Civil Pro. § 445. 537. How many kinds of execution are there f There are four kinds of execution, as follows : 422 Pbacticb. 1. Against property. 2. Against the person. 3. For the delivery of the possession of real property, with or without damages for withholding the same. 4. For the delivery of the possession of a chattel, with or without damages for the taking or detention thereof. Code of Civil Pro., § 1364. 538. In what cases may a judgment he enforced by execution ? It may be so enforced (1) where it is for a sum of money in favor of either party, or directs the payment of a sum of money ; or (2) where it is in favor of the plaintiff in an action of eject- ment or for dower ; or (3) in an action to recover a chattel, where it awards a chattel to either party. Code of Civil Pro., § 1239. 539. When a judgment is not one that can he enforced hy exe- cution, in what manner may it he enforced f It may be enforced by serving a certified copy upon the party against whom it is rendered or the officer or person who is required by it or by law to obey it, aind if he refuses or will- fully neglects to obey it, by punishing him for contempt of court. Code of Civil Pro., § 1241. 540. In what cases can an execution he issued as of course, and in what cases is leave of court necessary ? An execution may issue as of course at any time within five years after the entry of judgment ; but after a lapse of five years from the entry of judgment an execution can be issued only by leave of the court. Code of Civil Pro., §§ 1375, 1377. 541. Is it necessary lo obtain leave to issue a second execution where a prior execution has been issued and returned unsatisfied in whole or in a part ? It is not if such prior execution has been issued on the judg- ment within five years after the entry of the judgment. Code of Civil Pro., § 1377. 542. How would you proceed to obtain leave to issue an execu- tion P If the adverse party is a resident and can be found, he should be personally served with a notice of the application for leave to Practice. 423 issue the execution. The notice should be given at least eight days before the hearing. If the adverse party is a non-resident or cannot be found, service may be made by publication or in such other manner as the court may direct. Satisfactory proof must be furnished at the hearing that the judgment or some part thereof remains unsatisfied and due. On such application and proof leave to issue an execution must be granted. Code of -Civil Pro., § 1378; 4 Wait's Pr. 10. 543- Can an attorney issue an execution on a judgment recovered in a justice's court when a transcript has been filed with the county clerk f He cannot, the execution can be issued only by the county clerk. Code of Civil Pro., § 3017. 544. To what county or counties may an execution be issued f An execution against property can be issued only to a county, in the clerk's office of which the judgment is docketed. An execution against the person may be issued to any county. An execution for the delivery of the possession of real property, must be issued to the county, where the property or a part there- of, is situated. An execution for the delivery of the possession of a chattel, may be issued to any county, where the chattel is found ; or to the sheriff of the county where the judgment-roll is iiled. Executions, upon the same judgment, may be issued at the same time, to two or more different counties. Code of Civil Pro., § 1365. 545. In what cases may an execution he issued against the person of a male judgment debtor ? Where a judgment can be enforced by execution, an execu- tion against the person of the judgment debtor, may be issued thereupon, in either of the following cases : — 1. Where the plaintiff's right to arrest the defendant depends upon the nature of the action. 2. In any other case, where an order of arrest has been granted and executed in the action, and, if it was executed against the judgment debtor, where it has not been vacated. Codd of Civil Pro., § 1487. 424 Pbactice. 546. In what cases is an execution against the person pro- hibited ? An execution cannot be issued against the person of a, woman, unless an order of arrest has been granted and executed in the action, and if it was executed against the judgment debtor, has not been vacated, and in any other case unless the judgment debtor is actually confined, without having been admitted to the liberties of the jail, by virtue of an execution against his person, issued in another action, or of an order of arrest or a surrender by his bail, in the same action, an execution against his person cannot be issued, until an execution against his property has- been returned wholly or partly unsatisfied. If he is a resident of the State, the execution against his property must have beea issued to the county where he resides. Code of Civil Pro.,, §§ 1488, 1489. 547. Oan an execution against the person he issued while there- is an outstanding execution against property ? An execution against the person of the judgment debtor cannot be issued, without leave of the court, while an execution against his property, issued in the same action, remains un- 16 turned ; and an execution against his property cannot be issued,, without leave of the court, while an execution against his person, issued in the same action, remains unreturned. Code of Civil Pro., § 1490. 548. How must an execution issued on a judgment of the: supreme court he directed ? It must be directed to the sheriff unless he is a party or interested, in which case it must be directed to the coroner unless the court orders it to be directed to some other specified person. Code of Civil Pro., § 1362. 549. What are the essential requirements of the Code as to the contents of all executions issued upon the judgments of courts of record ? The execution must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the court in which, the judgment was rendered; and, if it was rendered in the supreme court, the Pkactice. ' 42& county ill which the judgment roll is filed. It must require the sheriff to return it to the proper clerk, within sixty days after the receipt thereof. Code of Civil Pro., § 1366. 549. Where must the execution he made returnable ? If the execution is issued out of a court other than that in which the judgment was rendered, upon the filing of a tran- script of the judgment rendered in the latter court, it must specify the clerk with whom the transcript is filed, and the time of filing, and must be made returnable to that clerk. In all other (cases the execution must be made returnable to the clerk with whom the judgment-foil is filed. Code of Civil Pro., §§ 1366, 1367. 550. ^tiat statement must he inserted in an execution issued npon a judgment for a sum of money or directing the payment of a sum of money ? A statement of the sum recovered or directed to be paid> and the sum actually due at the time of issuing, must be inserted in the body of the execution. It may specify a day from which interest on the sum due is to be computed, and in that case the sheriff must collect interest accordingly until the sum is paid. If all the parties against whom the judgment is rendered are not judgment debtors, the execution must show who is the judgment debtor. Code of Civil Pro., § 1363. 551. What directions to the sheriff are peculiar to an execution against the property of the judgment dehtor P The execution must reqiure the officer to satisfy the judg- ment out of the personal property of the debtor, and if sufficient personal property cannot be found, out of the real property be- loziging to him on the day when tlie judgment was docketed in the county, or at any time thereafter. Code of Civil Pro., § 1369. . 552. What directions to the sheriff must he contained in an ex- ecution against the person of the judgment debtor ? The execution must require the officer to arrest the debtor and commit him to the jail of the county, until he shall pay the judgment or be discharged according to law. Code of Civil Pro., § 1372. 426 Pbactice. 553. What is the first duty of the sheriff on the receipt of an execution? It is the first duty of a sheriff, upon the receipt of an exe- cution, to indorse upon it the year, month, day and hour in which it was received by him. Code of Civil Pro., § 1363. 554. What degree of care is required of the sheriff in the cus- tody of goods seized under an execution ; and when is he responr «iblefor injuries happening to such goods when in his custody? A sheriff is required to take the same care of property in his custody that a careful, prudent man of good sense would exer- cise over the property if it were his own ; and he is liable for injuries happening to the property while it is in his custody only when such cave has not been exercised. 4 Wait's Act. & Def., 695. 555. How must a levy on personal property he made f To constitute a valid levy, the officer must enter on the premises where the goods arc, and take them into his possession if practicable ; if not, he must openly assert his title by virtue of his execution. 4 Wait's Pr. 50. ' 556. A made a promissory note in which he inserted thefollow- ■1111/ clause, "and Thereby waive and relinquish all right of exemp- tio7i of any property I may have from execution on this debt." On the dishonor of the note, the holder brought an action, recovered judgment, and issued an execution under which certain property belonging to A, and exempt from execution, was seized and sold. Can A recover back the property so taken in an action in the nature of replevin ? He can. A party cannot, by prospective agreement, waive the exemption given bj^ law, and any agreement by which such waiver is attempted is null and void. 4 Wait's Pr. 46. 557. How many distinct remedies are given to a judgment cred- itor by way of proceedings supplementary to execution, and what are they f The Code provides three distinct remedies of this nature : 1. An order made or a warrant issued against a judgment debtor, after the return of an execution. 2. An order made, or a warrant issued against a judgment ilebtor, after the issuing and before the return of an execution. Pbactice. 427 3. An order, made after the issuing, and either before or after the return, of an execution, against a person who has property of the judgment debtor, or is indebted to him. The proceedings under subdivision third may be pursued, either alone, or simultaneously with the proceedings under either subdivision first or second. Code of Civil Pro., § 2432 ; Fiero on Spec. Pro., 512 ; 4 Wait's Pr. 129. 558. What is requisite to entitle the judgment creditor to resort ■to either of these remedies ? A judgment must have been rendered upon the judgment debtor's appearance, or personal service of the summons upon him, for a sum not less than $25, and an execution must have been issued out of a court of record, and either 1. To the sheriff of the county where the judgment debtor has, at the time of the commencement of the special proceeding, an office for the regular transaction of business in person ; or 2. If the judgment debtor is then a resident of the State, to the sheriff of the county where he resides ; or 3. If he is not then a resident of the State, to the sheriff of the county where the judgment-roll is filed : unless the execution was issued out of a court, other than that in which the judgment was rendered, and, in that case, to the sheriff of the county where the transcript of the judgment is filed. Code of Civil Pro., § 2458 ; Fiero on Spec. Pro., 549 ; 4 Wait's Pr. 181. 559. When has a creditor an unqualified right to an order re- quiring a judgment debtor to appear and answer concerning his property ? At any time within ten years after the return, wholly or partly unsatisfied, of an execution against property, issued out of a court of record, to the sheriff of the proper county, upon a judgment for not less than $25, rendered upon the appearance of the judgment debtor, or after personal service of the sum- mons upon him, the judgment creditor, upon proof of the facts by affidavit or other competent written evidence, is entitled to an order requiring the judgment debtor to attend and be exam- ined concerning his property at a time and place specified in the order. Code of Civil Pro., § 2435. 560. In what cases may an order for the examination ofajudg- 428 Pkactice. me7it debtor 7te had before the return of an execution againU his property ? Such an order may be had after the issuing and before the return of an execution, issued out of a court of record to the sheriif of the proper county against the property of the judgment. debtor, upon proof by affidavit or other competent evidence that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment. Code of Civil Pro., § 2436 ; Fiero on Spec. Pro., 526. 561. In what cases has a judgment creditor a right to an order for the examination of a third person who is a debtor of the judg- ment debtor ? The creditor is entitled to such order on proof by affidavit or other competent written evidence to the satisfaction of the judge that an execution against property has been issued out of a court of record to the sheriff of the proper county, and either that it has been returned unsatisfied in whole or in part or that it has not been returned, and also that a person or corporation has personal property of the judgment debtor exceeding ten dollars in value or is indebted to him in a sum exceeding ten dollars. Code of Civil Pro., § 2441 ; 4 Wait's Pr. 154 ; Fier® on Spec. Pro. 528. 563. What is the nature of these remedies ? Tliey are special proceedings. Code of Civil Pro., § 2433. 563. Before what judge may these proceedings be instituted? They may be instituted before the judge of the court out of which the execution issued, or the county judge, special county judge, or special surrogate of the county to which the execution was issued, or where it was issued to the city and county of New York from a court other than the city court, before a judge of the court of Common Pleas. Code of Civil Pro., § 2434. 564. How would you proceed in case the execution was not issued out of the supreme court, and all the judges before whom the proceeding might be instituted were absent or disqualified ? In that case the application for the warrant or order should be made to a justice of the supreme court upon the ordinary • Pbactice. 429 motion papers and upon an alBBdavit showing the absence or dis- qualification of the judges otherwise authorized to act. Code of Civil Pro., § 2434. 565. Is it necessary that the order for the examination of a judgment debtor should require him to appear before the judge granting the order? It is not. The order may require the debtor to attend and be examined either before the judge to whom the order is return- able or before a referee designated in the order. Code of Civil Pro., § 2442. 566. In what manner may the judgment debtor be prevented from disposing of his property subsequent to the granting of the order for his examination? The judge by whom the order or warrant was granted or to whom it is returnable, may make an injunction order, restraining any person or corporation, whether a party or not a party to the special proceeding, from making or suffering any transfer or other disposition of, or interference with, the property of the judgment debtor, or the property or debt, concerning which any person is required to attend and be examined until further direc- tion in the premises. Such an injunction order may be made simultaneously with the order or warrant, by which the special proceeding is instituted, and upon the same papers ; or after- wards, upon an affidavit, showing sufficient grounds therefor. Code of Civil Pro., § 2451. 567. In what cases may the judgment debtor be brought before the judge by warrant instead of by order ? Where the judgment creditor presents proof entitling him to an order for the examination of the judgment debtor, and also proof by affidavit to the satisfaction of the judge that there is danger that the judgment debtor will leave the State or conceal himself, and that there is reason to believe that he has property which he unjustly refuses to apply to the payment of the judg- ment, the judge may, instead of making an order, issue a warrant under his hand, reciting the facts and requiring the sheriff of any county where he may be found to arrest him and bring him before the same judge or before another judge if the case is ouo 430 Practice. where the warrant must be returnable to another judge. Code of Civil Pro., § 2487. 568. State generally the proceedings upon the arrest of the judgment debtor f The judgment debtor upon being arrested and brought before the judge is examined under oath as to the facts upon which the warrant was granted. If it appears that there is dan- ger of his leaving the State, and that he has property which he has unjustly refused to apply on the judgment, he may be ordered to enter into an undertaking with one or more sureties, to the effect that he will from time to time as the judge directs, attend before the judge or before a referee appointed or to be appointed, and that he will not, until discharged from arrest by virtue of the warrant, dispose of any of his property which is not exempt from seizure by section 2463 of the Code. If he fails to comply with the order he may be committed to prison until the close of the examination or the giving of the undertaking. Code of Civif Pro., § 2437. 569. State generally the mode of conducting the examination before the judge or referee ? Upon the appearance of the debtor and other persons sum- moned to attend the examination, the judgment creditor ih> person or by attorney proceeds to examine the debtor concerning- any property which he may possess or has possessed, and also how, when, and for what consideration he has parted with the possession of property which he may formerly have had. Tha creditor is allowed to make a searching examination respecting the property of the debtor, and to require detailed statements in respect thereto. Instead of examining the judgment debtor, the creditor may confine his examination exclusively to witnesses summoned for that purpose. No person on the examination can be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud, or that he has, before the examination, executed any con- veyance, assignment or transfer of his property for an}'- purpose. The debtor is entitled to be examined in his own behalf in the same manner as a witness, and to ha-ve the aid and assistance of Practice. 431 counsel. 2 TUl. & S. 870-873 ; 4 Wait's Pr. 150 ; Fiero oa Spec. Pro. 633, 551 ; Code of Civil Pro., §§ 2444, 2460. 570. How must the order for the examination he served ? The original order, under the hand of the judge making it, must be exhibited to the person to be served. A copy thereof, and of the affidavit upon which it was made must be delivered to him. Service upon a corporation is sufficient, If made upon an offi- cer, to whom a copy of a summons must be delivered, where a summons is personally served upon the corporation ; unless the officer is specially designated by the judge. Code of Civil Pro.,. §2452. 671. How are all orders made hy a judge or referee in supple- mentary proceedings enforced ? A judge or referee may enforce obedience to any order made by him in supplementary proceedings and duly served, by pun- ishing all disobedience to the same by commitment as for con- tempt. Code of Civil Pro., § 2457. 572. How may proceedings supplementary to execution he termi- nated ? The proceeding may be discontinued at any time, upon suck terms as justice requires, by an order of the judge, made upon the application of the judgment creditor. Where the judgment creditor unreasonably neglects or delays to proceed, or where it appears that his judgment has been satisfied, his proceedings may be dismissed, upon like terms, by a like order, made upon the application of the judgment debtor, or of the plaintiff in a judgment creditor's action against the debtor, or of a judgment creditor who has instituted either class of supplementary pro- ceedings. Where an order appointing a receiver or. extending a receivership, has been made, in the course of the special pro- ceeding, notice of the application for an order of discontinuance or dismissal must be given, in such a manner as the judge deems proper, to all persons interested in the receivership, as far as they can conveniently be ascertained. Code of Civil Pro., § 2454. 573. When and to what amount may the creditor he allowed costs ? The judge may ma,ke an order, allowing to the judgment cred- 432 Pkactice. itor a fixed sum, as costs, consisting of his witnesses' fees and other disbursements, and of a sum, in addition thereto, not ex- ceeding thirty dollars ; and directing the payment thereof, out of any money which has come, or may come, to the hands of the receiver, or of the sheriff ; or, within a time specified in the order, by the judgment debtor, or other person against whom the special proceeding is instituted. Code of Civil Pro., § 2455. 674. When may the party examined he allowed costs? Where the judgment debtor, or other person against whom the special proceeding is instituted, has been examined, and property, applicable to the payment of the judgment, has not been discovered in the course of the special proceeding. Code of Civil Pro., § 2456. 575. Can an infant submit a controversy to arbitration f No ; the Code provides that a submission of a controversy to arbitration cannot be made where one of the parties to the controversy is an infant. But if an adult knowingly enters into a submission with an infant, the objection of want of capacity can be raised on behalf of the infant only. Code of Civil Pro., § 2365 ; Fiero on Spec. Pro. § 444; 6 Wait's Pr., 208. 576. When and how must arbitrators be sworn? Before hearing any testimony the arbitrators must be sworn faithfully and fairly to hear and examine the matters in contro- viersy and make a just award according to the best of their un- derstanding, unless the oath is waived by the written consent of the parties to the submission or their attorneys. Code of Civil Pro., § 2369; 6 Wait's Pr. 222; Fiero on Spec. Pro. 455; 2 Wait's Law & Pr. (5th ed.) 847. 577. What is essential as to the form and execution of an award which may be enforced under the Code ? To entitle the award to be enforced, it must be in writing ; must be subscribed by the arbitrators making it within the time limited by the submission, if any time is so fixed ; must be acknowledged or proved and certified in like manner as a deed to be recorded ; and must either be filed in the office of the clerk of the court in which by the submission judgment is autho- rized to be entered on the award, or delivered to one of the par- Pkacticb. 433 ties or his attorney. Code of Civil Pro., § 2372 ; Fiero on Spec. Pro. 459. 578. What is the effect of a Judgment entered on an award P A judgment entered on an award has the same force and ef- fect in all respects, and is subject to all the provisions of law relating to a judgment in an action ; and it may be enforced as if it had been rendered in an action in the court in which it is entered. Code of Civil Pro., § 2380. 579. What must he specified in a notice of sale in a foreclosure if a mortgage hy advertisement ? The notice of sale must specify : 1. The names of the mortgagor, of the mortgagee and of each assignee of the mortgage. ■ 2. The date of the mortgage, and the time when, and the place ."where, it is recorded. 3. The sum claimed to be due upon the mortgage, at the time of the first publication of the notice ; and, if any sum secured by the mortgage is not then due, the amount to become due there- tipon. 4. A description of the mortgaged property, conforming sub- stantially to that contained in the mortgage. Code of Civil Pro., % 2391 ; 5 Wait's Pr. 252. 580. Upon whom must a notice of foreclosure hy advertisement ie served ? A copy of the notice must be served upon the mortgagor, or, if he is dead, upon his executor or administrator. A copy of the notice may also be served upon a subsequent grantee or mortgagee of the propertj^ whose conveyance was recorded, in 'the proper office for recording it in the county, at the time of the first publication of tlie notice of sale ; upon the wife or widow of the mortgagor, and the wife or widow of each subsequent grantee, whose conveyance was so recorded, then having an in- choate or vested right of dower, or an estate in dower, subordi- nate to the lien of the mortgage ; or upon any person, then hav- ing a lien upon the property, subsequent to the mortgage, by vir- tue of a judgment or decree, duly docketed in the county clerk":, oifice and constituting a specific or general lien upon the prop- erty. Code of Civil Pro., § 2388 ; 5 Wait's Pr. 255. 434 Practice. 581. How long must the notice of sale he published, and in what newspaper ? A copy of the notice must be published at least once in each of the twelve weeks immediately preceding the day of sale in a. newspaper published in the county in which the property to be sold, or a part thereof, is situated. Code of Civil Pro., § 2383 ;, Fiero on Spec. Pro. 474; 5 Wait's Pro. 255. 582. What writs are known as " State writs?" They are the writ of habeas corpus to bring up a person to testify or to answer ; the writ of habeas corpus, and the writ of certiorari, to inquire into the cause of detention ; the writ of marir damus, the writ of prohibition, the writ of assessment of damages,, which is substituted for the writ formerly known as the writ of ad quod damnum ; and the writ of certiorari to review the de- termination of an inferior tribunal, which is also called the writ of review. Code of Civil Pro., § 1991. 583. What term is used to designate the final determination of the rights of the parties to a special proceeding instituted by State writ ? The determination is styled a final order. Code of Civil- Pro., § 1997. 584. Who muy serve a writ of habeas corpus? It can be served only by an elector of the State. Code of Civil Pro., § 2,000. 585. In what manner is the action of the court or judge in granting a State writ made manifest ? By indorsing an allowance of the writ upon it, duly dated. Code of Civil Pro., § 1996 ; Fiero on Spec. Pro. 5. 586. What is the nature of a writ of prohibition? It is an extraordinary judicial writ issuing out of a court of superior jurisdiction, directed to an inferior court, in cases where no other remedy exists, to prevent the inferior tribunal from ilsurping a jurisdiction which does not belong to it. Fiero on Spec. Pro. 89 ; 5 Wait's Pr. 603. 587. Will the writ lie to prevent the exercise of a mere minis- terial power ? It will not. Its office is to prevent courts from exceeding Practice. 435 their jurisdiction in the exercise of judicial power only, 5 Wait's Pr. 604 ; Fiero on Spep. Pro. 89. 588. Will the writ he allowed to prevent a subordinate court from enforcing an erroneous judgment ? It will not. 5 Wait's Pr. 604 ; Fiero on Spec. Pro. 90. 589. What is the nature and office of a writ of mandamus ? It is a writ issuing out of a court of competent jurisdiction, ■where the law affords no other adequate remedy, directed to some corporation, officer, or inferior tribunal, commanding the performance of a particular specified duty, resulting from the official station of the party to whom it is directed, or from opera- tion of law. High on Extraordinary Rem. 4 ; 5 Wait's Pr. 549 : Fiero on Spec. Pro. 41. 590. Will the ivrit issue to compel an inferior tribunal, to act in a particular manner, as for example to render a decision to the effect therein specified? It will not. The office of the writ is to set the inferior tribunal in motion and compel it to act in the particular matter, and not to direct it how to act. , 5 Wait's Pr. 549 ; Fiero on Spec. Pro. 42. 591. Will the writ lie to correct an error of an inferior tribunal in dismissing an appeal ? It will not. 5 Wait's Pr. 556 ; Fiero on Spec. Pro. 56. 592. Oan a writ of certiorari le issued to review a determirM- tion made in a civil action or special proceeding by a court of record or a judge of a court-of record ? It cannot. Code of Civ. Pro., § 2121. 593. Can a writ of certiorari issue to review a determination which does not finally determine the rights of the parties with re- spect to the matter to be reviewed ? It cannot. Code of Civil Pro., § 2122. 594. Can a writ of certiorari issue where there is an adequate remedy by appeal f It cannot. Code of Civil Pro., § 2122. 436 Practice. 595. Jw what manner has the law provided for the correction of errors in legal proceedings? The law provides two modes by which errors in legal pro- ceedings may be corrected : 1. By motion, where the error is one of form, arising out of a failure to conform to the settled practice of the court ; 2. By appeal, wTiere the errors consist in the omission of the court itself to properly observe and apply the law to the rights involved in controversy in making its adju- dication upon them. Baylies on New Trials & App. 6. 596. In what manner only may the ruling of the court or a referee, to which an exception has been taken, be brought up for review ? By an appeal from the judgment rendered after the trial except where it is expressly prescribed by law, that a motion for a new trial may be made thereupon. Code of Civil Pro., § 996. 597. To whom is the right of appeal given by the Code? The Code gives the right of appeal to any party aggrieved. This restricts the right to the party of record or his representa- tivesj and excludes strangers to the action, where the appeal is from a judgment rendered therein. Code of Civil Pro., §§ 1294, 2668, 8045 ; 4 Wait's Pr. 213 ; Baylies on New Trials & App, 31, 32. 598. Can a person, not a party to an action, appeal from an order made therein ? He can. Every person who can properly be called a party to an order and who is aggrieved thereby may appeal from the order although not a party to the action. Baylies on New Tr. & App. 34. 599. What provision is made by the Code for an appeal by a person not a party ? The Code provides that a person aggrieved, who is not a party, but is entitled by law to be substituted, in place of a party ; or who has acquired, since the making of the order, or the rendering of the judgment appealed from, an interest, which would have entitled him to be so substituted, if it had been previously acquired, may also appeal, as therein prescribed for Peactice. 437 an appeal by a party. But the appeal cannot be heard, until he has been substituted in place of the party ; and if he unreason- ably neglects to procure an order of substitution, the appeal may be dismissed, upon motion of the respondent. Code of Civ. Pro., §1296. 600. How are the parties to an appeal designated ? The party or person appealing is designated as the appellant and the adverse party as the respondent. After an appeal is taken to another court, the name of the appellate court must be substituted, for that of the court below, in the title of the action or special proceeding, and, in any case, the name of the county, if it is mentioned, may be omitted ; otherwise the title shall not be changed in consequence of the appeal. Code of Civil Pro. § 1295. 601. How is an appeal taken f An appeal is taken by serving upon the attorney for the ad- verse party, and upon the clerk with whom the judgment or order appealed from is entered, a written notice to the effect that the appellant appeals from the judgment or order or from a specified part thereof. Code of Civil Pro., § 1300 ; 4 Wait's Pr. 223 ; Baylies on New Tr. & App. 62. 602. Whom do you understand to he the " adverse party " upon whom notices of appeal must he served ? Every party to an action, whether plaintiff or defendant, who has an interest in sustaining the judgment or determination appealed from is, within the meaning of the Code, a party adverse to the appellant, and as such is entitled to notice of appeal. 4 Wait's Pr. 223. 603. Whose duty is it to transmit to the appellate court the papers upon which an appeal is hrought f It is primarily the duty of the appellant to cause a certified copy of the notice of appeal and of the judgment-roll, or if the appeal be from an order, a certified copy of the order, and the papers upon which the order was granted, to be transmitted to the appellate court by the clerk with whom the notice of appeal is filed. But, in case the appellant shall neglect to cause the .papers to be so transmitted, the respondent may cause it to be done 438 Practice. and recover the expenses so incurred as a disbursement, in case the judgment or order appealed from shall be in whole or in part aiRrmed. Rule 1, Court of Appeals ; Code of Civil Pro., § 1315. 604. What is irought up for review hy an appeal from a judg- ment ? An appeal, taken from a iinal judgment, brings up for re- view, an interlocutory judgment, or an intermediate order, which is specified in the notice of appeal, and necessarily affects the final judgment ; and which has not already been reviewed, upon a separate appeal therefrom, by the court or the term of the court, to which the appeal from the final judgment is taken. The right to review an interlocutory judgment, or an intermediate order, upon an appeal from the final judgment is not affected by the expira- tion of the time within which a separate appeal therefrom might have been taken. Code of Civil Pro., § 1316. 605. What judgment may he rendered upon an appeal from a judgment or order ? . Upon an appeal from a judgment or an order, the court, or the general term, to which the appeal is taken, may reverse or affirrti, wholly or partly, or may modify, the judgment or order appealed from, and each interlocutory judgment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of tlie parties, and it may, if nec- essary or proper, grant a new tri^l or hearing. Code of Civil Pro., § 1317. 606. If the judgment from which an appeal has been taken is re- versed upon the appeal and a new trial is granted, how must the defeated party proceed to obtain a review of this last judgment ? After judgment has been entered on the order of reversal, the defeated party should appeal from the order granting a new trial, and on this appeal the judgment of reversal will be review- ed. No appeal can be taken directly from the judgment of re- versal. Code of Civil Pro., § 1318 ; Baylies on New Tr. & App. 48. 607. How shojdd a party proceed to obtain a review upon the merits of a decision made upon the trial of a demurrer P He should await the entry of judgment, either final or inter-' Pbactice. 439 locutory, and then appeal both from the judgment and the order upon which it was entered. If he appeals from the order alone, it will be premature ; and if he appeals from the judgment alone, and the judgment follows the order, the judgment will be affirmed. Baylies on New Tr. & App. 50. 608. Suppose that an order has been made at special term dis- missing the plaintiff's complaint for delay in prosecution ; that a Judgment of dismissal has been regularly entered hy the defendant on the order, and that the plaintiff desires to review the action of the court ; should he in such case appeal from the order, or from the judgment, or from both? He should appeal from the order only. Baylies on New Tr. & App. 48. 609. Suppose a party has been defeated on a jury trial and ■desires a review on the facts, how should he proceed ? He should first move for a new trial, and if the motion is •denied, lie should then appeal from the order denying the new trial either separately and independently or in connection with an appeal from the judgment. Baylies on New Tr. & App. 45, 46 ; 4 Wait's Pr. 296. 610. Is it necessary to move for a new trial' where a party de- sires a review upon the facts after a final judgment entered upon the report of a referee or upon the decision of the court on a trial without a jury f It is not. Code of Civil Pro., § 1346 ; Baylies on New Tr. -& App. 45 ; 4 Wait's Pr. 296. 61 1. Can an appeal be taken from an order before it is entered? It cannot. Code of Civil Pro., § 1304; 4 Wait's Pr. 331; Baylies on New Tr. & App. 44. 612. How should a party proceed who desires to appeal from an ■order which the adverse party neglects to enter ? He should apply to the judge who made the order, or if he is absent or unable to act, to a judge of the court in or to which the appeal may be taken for an order requiring the adverse party "to enter the order and file the papers on which it was founded. The application should be made on an affidavit stating the prior 440 Practice. application to the court, the papers used on the application, the? making of the order thereon, and the omission of the adverse party to enter it. Upon this application the judge will make aa order that the adverse party enter the original order and file the- riroper papers. A copy of the latter order should be served on the ; dverse party, and if he disregard it, a motion should then be- laade to the same judge, on an affidavit stating these facts, for an order revoking and annulling the original order. Code of Civil Pro., § 1304 ; Baylies on New Tr. & App. 44. 613. What is the earliest moment at which an appeal can h& taken from a judgment ? The moment the judgment is entered and the judgment- roll filed. Until this has been done no appeal can be taken. Baylies on New Tr. & App. 43. 614. Within what time must an appeal to the Court of Appeals he taken ? An appeal to the Court of Appeals, from a final judgment* must be taken, within one year after final judgment is entered^ upon the determination of the general term of the court below^ and the judgment-roll filed. An appeal to the Court of Appeals^ from an order, must be taken within sixty days after service, upon the attorney for the appellant, of a copy of the order ap- pealed from, and a written notice of the entry thereof. Code of Civil Pro., § 1325. 615. Within what time must an appeal from a judgment or order he taken to the General Term of the same court ? It must be taken within thirty days after service upon the attorney for the appellant of a copy of a judgment or order ap- pealed from and written notice of the entry thereof, except that where the appeal is to the General Term of the City Court of New York from an interlocutory judgment or order the appeal must be taken within ten days after service of a copy thereof and written notice of entry. Code of Civil Pro., §§ 1351, Sl&O. 616. Within what time must an appeal he taken to the General Term of the Supreme Court from a final judgment of an in^ ferior court? It must be taken within sixty days after service upon the? Peactice. 441 attorney for the appellant of a copy of the judgment and notice of the entry thereof. Code of Civil Pro., § 1341. 617. Within what time must an appeal he taken ly a party from a decree or order of the Surrogate's Court? It must be taken within thirty days after the service upon the appellant, or upon the attorney, if any, who appeared for him in the Surrogate's Court, of a copy of the decree or order from which the appeal is taken, and a written notice of the entry thereof. Code of Civil Pro., § 2572. 618. Within ivhat time must an appeal he taken to the county court from a judgment rendered hy a justice of the peace f The appeal must be taken within twenty days after the entry of the judgment in the justice's docket, except that where a defendant appeals from a judgment rendered in an action wherein he did not appearand the summons was not personally served upon him, the appeal may be taken within twenty days after the personal service upon him on the part of the plaintiff, of written notice of the entry of the judgment, but not after the expiration of five years from the entry of judgment. Code of Civil Pro., § 3046. 619. What are the essentials of a notice of the entry of judgment which will have the effect to limit the time within ivldcJi the adverse party may appeal ? The notice need not be in any particular form, but it must be in writing; must state where the judgment is entered; should be dated and properly addressed ; should be signed by the attorney serving it, with the addition of his office address or place of business ; and should be indorsed upon or should be adfcompanied by a copy of the judgment. Notice of the entry cannot be given until after actual entry, and a copy of the judgment cannot be served until the costs are taxed and inserted in the judgment, unless the party entering the judgment serves with the copy a notice of waiver of costs. Baylies on New Tr. & App. 57 ; Beinhauer v. Gfleason, 44 Hun, 556. 6«J0. Can the court or a judge extend the time fixed hy law •within which to take an appeal? A judge cannot extend the time within which to take an 442 Peactice. appeal in any case ; and the court cannot extend the time with- in which to take an appeal or allow an appeal to be taken after the time limited has expired, except where a party entitled to appeal from a judgment or order has died before the expiration of the time to appeal, in which case the court may allow the ap- peal to be taken by the heir, devisee or personal representative of the deceased at any time within four months after his death. Code of Civil Pro., § 785. 621. Can an appeal he taken directly to the court of appeals from a judgment of a special term of the supreme court f It can be so taken in form, although the appellate jurisdiction of the court of appeals is limited to the review o E actual determi- nations made at general term by the supreme court or by either of the superior city courts, as stated in section 190 of the Code. Where final judgment is rendered in the court below, after the affirmance, upon an appeal to the general term of that court, of an interlocutory judgment ; or after the refusal, by the general term, of a new trial, either upon an application, made, in the first instance, at the general term, or upon an appeal from an order of the special term, or of the judge before whom the issues or ques- tions of fact, were tried by a jury ; the party aggrieved may appeal directly from the final judgment to the court of appeals, notwith- standing that it was rendered at a special term, or at a trial term, or pursuant to the directions contained in a referee's report. But such an appeal brings up for review only the determination of the general term affirming the interlocutory judgment, or refusing the new trial. Code of Civil Pro., § 1336 ; Baylies on New Tr. App.,198, 199. 623. Can an appeal he taken to the court of appeals from an interlocutory judgment or from an order of the general term affirm- ing such a judgment, except in connection with an appeal from the final judgment P It cannot, save in the single case of an appeal from an actual determination of the general term where an interlocutory judg- ment has been entered on the decision of a demurrer, and then only where the appeal is taken within sixty days after the service on the attorney for the appellant of a copy of the judgment and notice of the entry thereof, and the general term has certified. Peaotice. 44S that in its opinion the question arising therein is of sufficient itn- ^portance to render a decision bj^ the court of appeals desirable l)efore proceeding further. Code of Civil Pro., § 190 ; Baylies «n New Tr. & App., 212. , 623. Can the court of appeals, upon an appeal from a final judgment rendered upon a jury trial, determine any question of fact arising upon conflicting evidence ? It cannot. Code of Civil Pro., § 1337 ; Bajdies on New Tr. .& App., 278, 281. ' 624. What is the general rule as to appeals from orders, the igranting or refusing of. which is discretionary with the court ielow ? As a general rule discretionary orders are not appealable, and will not be reviewed in the court of appeals ; but where an ■order is denied on the ground that the court had not the power to gtant the relief sought, the order denying the relief is appeal- able. So where an order denies a strictly legal right, it is appeal- able. Baylies on New Tr. & App. 217, 221 ; 4 Wait's Pr. 262. 625. Will an appeal lie to the court of appeals from an order ■dismissing an appeal to the general term of the supreme court ? It will. 4 Wait's Pr. 255. 626. What security is required on the part of the appellant on ■an appeal to the court of appeals ? To render an appeal effectual for any purpose, a written undertaking must be executed on the part of the appellant by at least two sureties, to the effect that the appellant will paj' all 'costs and damages which may be awarded against him on the appeal, not exceeding 1500, or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal, unless such undertaking or deposit is "waived by a written consent on the part of the respondent. ■Code of Civil Pro., § 1305, 1306, 1326. 627. What is necessary to render an appeal from a judgment, directing the payment of money, a stay of the execution of the judg- ment? If the appeal is taken from a judgment for a sum of money. 444 Practice. or from a judgment or order, directing the payment of a sum of money, it does not stay the execution of the judgment or order,, until the appellant gives a written undertaking, to the effect that if the judgment or order appealed from, or any part thereof, is affirmed, or the appeal is dismissed, he will pay the sum, re- covered or directed to be paid, by the judgment or order, or the- part thereof, as to which it is affirmed. But where the judgment or order directs the payment of money in fixed installments, the' undertaking must be to the effect, that the appellant will pay each installment, which becomes payable, pending the appeal, or the part thereof as to which the judgment or order is affirmed,, not exceeding a sum specified in the undertaking, which must be fixed by a judge of the court below. Code of Civil Pro., § 1327. 628. What proceeding is necessary to render an appeal from a judgment directing the assignment or delivery of documents, or personal property, a stay of proceedings on the judgment ? In order that the appeal shall operate as a stay of proceed- ings on the judgment, the things required to be assigned or delivered must be brought into court, or placed in the custody of such officer or receiver as the court shall appoint, or an under- taking must be given on the part of the appellant to the effect that lie will obey the order of the appellate court up"on appeal. Code of Civil Pro., §§ 1328, 1829. 629. How would you proceed to obtain a stay of proceedings hy an appeal from a judgment directing the execution of a conveyance or other instrument ? The execution of the judgment may be stayed by executing the instrument as directed by the judgment, and depositing the same with the clerk with whom the judgment is entered, to abide the judgment of the appellate court. 4 "Wait's Pr. 272 ;. Code of Civil Pro., § 1830. 630. What must he the tenor of an undertaking which shall have the effect of rendering an appeal from a judgment directing the sale or delivery of possession of real property, a stay of proceedings: on such judgment ? If the appeal is taken from a judgment, which entitles the respondent to the immediate possession of real property, or from Practice. 445 a judgment or order, directing the sale or the delivery of pos- session of real property, it does not stay the execution of the judgment or order, until the appellant gives a written undertak- ing, to the effect that he will not, while in possession of the property, commit, or suffer to be committed, any waste thereon ; -and that, if the judgment or order is affirmed, or the appeal is •dismissed, he will pay the value of the use and occupation of the property, or the part thereof, as to which the judgment or order is affirmed from the time of taking the appeal, until the delivery of the possession thereof, pursuant to the judgment or order, jtiot exceeding a specified sum, fixed by a judge of the court below. But if the judgment directs a foreclosure and sale of real property mortgaged, an undertaking is sufficient to stay the •execution of the judgment, which is to the effect that if the Judgment is affirmed, or the appeal is dismissed, the appellant will pay any deficiency which may occur upon the sale, in dis- charging the sum to pay which the sale is directed, with interest •and the costs, and all expenses chargeable against the proceeds •of the sale, not exceeding a specified sum, fixed by a judge of the court below. Code of Civil Pro., § 1331 ; 4 Wait's Pr. 674, -675. 631. Where must all undertakings given on appeal he filed ? They must be filed with the clerk with whom the judgment or order appealed from was entered. Code of Civil Pro., § 1307. 632. From what inferior courts and from what determinations thereof may an appeal he taken to the Supreme Court f An appeal may be taken to the Supreme Court from a final judgment rendered by a county court or by any other court of record possessing original jurisdiction where an appeal therefrom, to a court other than the Supreme Court, is not expressly given by statute. An appeal may also be taken to the Supreme Court from an order affecting a substantial riglit made by the court or & judge in an action brought in or taken by appeal to a court above specified. Code of Civil Pro., §§ 1340, 1342. 633. When is security necessary to perfect an appeal from a'.i ■inferior court to the Supreme Court ? Security is required to perfect an appeal from a final judg- 446 Practice. ment, but is not required to perfect an appeal from an order, Code of Civil Pro., §§ 1341, 1343. 634. Upon what papers must an appeal to the Supreme Court from an order of a county court or county judge he heard ? The appeal must be heard upon a certified copy of the no- tice of appeal and of the papers used before the court or the judge upon the hearing of the motion. Code of Civil Pro., §§ 1344, 1353. 635. In what cases may an appeal he taken to the general term of the Supreme Court from a final Judgment rendered in the same^ court ? An appeal may be so taken upon questions of law, or upon the facts, or both, where the judgment was rendered upon a trial by a referee, or by the court without a jury ; and it may be so taken upon questions of law, where the judgment was rendered upon the verdict of a jury. Code of Civil Pro., § 1346. 636. Can an appeal he taken hy a party from a judgment or order rendered or made upon his default f It cannot, except where the appeal is from an inferior court to the county court, or, in the city of New York, to the court of common pleas. Baylies on New Tr. & App. 9. 4 Wait's Pr. 244, 250, 295. 637. What is the remedy of a party in default? His remedy is to apply to the court to have the default- opened, or the judgment or order set aside, and if the motion is. denied to appeal from the order of denial. 4 Wait's Pr. 244 j Baylies on New Tr. & App. 9. 638- State the general rule as to what ohjections not raised at the trial, may he raised for the first time upon appeal? Any objection not raised at the trial, and which if raised,, could not have been obviated, may be raised upon appeal ; but any objection not raised upon the trial, which if raised might have been obviated, cannot be raised for the first time upon appeal. 4 Wait's Pr. 230, 231 ; Baylies on New Tr. & App. 188. 639. From what orders made in an action, on notice, at the trial Practice. 447 or special term may an appeal he taken to the general term of the same court ? 1. On order granting, refusing, continuing or modifying a provisional remedy; 2. An order granting or refusing a new trial, except where specific questions of fact arising upon the issues in an action triable by the court have been tried by a jury pursuant to an order under section 971 of the Code ; 3. An order involving some part of the merits ; 4. An order affecting a sub- stantial right ; 5. An order which in effect determines the action and prevents a judgment from which an appeal might be taken; and 6. An order which determines a statutory provision of the State to be unconstitutional, aiid the determination appears from the reasons given for the decision thereupon, or is necessarily implied in the decision. Code of Civil Pro., § 1347. 640. Can an appeal he taken to the general term from an order made upon a summary application after judgment? It can ; such orders are deemed to have been made in an ac- ' tion for the purposes of appeal. Code of Civil Pro., § 1347. 641. Can an appeal, he taken to the general term from an order made in an action upon notice hy a judge out of court ? It can. An appeal can be taken from an order made in an action upon notice by a judge out of court in a case where an appeal might be taken if the order had been made by the court. Code of Civil Pro., § 1348. 642. Can an appeal he taken to the general term of the supreme court from an interlocutory judgment rendered at the circuit ? It can. Code of Civil Pro., § 1349. 643. Will an appeal lie from the decision of a judge granting or refusing an ex parte order f It will not. 4 Wait's Pr. 330; Baylies on New Tr. & App. 8. 644. Can an appeal to the general term of the supreme court he taken from the decision of a surrogate admitting a will toprohate ? It can. Code of Civil Pro., §§ 2570, 2585. 448 Peacticb. 645. What orders may he said to ^'■involve the merits" withvrt the meaning of th-e Code ? All orders made in the progress of a cause involve the merits, except such as relate merely to matters resting in the discretion of the court, or to mere matters of practice or form of procedure. 4 Wait's Pr. 322 ; Baylies on New Tr. & App. 308. 646. What is a " substantial right " within the meaning of the Code. It is not possible to give a general definition of the phrase which will harmonize with all the cases. In some cases it is held that the term is used to distinguish between matters of sub- stance and matters of form. In other cases it has been held that the phrase is employed to distinguish between absolute legal rights and matters resting to some extent in discretion. See 4 Wait's Pr. 322 ; BayUes on New Tr. & App. 215. 647. How would you obtain a stay of proceedings under an order from which an appeal had been taken to the general term ? By an application to the court, or to a judge of the court, in or from which the appeal is taken for an order directing a stay. Code of Civil Pro., § 1351 ; 4 Wait's Pr. 332. 648. To what court or term must an appeal he taken in the first instance from a judgment rendered by the city court of New Yorkf It must be taken to the general term of that court. Code of Civil Pro., § 3188. 649. To what court or term must an appeal he taken from a final judgment rendered by the general term of the city court of New York on an appeall The appeal must be taken to the court of common pleas and will be heard at general term. Code of Civil Pro., §§ 3191, 3193. 650. To what court must an appeal be taken from a judgment rendered by a district court of the city of New York f It must be taken to the court of common pleas. Code of Civil Pro., § 3213. Practice. 449 651. To what court must an appeal be taken from a judgment rendered hy the municipal court of Buffalo ? It must be taken to the superior court of that city and must be heard at general term. Baylies on New Trials & App. 414. 662. Mow are judgments rendered hy a justice of the peace re- viewed f The only mode of review is by appeal. Code of Civil Pro., , § 3044. 653. In what cases may an appellant have a new trial in the. bounty court on an appeal from a judgment of a justice of the peace- ? Where an issue of fact or an issue of law was joined before 1;he justice and the sum for which judgment was demanded by either party in his pleading exceeds $50 ; or where in an action to recover a chattel, the value of the property as fixed, together with the damages recovered, if any, exceeds $50, the appellant may in his notice of appeal demand a new trial in the appellate .■court and he thereupon becomes entitled to a new trial whether 4he defendant was or was not present at the trial before the justice. Code of Civil Pro., § 3068. 654. How is an appeal taken from a judgment rendered hy a justice of the peace ? An appeal is taken by serving upon the justice by whom the judgment was rendered, and upon the respondent, a written notice of appeal subscribed either by the appellant or his attorney. •Code of Civil Pro., § 3046. 655. How must the notice of appeal he served upon the justice ? Service of the notice must be made by delivering it to him 3)ersonally, or to his clerk appointed pursuant to law. If the justice is dead, or if neither he nor his clerk can with Reasonable dihgence be found within the county, the service may be made bj' delivering the notice to the appellate court. Unless the justice is dead, the appellant must at the time of serving the notice pay to the person to whom it is delivered, the costs of the action included in the judgment, and the sum of two dollars as the fee of the justice for making the return. Code of Civil Pre, § 3047. 29 450 PBACTI08, 656. When may the notice of appeal he served upon the re- spondent hy serving it upon Ms attorney f It may be so served when the respondent is not a resident of the county and the person who appeared as his attorney upon the trial is a resident of the county. Code of Civil Pro.,, § 3048. 657. Sow inay service be made upon, the Respondent when he is- a resident of the county and did not appear by attorney befon the The notice may be served upon him by delivering it to him personally in any part of the State, or by leaving it at his resi- dence with a person of suitable age and discretion, or if service cannot be made upon him within the county with due diligenffle- either personally or by leaving it at his residence with a suitable person, it may be served upon him by delivering it to the clerk of the appellate court. Code of Civil Pro., § 3048 ; 4 Wait's Pr. 400 ; 3 Wait's Law & Pr. 928. 658. Does the statute require that a party taking an appeal from a judgment rendered by a justice of the peace shall give s^m- rity on the appeal ? If the appellant in his notice of appeal demands a new trial in the appellate court, he must, at the time of the service of the notice upon the justice, give the undertaking required to stay execution upon the judgment. This is necessary to render the appeal effectual. But if he does not demand a new trial in the appellate court, he is not required to give any security on^the appeal unless he desires to stay execution on the judgment. Code of Civil Pro., § 3069 ; 3 Wait's Law & Pr. (5th ed.) 929. 659. IToto may the appellant obtain a stay of execution on ap- peal from a justice' s judgment to the county courts By giving a written undertaking executed by one or more sureties, approved by the justice or by the county judge, to the effect that if the appeal is dismissed, or if judgment is rendered against the appellant in the appellate court, and an execution issued thereupon is returned wholly or partly unsatisfied^ the sureties will pay the amount of the judgment, or the portion thereof remaining unsatisfied not exceeding a sum specified ijn Pbacticte, 451 the undertaking, which must be at least |100, and not less than twice the amount of the judgment ; or, if the judgment appealed from is for the recovery of a chattel, that the sureties will pay the sum fixed by that judgment as the value of the chattel together with the damages, if any, awarded for the taking, with- holding, or detention thereof. Code of Civil Pro., § 3050 ; 3 Wait's Law & Pr. (5th ed.) 929. 660. Of what does the return consist on an appeal to the county ■court for anew trial? It consists of the summons, and each warrant of attachment, order of arrest, requisition to replevy, or execution granted by the justice in the action, with proof of service ; and also the original pleadings or copies, the proceedings on the trial, the judgment and a brief statement of the amount and nature of the claims litigated by the parties. The notice of appeal, and any undertaking given on the appeal, should be annexed to the re- turn. Code of Civil Pro., § 3053 ; 4 Wait's Pr. 416. 661. Of what should the return consist when a new trial in the county court is not demanded in the notice of appeal ? It must contain all the proceedings, including the evidence and judgment. The notice of appeal, and any undertaking given on the appeal, should be annexed to the return. Code of Civil Pro., § 3053 ; 3 Waifs Law & Pr. 941. 662. How should the appellant proceed, if the retwrn of the justice is defective in any essential particular f The appellant should apply to the county court for an order directing a further or amended return ; and, if the order is not complied with, should proceed to have the justice punished as for contempt. Code of Civil Pro., § 3055 ; 3 Wait's Law & Pr. 951 ; 4 Wait's Pr. 431. 663. If a justice of the peace, whose judgment is appealed from, should die before making a return to the county court, would the appeal he dismissed on account of the impossibility of obtaining a return ? It would not, the county court would receive affidavits or examine witnesses as to the evidence and other proceedings taken before the justice and as to the judgment rendered by him, ■452 Pbacticb. and would determine the appeal as if a return had . been dulj- niade. Code of Givil Pro., § 3056. 663. If your client had appealed to the county court from a judgrrient rendered against Mm hy a justice of the peace and the appeal had been improperly dismissed by the appellate court before' it could be brought to a hearing, how would you proceed to protect your clients rights ? An appeal from the order of dismissal or from the judgment entered thereon would be the most direct remedy, and one to which the appellant would be clearly ejititled ; and it seems that it might be possible to compel the court to reinstate the appeal and proceed to judgment by a writ of mandamus. Baylies on New Tr. & App. 363 ; 5 Wait's Pr. 558 ; Moses on Mandamus, 26; But see Fiero on Spec. Pro. 56. 664. Upon what papers must the county court hear an appeal taken from a justic^ s judgment where a new trial is not demanded in the appellate court f The appeal must be heard upon the original papers or upon a certified copy. Code of Civil Pro;, § 3063. 665. How are technical errors, and defects not affecting the merits, disposed of in the county court upon the hearing of an appeal f Such errors and defects are disregarded and the court pro- ceeds to render judgment according to the justice of the case. Code of Civil Pro., § 3063. 666. In what cases may the appellate court order a new trial be- fore the same or another justice ? A new trial may be ordered where the appeal is taken by a defendant who failed to appear before the justice either upon the return of the summons or at the time to which the trial of the ac- tion was adjourned, and who shows by affidavit or otherwise that manifest injustice has been done and renders a satisfactory ex- cuse for his default. Code of Civil Pro., § 8064; 4 Wait's Pr. 464 ; 3 Wait's Law & Pr. 971. 667. State generally the mode of proceeding in th» county court Pkactice. 453 where a new trial is demanded in that court in a proper case, on, appeal from a judgment of a justice of the peace? Upon an appeal to the county court for a new trial, the ac- tion is deemed at issue in the county court after the expiration of ten days from the filing of the return ; and all proceedings Upon the appeal including the entry, enforcement and review of the judgment are substantially the same as if the action had been commenced in the county court. Code of Civil Pro., § 3071. 668. What constitutes the judgment roll on an appeal to the county court from a judgment of a justice ? The judgment-roll consists of (1) the return of the justice, or a certified copy thereof, the notice of appeal, and the undertaking,, if any has been given ; (2) the verdict, report, or decision, and each offer if any made in accordance with the provisions of the Code ; (3) a certified copy of the judgment, together with each notice of exceptions, or case, which is then on file ; and (4) every other paper then on file, and a certified copy of every order which in any way involves the merits or necessarily affects the judg- ment. Code of Civil Pro., § 3061. ^ 669. Mow are costs awarded on appealfrom a justice's judgment to the county court where a new trial in the latter court is not demanded ? 1. If the appeal is dismissed for a failure to bring it to a hear- ing costs are not awarded to either party. 2. If the judgment is reversed for an error in fact not affecting the merits, or if a new trial is directed before the same or another justice, the costs of the appeal are in the discretion of the court. 3. If the judg- ment is affirmed costs are awarded to the respondent. 4. If the judgment is reversed costs are awarded to the appellant. 5. If the judgment is affirmed only in part, the costs or such part there- of as to the appellate court seems just, not exceeding ten dollars, besides disbursements, may be awarded to either party. Code of Civil Pro., § 3066. 670. A plaintiff in an actionin justices' court recovered judgment ■for flOO, and costs. From this judgment the defendant appealed to the county court demanding a new trial in that court. Within fifteen days after the service of the notice of appeal the plaintiff 454 Practice. duly served upon the defendant a written offer to aUow judgment to be rendered in the appellate court in hisfmor for $50, which offer the defendant did not aoeept. On the trial in the county court a verdict for ^\2 was rendered in favor of the plaintiff. Which party was entitled to costs of the appeal ? Neither party was entitled to costs. As the recovery was more favorable to the defendant than the sum offered he was not- liable for costs to the plaintiff : and as the Code makes no pro- vision for the allowance of costs to the plaintiff in such case, none could be awarded to him. Zoller v. Smith, 45 Hun, 319. 671. If a judgment rendered hy a justice of the peace has been collected, and such judgment is reversed on appeal, in what manner is the appellant restored to his rights ? In such case the appellate court may make or compel restitu- tion of property or of a right lost by means of the erroneous judgment, but not so as to affect the title of a purchaser in good faith and for value of property sold by virtue of a warrant of attachment in the action or an execution issued on the judgment. In that case the appellate court may compel the value, or the purchase-price to be restored, or deposited to abide, the event of the action, as justice requires. Code of Civil Pro., § 3058 672. What notice is required of an application for an order for restitution in such cases ? Six days notice must be given. Code of Civil Pro., § 3058. 673. What is an order? Any direction of a court or judge made in an action or special proceeding, if in writing, and not contained in a judg- ment, is an order. Code of Civil Pro., § 767 ; 4 Wait's Pr. 572. 674. What is a motion ? It is an application for an order. Code of Civil Pro., § 768, 675. What are enumerated motions ? Enumerated motions are motions arising on special verdict, issues of law ; cases ; exceptions ; appeals from judgments sus- taining or overruling demurrers; appeals from a judgment or order granting or refusing a new trial in an inferior court; ap; Pbactice. 455 peals to the General Term of the Supreme Court or of a superior •city court from a final or interlocutory judgment rendered in the rsame court ; agreed cases submitted under section 1379 of the Code -f appeals from final orders and decrees of Surrogates' Courts ; and the matters provided for by sections 2085, 2099 and 2138 of the Code relating to writs of mandamus, prohibition and certiorari. Rule 38. 676. What are non-enwrnerated motions? Non-enumerated motions include all other questions sub- mitted to the court. Rule 38. 677. Where must non-enumerated motions he heard P They must be heard at Special Term unless the law other- wise directs. Rule 38. 678. Is it permissible for a parti/ to make separate motions for each objection to his opponents proceedings ? It is not. Where a party objects to any proceedings in a ■cause, he must embody all his objections in one motion. Thus, where a party moved to set aside a demurrer as irregular, and failing, moved for judgment upon it as frivolous, the latter motion was denied. 1 Till. & S. Pr. 409; 4 Wait's Pr. 572. 679. When the motion is based upon grounds ivhich do not appear upon the face of the pleadings or other papers in the case, ifi what manner should the application be made ? In such case it is usual to make application upon affidavit setting forth the facts upon which the party relies for the relief demanded. In some cases, it is proper to base the motion upon & petition, as for example in certain special proceedings, though the word " affidavit" as used in the Code, includes a verified (petition or answer in a special proceeding, and also a verified -pleading in an action. See 1 Till. & S. Pr. 409; Code of Civil Pro., § 3343. 680. Where and before whom may an affidavit be taken? , It may be taken before a judge, clerk, deputy-clerk, or ^special deputy-clerk of a court, a notary public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk. 456 Practice. •or commissioner of deeds, within the district in which the officer is authorized to act. Code of Civil Pro., § 842. , ' 681. What are the requisites of an affidavit ? Every, affidavit must show on its face the county in wliich it ■was taken, so that the court may know that it was made b.efore an officer having jurisdiction, or it will be a nullity. The names of all the deponents should be mentioned. If made by several deponents, it should show that they were severally sworn. It must appear before whom the affidavit was taken. This appears by the words "before me " in the jurat ; and the omission;, of these words there have been held to be fatal. The jurat should state the time when the oath was made, even the day of the month. 1 Till. & S. Pr. 410, 411 ; 4 Wait's Pr. 580. 683. In order that affidavits made in any other State or country, may he read upon a motion in this /State, how should they he- taken ? ' Except as otherwise specially prescribed by law, an affidavit may be taken without the State before an officer authorized by the laws of the State to take and certify the acknowledgment and proof of deeds to be recorded in the State ; and when certified by him to have been taken before him and accompanied with the like certificates as to his official character and the genuineness of his signature as are required to entitle a deed acknowledged before him to be recorded within the State, may be used as if taken and certified in this State by an officer authorized by law to take and certify the samg. Code of Civil Pro., § 844. 683. Is a defective title sufficient to render an affidavit invalid T No. An affidavit made without a title, or with a defective title, is as valid and effectual, for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding; in which it is made. Code of Civil Pro., § 728. 684. What does the title of an affidavit embrace ? The title of an affidavit embraces its entire heading, namely^ the name of the court as well as the names of the parties. Baylies* Tr. Pr. 519. PeacticE'. 451!' ' 685. In what judicial district must a motion on notice be. m.ctde in an action in the Supreme Court ? A motion, upon notice, in an action in the supreme court, must be made within the judicial district in which the action is triable, or in a county adjoining that in which it is triable, except- that where it is triable in the first judicial district, the motion must be made in that district; and a motion, upon notice, cannot be made in that district in an action triable elsewhere. But this does not apply to a case, where it is specially prescribed by law that a motion may be made in the county where the applicant, or other person to be affected thereby, or the attorney, resides. Code of Civil Pro., § 769 ; 4 Wait's Pr. 592 ; Baylies' Tr. Pr. 524. ■ 686. What judge may make an ex parte order ? Where an order, in an action, may be made by a judge of the court, out of court, and without notice, and the particular judge is not specially designated by law, it may be made by any judge of the court, in any part of the State ; or, except to stay proceedings after verdict, report, or decision, by a justice of the Supreme Court, or by a judge of a superior city court within the citj' wherein his court is located, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides. Code of Civil Pro., § 772 ; 4 Wait's Pr. 592 ; Baylies' Tr. Pr. 526. 687. By what judg^ may an order so made he vacated or mod- ified? Where such an order grants a provisional remedy, it can be vacated only in the mode specially prescribed by law ; in any other case, it may be vacated or modified, without notice, by the judge who made it, or, upon notice, by him, or by the court. Code of Civil Pro., § 772. 688. In what manner are motions brought before the court ? As a general rule all questions for argument and all motions must be brought before the court by a notice of motion or by an ordei: to show cause. If, however, the statute permits a partic- ular motion to be made ex parte, or the adverse party has no interest in the subject of the motion, no notice is required. Baylies' Tr. Pr. 513 ; 4 Wait's Pr. 595. 458 Pbactice. 689. If a motion is made on notice, at what time mu»tthe mtice be served on the adverse party as a general rule ? If the notice is served by mail, it must be depogited in the post-office at least sixteen days before the time fixed for the liearing. If the notice is personally served, it must be served at least eight days before the time appointed for the hearing unless the court or a judge thereof, upon an affidavit showing grounds therefor, makes an order to show cause why the application should . not be granted, and in the order directs that service thereof, less than eight days before it is returnable shall be suffi- cient. Code of Civil Pro., § 780. 690. If a motion, made ex parte, is denied, can the moving party maJce another application to another judge in reference to the same matter, and in the same stage of the proceedings ? He cannot. A subsequent application in reference to the same matter at the same stage of proceedings can only be made to the same judge or to the court. If it is made to another judge •an order granted thereon will be vacated, and the person making the application, with knowledge of the previous application, will be punished by the court for contempt. Code of Civil Pro., §§ 776, 778. 691. 'What statement, as to a previous application, must he con- tained in every affidavit upon which an ex parte motion is based ? The affidavit must state whether any previous application has been made for the order, and if made to what court or judge, and what order or decision was ma,de thereon, and what new facts, if any, are claimed to be shown. Rule 25. 693. What proceedings may he had when the party on whom a notice of motion has been served fails to appear at the time and place specified in the notice f In that case the moving party is entitled to ah order for the relief specified in the notice of motion, on proof of due service of the notice and motion papers, unless the court otherwise directs. Rule 37 ; Baylies' Tr. Pr. 629 ; 4 Wait's Pr. 607. 693. If a motion is based upon pleadings which have been Pkacticb. 459 ■ahead^ served, is it necessary to serve new copies with the notice of I,? It 19 not. Baylies' Tr. Pr. 528. 69^. What is required of a notice of motion based upon an irreffuldrity ? The notice must specify the irregularity complained of. Rule 37 ; 4 Wait's Pr. 596. 696. Can an order to show cause he made where the ordinary ■eight days' notice of motion can le given ? It cannot. Rule 37. 696. Suppose an order is served requiring a party to show cause ■at term to he held eight days after the date of the order ; what ■course may he pursued hy the party so served ? He may treat the order to show cause as a nullity. Rule 37. 697. Suppose an order to show cause is served upon a party unaccompanied hy a copy of the affidavit on which it was granted ; what remedy has the party served ? He may disregard the order. Court of Civil Pro., § 782. 698. What is the effect of a party's accepting leave to renew a motion ? By availing himself of leave given to renew a motion, the moving party loses his right to appeal from the original decision. 1 Till. & S. Pr. 443. 699. Upon what terms may a notice of motion he withdrawn ? A notice of motion can be withdrawn only upon the pay- ment of the costs of the motion. But, where the motion includes two distinct matters, one may be withdrawn without payment of costs. 4 Wait's Pr. 597. 700. In case the adverse party has any objections to a motion, what preparations should he make for opposing it ? He should consider (1) the defects, if any, in his opponent's proceedings ; (2) his own defense upon the merits. For objec- tions of the first class must be raised first upon the hearing, or they will be considered waived ; and they must be raised at the 60 Peactice. ^ , earing, if in any way practicable. In order to teSist .upon^.the, lerits, affidavits should be prepared in the usual manner; if here is not time to do so within the period allowed by the otice, application should be made upon affidavit for a postpone- lent of the hearing, showing some reason why the papers cannot e prepared in time. 1 Till. & S. Pr. 430 ; 4 Wait's Pr. 602, 03. Evidence. 461 CHAPTER XIX. EVIDENCE. • J. In its legal acceptation, what does the word " evidence " in~ dude f It includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is estab- lished or disproved. 1 Greenl. Ev., § 1. I 2. What distinction do writers make between the terms " evir dence" and "proof P " The most accurate writers employ the term "evidence " to (denote the medium by which truth is established, while the term "proof" is applied to the effect of evidence. When the evidence is sufficient to produce a conviction of the truth of the fact to be established, it amounts to proof. 1 Greenl. Ev., § 1 ; 3 Wait's Law & Pr. 374. ;,3./wto ivhat divisions is evidence usually classed? In two, namely: -Z)iVect . evidence, which consists in the testimony, whether immediately or mediately, derived from those who had actual knowledge of the principal or disputed fact ; or Indirect or inferential evidence, where an inference is ,made as to the truth of the disputed fact, not by means of the actual knowledge which any witness had of the fact, but from collateral facts ascertained by competent means. 3 Wait's Law & Pr. 375, 376. 4:. Give illustrations of the distinction between direct evidence, and circumstantial, or inferential evidence. If a witness testifies that he saw A inflict a mortal wound on B,of which he instantly died, this is a case of direct evidence. If a witness testifies that a deceased person was shot with a pistol, and the wadding is found to be part of a letter, addressed to the prisoner, the residue of which is discovered in his pocket ; here the facts themselves are directly attested ; but the evidence they afford is termed circumstantial or inferential; and from 462 Evidence. these facts, if unexplained by the prisoner, the jury may, or may not, deduce or infer, or presume, his guilt, according as they are- satisfied, or not, of the natural connection between similar facts^ and the guilt of the person thus connected with them, 1 Greenl. Ev., § 13. 5. What is meant hy competent evidence? ^ It is that which the very nature of the thing to be proVed requires, as the fit and appropriate proof in the particular case, such as the production of a writing, where its contents are the subject of inquiry. Evidence, rejected by the law as inadmis- sible, is denominated incompetent evidence. 1 Greenl. Ev., § 13 ; 3 Wait's Law & Pr. 376. 6. Give the distinction between evidence that is relevant and thctt which is irrelevant. Evidence is relevant when it bears upon any of the issues to be tried, or when it bears upon any question whicli is to be determined upon the evidence. It is irrelevant when it does not bear upon any issue or question. 3 Wait's Law & Pr. S7T. 7. What is cumulative evidence f It is evidence of the same kind to the same point. Thus,, if six witnesses have sworn in a similar manner in relation to a. particular transaction, it would be cumulative evidence to call several others to the same point. 1 Greenl. Ev., § 2 ; 3 Wait's Law & Pr. 377. 8. When is evidence said to he conclusive ? Evidence is conclusive when it does not admit of explana- tion or contradiction. It is evidence, which of itself, whether contradicted or uncontradicted, explained or unexplained, is sufficient to determine the matter at issue. Thus, a record,, unless impeached for fraud, is an instance of conclusive evi- dence. 3 Wait's Law & Pr. 377. 9. What is meant hy satisfactory or sufficient evidence f By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof which ordinarily sat- isfies an unprejudiced mind beyond reasonable doubt. Questions respecting the sufficiency of evidence belong exclusivel;j^ to thff jury. 1 Greenl. Ev., § 2; 1 Stark. Ev. 614. EviDBiTCB. 463 10. Is it within the province of the jury to decide as to the com- ■petency and admiseibility of evidence ? It is not. All questions respecting the competency and ad- missibility of evidence are exclusively within the province of the court. 1 Stark. Ev. 614. 11. Mention some of the things of which every court takes jwr- dicial notice without evidence to prove their existence, or their extent or validity. Courts are bound to take notice of the existence of all gener- al statutes, and of the rules of the common law, and the de- bisions of the superior courts, without any proof whatever upon the subject. They also take notice of the territorial extent of the jurisdiction and sovereignty exetcised de facto, by their own government, and of the local divisions of their country into States, provinces, counties, cities, towns, local parishes and the like, Bo far as the political government is concerned or affected. 3 Wait's Law & Pr. 377; 1 Greenl. Ev., § 4. 12. Do our courts take judicial notice of foreign laws? They do not ; such laws must be proved like other facts. So, the laws of other States must be proved, if they differ from the common law. 3 Wait's Law & Pr. 379, 380. 13. What is meant hy the term " presumption," and into what two branches is presumptive evidence usually divided ? A presumption is said to be " an inference as to the exist- ence of a fact not actually known, arising from its necessary or usual connection with others which are known." The general head of presumptive evidence is usually divided into presumptions; of law and presumptions of fact. Stark. Ev. 742 ; 1 Greenl. Ev., § 14; 3 Wait's Law & Pr. 421. 14. Of what do presumptions of law consist ? They consist of those rules which, in certain cases, either forbid or dispense with any ulterior inquiry. They are founded either Upori the first principles of justice, or the laws of nature ; x)r the experienced course of human conduct and affairs, and the connection usually found to exist between certain things* 1 "Greenl; Ev., § 14 ; 2 Best onEv. 656, § 304. - .' -^ ii- ( 464 ' Evidence, "' 15. What are presumptions of fact f They are merely natural presumptions derived wholly and directly from the circumstances of the particular case, by means of the common experience of mankind, without the aid or con- trol of any rules of law whatever. Such, for example, is the in- ference of guilt, drawn from the discovery of a broken knife in the pocket of the prisoner, the other part of the blade being found sticking in the window of a house, which, by means of such an instrument, had been burglariously entered. 1 Greenl. Ev., § 44; 2 Best on Ev. 554, § 303. 16. How do you determine whether a presumption is one of law or one of fact? To determine whether a presumption is one of law or one of Jact, it is merely necessary to ascertain what kind of inference is .'to be drawn, whether it is one of fact or one of law. If, upon certain evidence given, it is important to ascertain the existence of some other fact, or the truth or falsity of some allegation of fact, the presumption is one of fact. If, on the contrary, no in- ference of additional facts is necessary in order to make a decis- ion, then the presumption is one of law. 3 Wait's Law & Pr. 422. 17. Grive some familiar illustrations of f resumptions of law ? It is a presumption of law that a person's motives are good and that he is honest in his transactions, in the absence of evi- " deuce showing fraud or improper motives. So general sanity is presumed, because tliat is ordinarily the condition of the mind. A man is presumed to intend those necessary consequences which result from his voluntary or deliberate acts. And a written instrument is presumed to have been executed and delivered at the time it bears date. 3 Wait's Law & Pr. 422. 18. What are some of the conclusive presumptions of law, made in favor of judicial proceedings ? The records of a court of justice are presumed to have been correctlj^ made ; a party to the record is presumed to have been interested in the suit; and after verdict, it will be presumed that those facts, without proof of which the verdict could not have been found, were proved, though they are not expressly and dis- Etidbnce. 465 tinctly alleged in the record ; provided it contains terms suffi- <3iently general to comprehend them in fair and reasonable intend- ment. 1 Greenl. Ev., § 19 ; 2 Best on Ev., 558, § 306. 19. In the production of evidence to the jury, is it necessary that the evidence should hear directly upon the particular matters in issue ? It is an established rule, that the evidence offered must cor- respond with the allegations, and be confined to the point in issue; but it is not necessary that the evidence should bear di- rectly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; although, alone, it might not justify a verdict in accordance with it. 1 Greenl. Ev., §§ 50, 51 ; 3 Wait's Law & Pr. 472. 20. Is it necessary that the relevancy of evidence should appear Law & Pr. 441. ■ * 33. Does the rule as to the best evidence, etc., have reference to the measure or quantity of the evidence offered f The rule relates, not to the measure or quantity of the evidence offered, but to its quality, when compared with some other evidence of superior degree. It is not necessary, in point of law, to give the fullest proof that every case will admit of. Thus, if there are several eye witnesses to a particular fact, it may be proved by the testimony of one or more of them, without calling the others. 3 Wait's Law & Pr. 441. 34. Grive the distinction between primary and secondary evi- dence f Primary evidence is that kind of proof, which, under any possible circumstances, affords the greatest certainty of the fact in question ; and it is illustrated by the case of a written docu- ment; the instrument itself being always regarded as the primary or ■ best possible evidence of its existence and contents. All evidence falling short of this in its degree, is termed secondary. Evidence which carries on its face no indication that bettey Evidence. 469 Temains behind, is not secondary, but primary. 1 Greenl. Ev., § 84; 2 Best on Ev., 794, 795, § 472. 35. In lohat class of cases is secondary evidence most frequently excluded, and the best evidence required f It most frequently occurs, where oral evidence is offered in the place of written instruments. These instruments may be reduced to three classes : 1. Those instruments which the law requires to be in writing ; 2. Those contracts which the parties have put into writing ; and, 3. All other writings, the existence of which is disputed, and which are material to the issue. 1 Greenl. Ev., § 85 ; 3 Wait's Law & Pr. 441. 36. Mention some of the instruments under the first class, which the law requires to he in writing, and for which oral evidence ca/rir not he suhmitted? They are : records, public documents, official examinations, deeds of conveyance of lands, wills, other than nuncupative, promises to pay the debt of another, and other writings men- tioned in the Statute of Frauds. In all these cases, the law haviug required that the evidence of the transaction should be in writing, no other proof can be substituted for that, as long as the writing exists, and is in the power of the party. 1 Greenl. Ev., § 86 ; 3 Wait's Law & Pr. 441, 442. 37. Why cannot oral proof he substituted for the written evi- dence of any contract which the parties have put in writing ? ■ Because the written instrument in such case may be regarded in some measure, as the ultimate fact to be proved, especially in the cases of negotiable securities; and in all cases of written contracts, the writing is tacitly agreed upon, by the parties them- selves, as the only repository and the appropriate evidence of their agreement. The written contract is not collateral, but is •of the very essence of the transaction. 1 Greenl. Ev., § 87. 38. On what ground is secondary evidence rejected, in the case of writings, the existence of which is disputed, and which are i material to the issue ? ' By the rejection of secondary evidence in such case, the court acquires a knowledge of the whole contents of the instru- ment, which may have a different effect from the statement of d» 470 Evidence. part ; for there is extreme danger in relying on the recollection of witnesses, however honest, as to the contents of written in- struments. 1 Greenl. Ev., § 88 ; 3 Wait's Law & Pr. 446. 39. Suppose the written communication or agreement between the parties is merely collateral to the question in issue; in such case, need it be produced ? It need not, as for example : Where the writing is a mere proposal, which has not been acted upon ; or, where a written memorandum was made of the terms of the contract, which was read in the presence of the parties, but never signed, or proposed to be signed ; or, where, during an employment under a written contract, a separate verbal order is given, and in many similar, instances. 1 Greenl. Ev., § 89. 40. Crive some illustrations of writings where there is no ground for the exclusion of oral evidence. This class includes all writings not falling within either of the three classes already described. Thus, the payment of money may be proved by oral testimony, though a receipt be taken ; in trover, a verbal demand of the goods is admissible, though a demand in writing was made at the same time ; and the admis- sion of indebtedness is provable by oral testimony, though a writ- ten promise to pay was simultaneously given, if the paper be inadmissible for want of a stamp. 1 Greenl. Ev., § 90. 41. What are some of the exceptions to the rule, which requires the best evidence f Where it is necessary to prove the contents of any record, or of proceedings in a court of justice, or in public books or registers, it is sufficient, in general, to produce an examined copy. So it is not in general^ necessary to prove the appoint- ment of public officers, by producing record evidence of their election or appointment, for this would be attended with gen- eral inconvenience. A further relaxation of the rule has been admitted where the evidence is the result of voluminous facts, or of the inspection of many books and papers, the examination of which could not conveniently take place in court. 3 Wait's Law & Pr. 447 ; 1 Greenl. Ev., §§ 91-95. 42. What is meant hy hearsay evidence ? In its legal sense it denotes that kind of evidence which does Evidence. 471- not derive its value from the credit to be given to the witness iimself, but rests also, in part, on the veracity and competency of some other person. As a general rule, hearsay evidence is totally inadmissible. 1 G-reenl. Ev., § 99 ; 3 Wait's Law & Pr. 429. 43. State a principal ground of objection to the admission of Jiearsay evidence. The great bulk of the proof made in the trial of actions is the testimony of witnesses, orally delivered ; and, as a test of truth, it is iudispensable to the due administration of justice, that every living witness should be subjected to the ordeal of a ■cross-examination. But testimony derived from the relation •of third persons, even when the informant is known, cannot be subjected to this test, nor is the statement under oath; and, besides, it is frequently impossible to ascertain through "whom, or how many persons, the narration has been transmitted from the original witnesses of the fact. 3 Wait's Law & Pr. 430. 44. Are there any exceptions to the rule which excludes hearsay ■evidence ? There are ; but those cases in which it is received any of that character which sufficiently guards against frauds ; and, in most of them, the rejection of the evidence would work a greater mischief than could result from its reception. There are also ■some cases in which hearsay is treated as original evidence. 3 Wait's Law & Pr. 430. 45. In what cases does hearsay partake of the nature of original evidence f In cases where it is material to inquire into the demeanor, the conduct and mental feelings of an individual at a particular period, the expressions used by the individual at the period in -question, are in their nature original evidence ; for they are the thing itself which is inquired into, as far as outward behavior is important ; and as evidence of existing inward sentiments, they •are unlike a statement of past occurrences, for they derive their credit from being usually identified vnth, and naturally resulting ,' from, particular corresponding feelings. 3 Wait's Law & Pr 430. 472 Evidence. 46. What is the rule as regards the admission of hearsay evi- dence in matters of 'public or general interest ? In cases of this kind it is sometimes admissible, as for ex- ample, for the purpose of showing that a particular person holds a specified office or a public employment as an officer. Thus, in au action brought by an overseer of the poor to recover a penal- ty, the character in which he sues may be proved by reputation.. So such evidence is sufficient to show that the plaintiff is trustee or collector of a school district. 3 Wait's Law & Pr. 432. 47. In m,atters of pedigree, such as descent or relationship, mar- riages, births or deaths, what is the rule as to the admission of hearsay evidence ? In such matters, the declarations of the family or kindred are admissible as evidence, on the principle that it is the natural effusion of a party who must know the truth, and who speaks upon an occasion where he stands in an even position without any temptation to exceed or to fall short of the truth. 3 Wait's Law & Pr. 483 ; 1 Greenl. Ev., §§ 103, 104; 2 Best on Ev. 845^ § 498. 48. In what case are entries in the family Bible, or register, ad- missible as evidence f They are evidence, if made by the father, or under his di- rection, and he is dead. But when such entries are recent, and the father is present in court, or can be produced there, or when the entries are made by the motlier, after the father's death, and she is present in court, or can be produced, such entries will be rejected. 3 Wait's Law & Pr. 434. 49. Are dying declarations admissible as evidence on the triaZ of civil actions ? They are not ; but are sometimes received in evidence in criminal cases. 3 Wait's Law & Pr. 485. 50. What is the rule as to the admission of declarations against interest made by persons since deceased P It is a well-settled rule that declarations of persons, sinca deceased, whether the declarations were verbal or written, are admissible in those cases in which the persons making them are presumed to be cognizant of the subject-matter of the declara- tions, and where their declarations apparently operate against Evidence. 475 ' their own interest, whetlier pecuniary or proprietary. 3 Wait's Law & Pr. 435 ; 1 Greenl. Ev., § 147 ; 2 Best on Ev. S49, § 600. 51. Upon what ground are such declarations received in evi- 'dence ? It is presumed when declarations are made under such circumstances, that they are entitled to credit, because the re- gard which men pay to their own interest may safely be consid- ered as a sufficient guaranty against their prejudicing themselves by any erroneous statement ; and the assumed tendency of the declarations precludes the possibility of any fraudulent state- ment. 3 "Wait's Law & Pr. 435. 52. Suppose a witness has been sworn and examined by the parties upon the trial of an action, and he subsequently dies, is hi» evidence admissible in a subsequent action between the same parties^ when the point in issue is the same as that in the former trial ? It is ; for tlie evidence in such case is not only free from the objection of being extra judicial, or being without oath, but the party also who is to be affected by it had the power of cross- examining the witness, under the same circumstances as on the subsequent trial. 3 Wait's Law & Pr. 438; 1 Greenl. Ev., §163 ; 2 Best on Ev. 842, § 496. 53. By whom may the proof of what the deceased witness swore be made. It may be made by any person who heard his testimony, even though he took no minutes of the evidence. 3 Wait's Law & Pr. 438 ; 2 Best on Ev., § 496. 54. Is it necessary to prove the precise words used by a de- ceased witness ? It is not. Such a thing is utterly impracticable, and is no more required than it would be to give the manner and tones of voice of such witness. If the substance is fully given, it is all that can be required. 3 Wait's Law & Pr. 439 ; 1 Pliil. Ev. 399, note ; 1 Greenl. Ev., § 165. 55. Grive the distinction between admissions and confessions. In our law the term admission is usually applied to civil trcmsactions, and to those matters of fact, in criminal cases. 474 EviDBsrcE. which do not involve criminal intent ; the term confession beings generally restricted to acknowledgments of guilt. The rules of evidence are in both cases the same. 1 Greenl. Ev., § 170. 56. How are the admissions of a party to the action regarded? It is a general rule that the admissions of a party to the action are evidence against him ; and the statements which a party has made under oath as a witness are competent evidence against him as an admission. 1 Greenl. Ev., § 171 ; 3 Wait's Law & Pr. 396. 57. May a party to the action he hound hy the statements of a third person f In some cases he may. Thus, where a party is applied to for information in relation to an uncertain or disputed matter, and he refers the applicant to a third person, the answer of such third person will be competent evidence against the party making such reference. But such declarations must be strictly within the subject-matter in relation to which the reference is made, otherwise they are not evidence. 3 Wait's Law & Pr. 397. 58. In what cases will the admissions of the wife hind the hus- band ? In those cases only where she has authority to make them. This authority does not result merely from the marriage relation^ but is a question of fact to be found by the jury, as in other cases •of agency ; for, though this relation , is peculiar in its circum- stances, from its close intimacy and its very nature, yet it is not peculiar in its principles. The general rule is that, where a hus- band permits his wife to act as his agent in any particular business he adopts her acts and admissions in reference to such business, and is bound by them. 1 Greenl. Ev., § 185 ; 3 Wait's Law&Pr. 397. 59. To what extent do the admissions of attorneys or counselors hind their clients ? Such admissions are binding in all matters relating to the progress and trial of the cause. But, to this end, they must be distinct and formal, or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of Evidence. 475 some rule of practice, or of dispensing with the formal proof of some fact at the trial. In such cases they are in general conclu- sive, and may be given in evidence even upon a new trial. 3 Wait's Law & Pr. 399 ; 1 Greenl. Ev., § 186. 60. What is the rule as to the admissions of an agent, as evidence ■against his principal ? The declarations, representations or admissions of an agent, which are made while acting within the scope of his authority, and in the discharge of his duties as agent, are admissible as evidence against his principal. Declarations or admissions which are not made within the scope of the agent's authority, nor while in the transaction of the business of the agency, are inadmissible ; and this is specially true when the admission is made after the termination of tlie agency, or after the transaction by the agent •is closed. 3 Wait's Law & Pr. 400. 61. Is the admission of a partner admissible as evidence against ■other members of the firm ? It is, in many cases ; but, before such admission can be re- ceived in evidence, the existence of the partnership must be established. After a dissolution of the partnership, neither part- ner can make an admission which is binding upon his former partner. 8 Wait's Law & Pr. 403. 62. In ivhat cases will the admissions of a principal be received cs evidence, in an action against the surety upon his collateral un- •dertaking ? In those cases only wliere such admissions are connected with the business in respect of wliich the surety becomes bound, and are made by the principal at the time of transacting that .business. 3 Wait's Law & Pr. 404 ; 1 Greenl. Ev., § 187. 63. Are admissions, which are made under circumstances of .restraint, receivable in evidence ? rhey are, provided the compulsion under which they are given is legal, and the party was not imposed upon or under -duress. 1 Greenl. Ev., § 193. 64. What is the nature of implied admissions ? Admissions are sometimes implied from the assumed Ian- 476, Evidence. guage, character or conduct of a party. In such cases, the exist- ence and truth of the fact to be proved is sometimes assumed in. the expressions which are given in evidence. Thus, an agent is employed to sell goods and pays over the proceeds to his em- ployer, and a demand is made by the latter for the money arising upon the sale of certain property. A declaration by the agent, in answer to such demand, that he had paid over all the money, is an implied admission of the sale, and dispenses with proof of that fact. 3 Wait's Law & Pr. 411. 65. In order that an admission may have effect, in what manner must the statement containing such admission he received ? The whole of the statement is to be received together ; and this is necessary in order that the court and jury may be enabled to judge of the true extent of the admission, which, when taken entire, will often have a different import from that which a par- tial account might convey. 3 Wait's Law & Pr. 415 ; 1 Greenl. £v., § 201. 66. In actions for a tort, are the admissions of one defendant adm,issihle against his co-defendant ? As a general rule, they are not, even when the wrongful ac*". was committed by them jointly. 3 Wait's Law & Pr. 419. 67. What is the distinction between judicial confessions and extra-judicial confessions f I The former are those which are made before the magistrate, or in court, in the due course of legal proceedings. The latter are those which are made by the party elsewhere than before a magistrate or in court. 1 Greenl. Ev., § 216. 68. What must he shown with reference to any confession before it can he received in evidence in a criminal case ? It must be shown that it was voluntary. A confession; forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be consid- ered as the evidence of guilt, that no credit ought to be given to it ; and, therefore, it is rejected. 1 Greenl. Ev., § 219. 69. What is the foundation of the rule which forbids the dis- Evidence. 477 closure, in a court of Justice, of all professional communications between a client and his legal adviser P This rule is founded on grounds of public policy ; for greater mischiefs would probably result from requiring or permitting the admission of such evidence, than from wholly rejecting it. If such communications were not protected, no man would dare to consult a professional adviser with a view to his defense, or to the enforcement of his rights ; and no man could safely come into a court, either to obtain redress or to defend himself. 1 Greenl. Ev., §§ 236-238 ; 1 Wait's Act. & Def. 468. 70. Does this protection, which the law affords to such commu- nications, cause with the termination of the suit, or other litigation .or business, m ivhioh they were made ? It does not ; nor is it affected by the party's ceasing to em- ploy the attorney and retaining another ; nor by any other change ■of relations between them ; nor by the death of the client. The seal of the law once fixed upon them remains forever, unless re- moved by the party himself, in whose favor it was there placed. 1 Greenl. Ev., § 243; 1 Wait's Act. & Def. 471. 71. Suppose a client makes communications to his counsel in the presence of a third person not connected with the latter, does the privilege extent to such third person ? It does not ; and he may be compelled to testify what he has heard upon the subject. 1 Wait's Act. & Def. 470. 72. If the commimication is a privileged one, audit was made iy two or more clients jointly to their mutual legal adviser, will the consent of one of them he sufficient to remove the seal of con- fidence ? It will not ; nor will the consent of even a majority be suf- ^ficieut ; and one or more of the clients cannot require a disclos- ure of the communication as evidence against the others, with- out their consent. 1 Wait's Act. & Def. 469. 73. Are confidential communications, made to ministers of the gospel, or to medical persons, privileged from disclosure as evi- dence in this State ? The Code provides that a clergyman or other minister of «.ny religion shall not be allowed to disclose a confession made 478 Evidence. to him in his professional character in the course of discipline enjoined by the rules or practice of the religious body to which he belongs ; and that a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity and which was necessary to unable him to act in that capacity. Code of Civil Pro., §§ 833, 834. 74. Crive some other instances of cases in which evidence is ex- cluded from motives of public policy ? Among these may be mentioned the case of judges and ar- bitrators ; secrets of State ; the proceedings of grand jurors ; in- decent evidence, or that which is injurious to the feelings or in- terests of third persons ; and communications between husband and wife. 1 Greenl. Ev., §§ 249-254. 75. If papers, or other subjects of evidence have been illegalli/ taken from the possession of the party against whom they are offered, is this a valid objection to their admissibility ? It is not; if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or un- ' lawfully, nor will it form an issue, to determine that question^ ' 1 Greenl. Ev., § 254 a. 76. What is the general rule of law as to the admission of parol evidence in relation to written instruments ? It is a general and inflexible rule that whenever written in- struments are appointed, either by the requirements of law or by the compact of the parties, to be repositories and memorials of truth, any other evidence is excluded from being used, either as a substitute for such instruments, or to contradict or alter them. In other words, as the rule is more briefly expressed, " parol contemporaneous evidence is inadmissible, to contradict or vary the terms of a valid written instrument." 3 Wait's Law & Pr. 621 ; 2 Pliil. Ev. 350. 77. In what sense are the terms of every written instrument to he understood f They are to be understood in their plain, ordinary, and pop- ular sense, unless they have generally, in respect to the subject- Evidence. 479 Inatter, as, by the known usage of trade, or the like, acquired a peculiar sense, distinct from the popular sense of the same words ; or unless the context evidently points out that, in the particular instance, and in order to effectuate the immediate intention of the parties, it should be understood in some other and peculiar -sense. 1 Greenl. Ev. § 278. 78. Is parol evidence admissible in any case for the purpose of defeating a written instrument P It is, as for example : On the ground of fraud, mistake, etc. And such evidence is admissible for the purpose of applying a written instrument to its proper subject-matter, or, to explain the meaning of foreign, local, or technical, or family terms, or to rebut presumptions arising intrinsically. 3 Wait's Law & Pr. 521, 522. 79. WRat is the distinction between a patent ambiguity and a latent ambiguity ? A patent ambiguity is one which is apparent on the face of the instrument ; a latent ambiguity is one which arises in the application of an instrument of clear and definite meaning, to doubtful subject-matter. The general rule is, that the latter spe- cies of ambiguity may be removed by means of parol evidence, while on the other hand, such evidence is not admissible to ex- plain an ambiguity apparent on the face of the instrument. 3 Wait's Law & Pr. 524. 80. Give an illustration of the rule which allows the introduction of parol evidence for the purpose of removing a latent ambiguity ? ' The illustration usually given is that of a description of a devisee in a will, or a description of an estate, where it turns out that there are two persons or two estates of the same name and description. The same illustration is equally applicable to a sale of personal property. Thus, if A should agree, in writing to sell his horse to B, and there are two persons of the name of B, parol evidence is admissible to show which person was in- tended as purchaser. 3 Wait's Law & Pr. 528. 81. Is a receipt, merely acknowledging the payment of money, conclusive evidence of such payment? A receipt in the form of a mere acknowledgment of pay- 480 Evidence. raent is only prima facie evidence of the fact, and not conclusive y and therefore the fact which it recites may be contradicted by oral testimony. 1 Greenl. Ev. § 305. 82. What is the true test of the ambiguity of a written instru- ment ? A written instrument is ambiguous only, when found to be of uncertain meaning by persons of competent skill and informa- tion. Words cannot be said to be ambiguous merely because they are unintelligible to a man who cannot read ; nor is a written instrument ambiguous or uncertain because an ignorant or uninformed person may be unable to interpret it. 1 Greenl. Ev., § 298. 83. What is meant hy unwritten or oral evidence ? By such evidence is meant the testimony given by witnesses, viva voce, either in open court or before a magistrate acting un- der its commission, or the authority of law. 1 Greenl. Ev., § 308. 84. What is a subpoena ? A subpoena is a judicial writ, directed to the witness, com- manding him to appear at the court to testify what he knows in the cause therein described, pending in such court, under a cer- tain penalty mentioned in the writ. 1 Greenl. Ev., § 309. 85. If the witness has a document in his possession which is re- quired as an instrument of evidence, how may its production be effected ? By the insertion of a clause to that effect, in the ordinary subpoena, which is then termed a subpoena duces tecum. A wit- ness is as much bound to produce a document as he is to appear and give evidence. 3 Wait's Law & Pr. 660 ; 2 Wait's Pr. 726. 86. Does the writ of subpoena suffice for more than one sitting or term of the court ? It does not. If the cause is made a,remanet, or is postponed by adjournment to another term or session, the witness must be summoned anew. 1 Greenl. Ev., § 309. 87. How must the subpoena be served? It must be served by exhibiting to the witness the original ■Evidence. 481 sirrit; and a copy thereof, or a ticket containing . its substance, must be delivered to the witness, and the legal fees for one day's- attendance ; and the traveling fees should be paid or tendered to the witness. 2 Wait's Pr. 720 ; Code of Civil Pro., § 852. 88. By whom may the service of the subpoena he made ? It may be served by any person, and, regularly, the proof of service of it ought to be made by the person who served such subpoena. This proof may be made, however, by any person who knows all the necessary facts of his own knowledge, by being present at the service. 2 Wait's Pr. 722. 89. What are the liabilities of a witness who refuses to obey a sithpoena duly served upon him ? He is liable to be punished by a fine and imprisonment for contempt of court, and iu addition thereto is liable for the dam- ages sustained by the party aggrieved in consequence of his fail- ure to obey the subpoena, and fifty dollars in addition thereto, and if he is a party to the action in which he is subpoenaed, the court may, as an additional punishment, strike out his pleading. Code of Civil Pro., §§ 14, 853. 90. Is a tender of fees necessary^ in criminal cases, to procure the attendance of witnesses ? It is not. Witnesses are bound to attend, for the State, in all criminal prosecutions, and for the defendant in any indict- ment, without any tender or payment of fees. 2 R. S. 729, §65. 91. When the witness is legally confined in prison, how may his •attendance be procured ? By procuring a writ of habeas corpus ad testificandum under the procedure prescribed by the Code. Code of Civil Pro., |§ 2008-2014. 92. Suppose a witness resides abroad, out of the jurisdiction of the court, and refuses to attend, or is sick and unable to attend,, how. may his testimony be obtained? In that case the testimony of the witness may be obtained by taking his deposition without the State upon a commission duly issued. Code of Civil Pro., §§ 898-913, 31 482 llTipEifreB. 93. At eomifion law, what el'asms 0/ persons are ex^litd^ fwmt h&ingj witnesses; on the growmd of Wicompeteney ? 1. Parties to actions ; 2. Persons deficient in understanding ; 3. Persons insensible to the obligations of an oath ; 4. Persons whose p^cuniaAy interest i^ directly inyplved in, ^h.e matter in issue. 1 Gr^enl, Ev., § 327. 94. What important changes have heem, made im this /State' ^y staty,te in relatio«ff to the competence/ of witnesses ? Under the Code, a party to an action may now be exajmined as a witness ; and no person offered as a witness shall be exclud«4 by reason of his interest in the event of the action. 2 Wait's Pr. 655. Code of Civil Pro., § 828. 9$* Is a p&Tsqn. ii^, this State ren.d6V^& Pr. 607, 611 ; 1 Greenl. Ev., §§ 451, 454. 114. Will a competent witness in a cause he excwsed ftom an- swering a question relevant to the matter in issue, on the gfoUni merely that the answer to such question may establish, dr tend to establish, that such witness owes a debt, oris otherwise subject to a .civil suit ? He will not in this State. 3 R. S. (5th ed.) 690, § 102. Bui this provision is in no way construed to require a witness to giv6 any answer which will hare a tendency to accuse himself of any ctitni3 or taiisdetneanor, or to expose hitti tO any penalty or for- feiture, nor in any respect to vary or alter any other rule reSp6Gt- ing the examitaation of witnesses. 1 Greenl. Ev., §§ 451, 454. 115. Save counsel a right to put questions which might call for a criminating answer from a witness f They have ; but after the question is put, it is then for the witness to claim his exemption from answering, or to Waive it and answer the question. 3 Wait's Law & Pr. 611. 116. As instruments of evidence, into what classes are writings First, into writings of a public nature ; secondly, of a mixed nature, partly public and partly private ; thirdly, of a private nature. Public writings, again, are either judicial, or, secondly, not judicial ; and, with a view to their means of proof, they are either, first, of record ; or, secondly, not of record. 3 Wait's Law & Pr. 477 ; 2 Wait's Pr. 688. 117. Of what do public writings consist? They consist of the acts of public functionaries, in the exe- ■cutive, legislative, and judicial departments of government, includ- ing under this general head, the transactions which official per- sons are required to enter in books or registers in the course of their public duties, and which occur within the circle of their, own personal knowledge and observation. And to the same head may be referred the consideration of documentary evidence of the acts of State, the laws and judgments of courts of foreign .governments. 1 Greenl, Ev., § 470. 488 Evidence. 118. How may the statute law of another State or of a foreign, government he proved in this State ? The proper method is the production of the printed volume, or by an exemplified copy. A printed statute book of a sister State, in order to be admissible as evidence, must purport to have been printed by authority of such State. 2 Wait's Pr. 639. See Code of Civil Pro., § 942. 119. What is the manner of proving the unwritten or common law of any other State or foreign government ? The unwritten or common law of any other State, or terri- tory, or foreign government, may be proved as facts by parol evi- dence, and the books of reports of cases adjudged in these courts may also be admitted as presumptive evidence of such law. Code of Civil Pro., § 942. 120. JHow mag records be proved ? A record may be proved either (1) by mere production,, without more; or, (2) by copy. Copies of redords are either exemplifications ; or, (2) copies made by the authorized officer ;: or, (3) sworn copies. An exemplification is under the great seal, or under the seal of a particular court. 3 Wait's Law & Pr. 477 ; 2 Wait's Pr. 641. 121. Upon what ground are copies of records permitted to he :given in evidence f The reason of this permission is the inconvenience to the public of removing the original records, which may be wanted in two different places at the same time. Not only records, but all public documents which cannot be removed from one place to another, may be proved by means of a copy proved on oath to have been examined with the original. 3 Wait's Law & Pr. 477, 478. 122. How may the existence of corporations he shown ? The existence of corporations may be shown by certified ccjpies of the certificate of incorporation, when such copy is duly -certified by the clerk or officer with whom the original is depos- ited. Certificates of incorporation of the villages, or transcripts from the record thereof, certified by the county clerk with whom Evidence. ^89' the originals are filed, are presumptive evidence of the facts therein stated. 8 Wait's Law & Pr. 479. 123. Where the proof of a record is hy a sworn copy, how must the copy he proved ? It must be proved by one who swears tliat lie has compared it with the original, taken from the proper place of deposit. And it is not sufficient that the witness holds the copy while another reads the record ; there must be a change of hands, or the witnest! must himself read the copy with the original. 3 Wait's Law tfc Pr. 478 ; 2 Wait's Pr. 654. 124. How may judicial documents he divided? They may be divided into : 1. Judgments, decrees and ver- dicts ; 2. Depositions and inquisitions, taken in the course of legal proceedings ; 3. Writs, summonses, attachments, warrants^ pleadings, complaints and answers, etc., which are incident t® legal proceedings. 3 Wait's Law & Pr. 483. 125. For what purpose m,ay a judgment or verdict be offered in evidence ? It may be offered merely to establish the fact that such a verdict was given, or such a judgment rendered, and those legal consequences which flow from tliat fact ; or it may be offered witlia view to a collateral purpose ; that is, not to prove the mere fact that such a judgment has been rendered, and so as to let in all the necessary legal consequences of that judgment, but as a medium of proving some fact as found by the verdict, or upon the supposed existence of which the judgment is founded. 3 Wait's Law & Pr. 483. 126. May a judgment be admitted in evidence to establish a col- lateral fact, where the parties are not the same ? It may. Thus, the record of a conviction may be shown, in order to prove the legal infamy of a witness. Or, it may be shown, in order to let in the proof of what was sworn at the trial ; or, to justify proceedings in execution of the judgment. 1 Greenl. Ev., § 526. 127. Can a verdict and judgment in a criminal case he given in \ 490 Evidence. evidence, in a civil aeti@n to e$U^li«h the fieets dti tehidh it WA» rendered ? As a general rule it cannot ; for if the defendant was con- victed, it may have been upon the evidence of the very plaintiff in the civil action ; and if he was acquitted, it may have been by collusion with the prosecutor. Besides, upon more general grounds, there is no mutuality ; the parties are not the same ; neither are the rules of decision and the course of proceeding the same. The same principles render a judgment in a ciml action inadmissible evidence in a criminal prosecution. 1 Grreenl. Ev., § 537. 128- What is the present rule with respect td the proof of pri- vate writings, where the instrument is attested f If the instrument to be proved is one that would not be valid if not attested by a subscribing witness or witnesses, it must be proved by the subscribing witness if he can be produced and is capable of being examined. But where a subscribing witness is not necessary to the validity of the instrument, but is attested by a subscribing witness, it may be proved in the same manner as if there was no subscribing witness thereto. 3 Wait's Law & Pr. 489, 490. 129. How may an unacknowledged deed he 'proved, where the evidence of none of the subscribing witnesses is producible f In such case, proof of the handwriting of a subscribing wit> ness will be received ; as where such witness is dead, or incom- petent to give evidence on account of insanity ; or where he is out of the country, or is beyond the reach of a subpoena which is issued by the court in which the trial is had. 3 Wait's Law & Pr. 491 ; 2 Wait's Pr. 650. 130. When is an instrument said to prove itself ? An instrument thirty years old is said to prove itself, the subscribing witness being presumed to be dead, and other proof being presumed to be beyond the reach of the party. 1 Greenl. Ev., § 570. \'i\. If a written instrument is lost or destroyed, what is re EVIBENCK. 491 iquwed of a parti/ in order that he may ht permitted to give seconid- ary evidence ? The party seeking to prove the contents of a lost or destroy- ed instrument must show that such an instrument onoe existed ; and if it is lost, that a bona fide search has been unsuccessfully made for it in the place where it was most likely to be found ; or, if has been destroyed, that it was not destroyed by the party with any fraudulent design ; and that it was duly executed. Parol evidence may then be given of its contents. 1 Greenl. Ev., § 558 ; 3 Wait's Law & Pr. 452-457. 132. How may one acquire a sufficient knowledge of the hand- writing of another, so as to enable him to testify as a witness to its genuineness ? He may acquire such knowledge in three ways; 1. From having seen the party write; 2. From a written correspondence had with the party ; and 3. From a comparision of the disputed handwriting with writings proved to have been genuine. 3 Wait's Law & Pr. 493-497. 133. If either of the parties to a tvritten instrument makes a material alteration in it after its execution and delivery, what effect will such alteration have upon the instrument ? The instrument is thereby rendered void ; but to this rule there are two exceptions : one is, if the alteration was made by the consent of the other party ; and the other is, where the altera- tion itself is an immaterial one, oris one which consists in merely supplying words, which the law would intend in the absence of any written words. 1 Greenl. Ev., § 565 ; 3 Wait's Law & Pr. 497, 498. 134. If, on the production of the instrument, it appears to have been altered, what is required of the party offering it in evidence '/ It is incumbent on him to explain this appearance ; and this is especially the rule when the alteration is suspicious, and is beneficial to the holder. 3 Wait's Law & Pr. 498. 135. Does the law require that an instrument shall be written throughout with the same colored ink ? . It does not ; and the fact that two kinds of ink of different 492 Evidence. colors was used will not, of itself, be sufficient to authorize a* court to exclude the paper from the jury. So, if there ia an erasure of one name, and another is written upon it, that of itself will not invalidate the instrument, though such circumstances may be weighed by the jury, upon the question of alterations, etc. 3 Wait's Law & Pr. 499 ; 1 Greenl. Ev., § 564. 136. If an instrument is altered or destroyed hy a stranger wlio had no authority to do so, will this in any way affect the rights of the parties to the instrximent f It will not. In such case the existence of the original must be shown, and the alteration or destruction will authorize proof, as in the case of a lost paper, if that kind of proof is necessary. 1 Greenl. Ev., § 566; 3 Wait's Law & Pr. 499. 137. Has the provision of the Code which permits parties to he witnesses, in any way changed the rules in relation to the admis- sion of account books as evidence f It has not ; for although a party may be a witness iu his; own favor, and may thus be able to establish his case by com- mon-law proof, yet he is not obliged to do so, but may introduce liis books of account as evidence, as formerly, provided he makes proper preliminary proofs to authorize their reception. 3 Wait's Law & Pr. 500 ; 1 Phil. Ev. 385, n. 138. What facts does the law require to he established by the party offering account books as evidence before they ivill be received as such ? 1. That the party had no clerk ; 2. That some of the articles charged had been delivered ; 3. That the books produced are the account books of the party ; 4. He must prove that he keepa fair and honest accounts, and this proof must be made by those persons who have dealt with him and have settled from those books. 3 Wait's Law & Pr. 500 ; 1 Phil. Ev. 375, note. 139. Are books of account admissible as evidence upon any subject for which a party might desire to use thejn ? They are not. To aid trade and commerce was the object in view when such books were allowed to be used as' eAddence ; aud a most important rule is, that the charges contained in them must relate to such things as are matter of book account, other- Evidence. 493 wise, they are not competent evidence. Tiius, the sale of goods, wares and merchandise may be proved by such books ; but they are not competent evidence for tlie purpose of proving a loan of money; nor for the purpose of proving the payment of money. 1 Phil. Ev. 439. 140. Are books of account competent evidence, in ani/ case where there is but one single claim or charge ? No ; and the rule is the same although there may have been several articles sold, if there was but one single transaction by way of sale. 1 Phil. Ev. 440 ; 1 Greenl. Ev., §§ 118, 119, note. 141. Is it sufficient, for a party offering account boohs in evi- dence, to prove that some goods have been sold and delivered, or that some services have been rendered? It is not. The law requires proof that some of the items charged have been delivered, or that some of the services charged have been rendered. 3 Wait's Law & Pr. 505. 145J. Does this rule require a party to prove the largest possible number of items of his account ? It does not ; but it is always prudent to prove such a num- ber of items as shows that there is a regular course of dealing between the parties, if such evidence is conveniently attainable. And, the greater number of items proved, the more satisfactory will the evidence be that the account books are correct. 3 Wait's Law & Pr. 505. 143. Does the law require that boohs of account, to be admissible in evidence, should have been kept in strict accordance with the most approved systems of booh-heeping ? The law does not require such strictness ; but the entries of .'charges ought to be made in those books of the party which are employed by him for the purpose of entering his daily and usual accounts with such persons as deal with him. And they ought to be made in conformity to the prevalent manner of keeping his books. 3 Wait's Law & Pr. 506. 144. By whom may the fact be proved that the party heaps no elerk ? It may be proved by the party himself ; or it may be sub- 494 Evidence. stantiated by any one who knows that fact. Any member of the. family, or any near neighbor or intimate aequaintanee^ or, ia short, any person who is familiar with the mode in which the partj' transacts his business in its daily movements, may show that no clerk is employed about it. 3 Wait's Law & Pr. 508. 145. Is one witness sufficient to prove that the owner of the books keeps fair and honest accounts f The testimony of a single witness who has dealt with the party, and has settled from the books, will be sufficient to rendear- the books competent, and, therefore, admissible in evidence : bui the credit of a book is dependent upon its character, and the greater the number of persons who have found its entries ac- curate and just, the more reliable will such book be as evidence. 3 Wait's Law & Pr. 509 ; 1 Phil. Ev. 385, note, 146. How may the credit of account hooks he impeached? Any evidence is proper for this purpose if it legally shows that the accounts are false andfraudulent, andif that fact is establish- ed the books will be entirely disregarded. So, too, if it is clearly shown that any of the charges are false, and that they were in- tentionally entered in the books for the purpose of injustice, the jury may disregard the whole book, if they see proper to do so, on the principle that a book which is deliberately and intention- ally false in some things is equally false as to all the other items. 1 Phil. Ev. 445; 2 Shars. Bl. Com. 369, n. 147. If accounts are entered upon slips of paper or upon sep- arate sheets, distinct from the usual books of account, can such- slips or separate sheets he received as hooks of account f They cannot. It is, however, not necessary that such books should be bound in a substantial manner, nor need they be bound at all. Several sheets of paper folded or stitched together will be sufficient to render the book competent, so far as its form is concerned. 2 Shars. Bl. Com. 448. 148. Are accounts valid, if kept in pencil mark? They are, if they are legible, and if that is the usual mode of keeping the general accounts. 2 Shars. Bl. Com. 448. 149. Are copies of hooks of account admissible in evidence ? They are not, if objected to on that ground. But, if such EyipENCB. 495 evidenqe is offered, and it is admitted in the. court below, with- out obje^ction, it wiJl not be any ground of objection on appeal that a copy was used instead of the original books. 2 Share. Bl. Com. 450. 150. Sl7it,pp<>se « pmrty elects to introduee his account hooks as evidence, nmy he afterward withdraw them ? Each party is. at liberty to prove his books in evidence, or not as he may choose, under ordinary circumstances. But, if he elects to introduce them as evidence, when they are once admit- ted, the evidence becomes the property of both parties, and the books cannot be withdrawn, nor the evidence rejected, without the consent of the opposite party. 2 Shars, Bl. Com. 45.0 ; 1 Phil. Ev. 385, note. 151. Upon, what conditions will the opinions of a witness he received as competent evidence ? To- render such evidence competent, two things should exist in the ease : 1. The matter upon which it is proposed to intror duce evidence of opinions must be one of skill or science; 2. The witness must be shown to possess such knowledge or skill as to render him. competent to give an opinion. Where the question is not. one of skill, or science, opiiiions will not be evidence, no matter how learned or scientific the witness may be whose opinion is asked. - 3 Wait's Law & Pr. 577, 578. 152. Wheft is the testimony of experts admissible to decipher written^ instruments ? If the characters are difficult to be deciphered, or the lan- guage, whether technical or local and provincial, or altogether foreign, is not. understood by the court, the evidence of experts is admissible to declare what are the characters, or to translate the instrument, or to testify to the proper meaning of the partic- ular words. 1 Greenl. Ev., § 280 ; 2 Stark. Ev. 565, 566. 153. Is there any exception to the rule that witnesses cannot give opinions as evidence, when the question is not one of skill and science ? There is one important exception to the rule ; for it is now well settled that any person who is acquainted with the value of the particular kind of property sold, or the kind of services '496 Evidence. rendered, may express an opinion as to its value. Thus, in an action to recover compensation for drawing leases, etc., the value of such services can be proved by the opinion of an attorney at law. So the value of a horse may be proved by the opinion of a witness. So a person has rendered services for another is competent to give an opinion as to the value of the services, and the jury may form their own estimate as to the value of the opinion. 3 Wait's Law & Pr., 579. 154. Where the question is, as to whether a person was intoxi- cated at the time he did a certain act, is it competent to ask a wit- ness who saw him at that time, whether, in his judgment, such per- son was to any considerable extent under the influence of intoxicat- ing liquors ? It is ; for it does not require science or opinion to answer the question, but observation, merely, whether a person is drunk or sober, or how far he was affected by intoxication, is better determined by the direct answer of those who have seen him, than by their description of his conduct. 3 Wait's Law & Pr., 593. 155- Are the subscribing witnesses to a will or deed competent witnesses as to the soundness of mind of a testator or grantor, at the time of executing the instrument, if such witnesses are not per- sons of science and skill ? They are ; but the opinionsi of no other persons are thus competent, unless they are possessed of the requisite science or skill to authorize them to express an opinion upon the subject. 3 Wait's Law & Pr. 595. 156. Who is to decide upon the question as to the value and im- portance of opinions, given in evidence ? This is a proper question for the jury ; for there is no rule of law that requires jurors to surrender their judgments implic- itly to, or to give a controlling influence to the opinions of scien- tific witnesses, however learned or accomplished they m^ be. 3 Wait's Law & Pr. 597. 157. Wliat is the distinction between prima facie and conclusive evidence f Prima facie evidence is that which, not being inconsistent Evidence. 497 Avith the falsity of the hypothesis, nevertheless raises such a de- gree of probability in its favor that it must prevail, if it is ac- <;redited by the jury, unless it is rebutted or the contrary proved. Conclusive evidence, on the other hand, is that which excludes, or at least tends to exclude, the possibility of the truth of any other hypothesis than the one attempted to be established. 3 Waifs Law & Pr. 638. 158. Of what does the evidence to he weighed hy a jury, or hy a 'Court sitting in their place, consist in ? (1) The direct testimony of witnesses ; or, (2) indirect or -circumstantial evidence ; or, (3) in both, either united or op- posed to each other. 3 Wait's Law & Pr. 639. 159. Upon what does the credit due to the testimony of witnesses depend ? It depends : (1) upon their integrity aiid honesty ; (2) their ability ; (3) their number, and the consistency of their testimony ; (4) the conformity of their testimony with experience ; and, (5) "the coincidence of their testimony with collateral circumstances. 3 Wait's Law & Pr. 639-644. 160. Is the testimony of a single witness sufficient legal ground for belief? It is, where there is no ground for suspecting either the -ability or integrity of the witness. Where direct testimony is opposed by conflicting evidence, or by ordinary experience, or by the probabilities of the case, the consideration of the number of Avitnesses becomes most material. 3 Wait's Law & Pr. 641. 161- Sow may a party obtain an admission of the genuineness •of a paper in advance of the trial or charge the adverse party with, the expenses incurred in proving it ? The attorney for a party may, at any time before the trial, ■exhibit to the attorney for the adverse party, a paper, material to the action, and request a written admission of its genuineness. If the admission id not given, within four days after the request, and the paper is proved or admitted on the trial, the expenses, incurred by the. party exhibiting it, in order to prove its genuine- ness, must be ascertained at the trial, and paid by the party re- 32 498 Evidence. fusing the admission ; unless it appears, to the satisfaction of the court, that there was a good reason for the refusal. Code of Civil Pro., § 735 ; 2 Wait's Pr. 653. 162. How may you compel the production upon a trial of a hook or paper belonging to or under the control of a corpora- tion ? It may be compelled in the same manner as if it was in the- hands of a natural person, by a subpoena duces tecum, or by an order, directed to the president or other head of the corporation, or to the officer of the corporation having the custody of the book or paper. Code of Civil Pro., § 868. 163- Where the defendant in an action is a corporation, can ther plaintiff have an order for the examination of such defendant as a witness hy its officers ? He can. Code of Civil Pro., § 872. 164. In the trial of an indictment against a person charged with a criminal offense, is such person a competent witness in thi» State f He is, if he requests to be sworn as a witness, but not other- wise ; but the neglect or refusal of such person to testify will not be allowed to create any presumption against him. Code of Criminal Pro., § 893. 165. Is a witness rendered incompetent hy reason of being- the husband or wife of a party to the action ? Not as a general rule. Code of Civil Pro., § 828. 166. In what case is a husband or wife incompetent to testify^ against the other ? A husband or wife is not competent to testify against the other upon the trial of an action or the hearing upon the merits of a special proceeding founded upon an. allegation of adultery, ex- cept to prove the marriage or to disprove the allegation of adul- tery. A husband or wife cannot be compelled, and without tlie consent of the other will not be allowed to disclose a confidential communication made one to the other during marriage. In an ac- tion for criminal conversation the plaintiff's wife is not a com- petent witness for the plaintiff, but she is a competent witness Evidence. 499 for the defendant as to any matter in controversy, except that she cannot, without the plaintiff's consent, disclose any con- fidential communication had or made between herself and the plaintiff. Code of Civil Pro., § 831. 167. In an action to annul a marriage is the declaration or con- fession of either party to the marriage of itself sufficient proof of the requisite facts ? It is not. Other satisfactory evidence of the facts must be produced. Code of Civil Pro., § 1753. 168. In what cases may an appellate court receive further testi- mony or documentary evidence upon an appeal? Upon an appeal upon the facts from a decree or order of a surrogate's court ; upon a retrial in the county court on appeal from a judgment of a justice of the peace ; or upon any other appeal, where record evidence, conclusive in its character has been inadvertently omitted on the trial or imperfectly proved, and in cases of like character. Baylies on New Tr. & App. 161-164. 169. What is the statutory ride in this State as to the exemption from arrest of a witness duly supoenaed to attend any court ? Such witness is privileged from arrest in any civil suit, while going to the place which the subpoena requires him to at- tend, while remaining at such place and while returning there- from. Code of Civil Pro., § 860. 1 70. What effect has the refusal of a party to produce a paper, in obedience to a notice to produce ? The only effect of such a refusal is to enable the party giving such notice to give oral evidence of the contents of such paper. Baylies' Trial Pr. 117. 500 Miscellaneous and Moot Questions. CHAPTER XX. MISCELLANEOUS AND MOOT QUESTIONS. 1. A traveler, returning home from New York, purchased and checked over the New York Central Railroad, as hagyage, a trunk and contents, consisting of wearing apparel for himself and family, and also certain presents for his friends. No part of the contents of the trunk were necessary to the comfort or convenience of the traveler during his journey home. The trunk and contents were lost. Can the traveler recover from the railroad company the value of the trunk and contents ? He can, with the exception of the presents purchased for his friends. 2 Wait's Act. & Def. 81-84. 2. A, being a creditor of an insolvent firm, entered into a written agreement with his debtor to accept, in .satisfaction and discharge of the debt, a sum less than the full amount due, pro- vided that no other creditor of the firm should receive more than a like per cent of his claim. After the payment of the stipulated sum, A brought an action to recover the balance of his claim. Can he recover? He can, as the agreement is void for want of consideration. 6 Wait's Act. & Def. 410-412 ; 8 id, 14. 3. A loaned certain shares of stock to B, taking as a memo- randum of the transaction and by way of security for the return of the stock, B^s promissory note. The note was made payable to A, or order, with interest, on demand. Three months afterward, A transferred the note to C, who brought an action upon it. Prior to the commencement of such action, B tendered the stock to A, and demanded the return of the note, which was refused. All of the parties were residents of the same city, and carried on business in the same street. Can B set up, as a defense to the action, the equities existing between him and A? He can, as the note was past due when transferred, and is. Miscellaneous Xnd Moot Questions. 501 therefore, subject to all the defenses that would have been avail- able to an action between the original parties. 1 Wait's Act. & Def. 640. 4. The owner of a dwelling house applied to an agent of an in- surance company for a policy of insurance thereon; and in answer to a question hy the agent stated that the building was at the time unoccupied, hut when occupied, was occupied hy a tenant. The agent, who ivith knoivledge of the company had been in the habit of filling in applications for insurance, wrote in the applica- tion that the building was occupied by a tenant. The applicant signed the application under the supposition that his statement had been correctly ivritten by the agent. A policy was issued by the company containing a provision that the policy should he null and void if the dwelling should be unoccupied at the time of effecting insurance and not so stated in the application. The dwelling con- tinued to he unoccupied until its destruction by fire. Can the in- sured recover on the policy notwithstanding the misstatements in the application? He can. The misstatements in the application were, as between the parties, those of the defendant's agent, and not of the plaintiff, and did not constitute a breach of warranty by the assured. 8 Wait's & Def. 329, 337. 5. Has a factor or agent for the sale of goods any power to pledge them at common law ? He has not; and this is the rule whether the owner has in- trusted him with the possession of the goods themselves, or with the symbol of them, as by consigning them to him by a bill of lading in which he is consignee or indorsee. 2 Kent's Com. 625. 6. A, wishing to obtain a better supply of water for the use of his family and stock, began digging a well upon his own land, there- by intercepting and preventing the flozD of an underground current of water into a large and valuable spring, situated on the land of an adjoining owner, which supplied a village with water. An ac- tion was brought by the village for a perpetual injunction to restrain A from digging the well. Can the action be maintained? ' It cannot. 2 Wait's Pr. 63, 64. 7. A, having an offer to sell his interest in an oil well, tele- 502 Miscellaneous and Moot Questions. graphed to his agent in Pennsylvania, inquiring what the well was yielding. The company were not informed, hy the contents of the message or otherwise, that extraordinary speed or care in the transmission or delivery of the message was important, or that ex- traordinary damages would result from any negligence on the part of the company. The message was not delivered to the agent for several days, during which time A had sold his interest for $S,500. Immediately after the sale, A received a telegram from his agent, stating that he could sell the interest for $5,000. What damages can A recover from the telegraph company on the facts stated? He can recover only the loss which would naturally and necessarily result from a failure to deliver the message, which would be the amount paid for its transmission. 6 Wait's Act & Def. 19. 8. The commissioners of highways of a town negligently per- mitted a portion of a public highway to become dangerous from want of proper repairs, and suffered it to remain in that condition for several months, although they had in their hands sufficient funds applicable to the repair of the road. By reason of the defective condition of the highway a traveler, without fault on Ms part, was thrown from his carriage and seriously injured. Can he recover from the town the amount of the damages he sustained hy reason of the negligence of the \;ommissioners ? He can. 1 Wait's Law & Pr. 493. 9. If goods are shipped by express to a given place, marked in care of the agent of the express company at that place, can the company be held liable for their loss after their arrival at their des- tination and delivery to the agent? They cannot. The owner of the goods by marking them in care of the agent of the company, made him his own agent for receiving the goods ; and the owner, knowing the fact of the prior agency is estopped from pleading the rule that the same person cannot be the agent of two principals. 1 Wait's Law & Pr. 640. 10. A promissory note was executed January 1, 1869, lut, hy mistake, was dated January 1, 1868. After its delivery to the payee, the date was changed to January 1, 1869, without the Miscellaneous and Moot Questions. 503 Jenowledge or consent of the maker. In an action against the ■maker of the note, this alteration was pleaded as a defense. Can the holder of the note recover, notwithstanding the admission of the facts set up hy the defendant ? He can. The general rule that the material alteration of a note, after its execution and delivery, will render it void, does not apply where the alteration is made to make the instrument conform to what all parties to it agreed or intended it sliould liave been. Pars, on Bills & Notes, 569-571 ; 1 Wait's Law & Tr. 713; 6 Wait's Act & Def. 474. 11. A, being indebted to B in the sum o/f200, B commenced an action thereon for the purpose of inducing A to set up, in his answer, m^C10Ra— Continued. notice to director, how far notice to corporation, 48. no limitations to actions against, in certain cases, 317. DISBA.RMENT: of attorneys for misconduct, 330. 331. DISBURSEMENTS: included in bill of costs, 407. cannot be recovered where costs are not, 408. DISCHARGE: of sureties, 143. of warrant of attachment, 368. DISCONTINUANCE: costs on discontinuance, 408. when plaintiff may discontinue without costs, 409. where defendant has interposed a counterclaim, 503. DISFRANCHISEMENT : distinguished from amotion, 43. DISMISSAL: remedy for improper dismissal on appeal, 482. review of dismissal of complaint for delay in prosecution, 439. improper demand of judgment no ground for, 410. findings of fact not required on, 388. DISORDERLY PERSONS: carrier not bound to carry, 177. DISQUALIFICATION: of judges, 333. of county judge holding court of sessions, 523. of a justice of sessions, proceed- ings on, 532, 534. DISSOLUTION: ways in which a corporation may be dissolved, 44. of corporation by death of mem- bers, 45. title to property of a corporation after, 45. revivor of dissolved corporation, 46. ways in which a partnership may be dissolved, 153. effect of dissolution on rights and. liabilities of partners, 153. 562 INDEX. TilSSOUJTlOTii— Continued. action brought by corporation does not abate on, 347. action against corporation abates on, 342. DISTRICT COURT: appeal from judgment of, 448. DIVORCE: kinds of divorce recognized in this State, 32. efiectof an absolute or of a limited divorce, 28. distinction between divorce and decree of nullity, 28: separation from bed and board, ground for, 23. when a plaintiff not entitled to, 28. effect of a divorce on right of dower, 57. right to trial by a jury in action for, 371. statement of natui-e of action upon summons, 827. verification of answer in action for, 278. costs in action for, 402. judgment for divorce after a refer- ence of issues, 412. DOCKET: docket book, 420. docketing judgment, 421. DOMESTIC RELATIONS: husband and wife, 17-28. parent and child, 27-29. guardian and ward, 29-32. master and servant, 32-35. DORMANT PARTNER: who are dormant partners, 149. theory of responsibility to credi- tors of firm 150. DOUBLE DAMAGES: 384. DOUBLE INSURANCE: defined, 198. DOWER: defined, 54. three things requisite to dower, 54. estate of the husband requisite to entitle widow to, 54. , where two persons are entitled to dower, 55. nature of an inchoate right of dower, 65. effect of wife joining with hus- band in a deed or mortgage, 55, 56. VOWER— Continued. - inchoate right of dower ol infant wife not barred by joining ia deed, 56. effect of setting aside deed exe- cuted by husband and wife, 56. in mortgaged premises, 56. on exchange of lands, 56. effect of divorce on wife's right of dower, 57. barred by a decree of nullity, 57. when barred by a jointure, 57. ) election between jointure andi dower, 57. presumption of election to take jointure, etc., in lieu of, 58. husband cannot bar wife's right of dower, 58. where husband was seized of a defeasable estate, 59. where lands have been alienated, 59. time within which dower must be demanded, 59. in partnership lands, 154. limitation of actions for, 316. place of tiial of action for dower,. 352. injunction against waste in action for, 364. issue of fact in action for dower is triable by- jury, 371. successful plaintiff entitled to- costs in action for, 402. DRAWER: of bill of exchange, 180. engagement of drawer of a bill, 189. notice of non-acceptance of bill,. 191. DRAWEE: (See Bill op Exchange.) of a bill of exchange, 180. DRUNKARD: (See Intoxication.) conveyance of lands of a habitual drunkard, 95. capacity to make a will, 218. DUELLING: criminal liability for, 518. DURESS: will executed under duress is ab» solutely void, 319. DUTIES: of guardians, 30. " of a master to his servant, 84. INDEX. 563 DUTIES— Continued. of an agent to his principal, 139. of an innkeeper to his guest, 171. of a common carrier, 173. 176. ^ of a parent to Ms child, 27. EARNINGS: of married women, 19. of an infant, 28. EASEMENT: defined, 74. riglit of way by prescription, 74. right of way from necessity, 74. repair of ways, 74. one of several tenants in common cannot create, 506. ECCLESIASTICAL CORPORA- TIONS: what are, 38. T;JECTMENT: procedure upon death of a party in, 850. place of trial of action, 353. injunction to stay waste during pendency of action, 364. right to jury trial of issue of fact, 371. ELEEMOSYNARY CORPORA- TIONS: riglit to give laws to, 43. ELECTION: between jointure and dower, 57. compelling election between dower and provision in will, 58. presumption of election by widow, 58. as to mode of performing contract. in alternative, 123. between action against agent or principal, 135. between counterclaim and action, 299. \ compelling election between ar- rest, injunction or attachment, 368. EMANCIPATION: of child by insolvent father, 28. EMBEZZLEMENT: by infant a defense to action for wages, 28. EMBLEMENTS: right to, on deatii of tenant for life, 59. EMINENT DOMAIN: exercise of the right of, 14, 15. nature of the right of, 97. limitation of the right of, 14, 97. ENEMY: carrier does not insure against act of public enemy, 175. ENTIRE CONTRACT: recovery for part performance of, 82. ENTIRETIES: creation of estate by entireties, 71, 72. ENTRY: of a verdict by the clerk, 384. of judgment by default, 410. of judgment by confession, 417. of order before appeal, 439. notice of entry of judgment, 441. ENUMERATED MOTIONS: what are, 454. EQUITABLE MORTGAGE: meaning of the term ' ' equitable mortgage," 65. EQUITY: defined, 243. courts in which equity is adminis- tered, 342, 343. union of law and equity, 243. maxims of, 243. follows the law, 313. where equities are equal the law prevails, 344. preference given to superior equi- ties, 844. equality is equity, 344. that which ought to be done treat- ed as done, 245. principal grounds of equitable re- lief, 345. fraud as understood in equity, 345. objects of equitable jurisdiction, 345. interference in case of voluntary conveyance by insolvent, 346. meaning of maxim that fraud is never presumed, 346. relief in equity against fraud, 346. relief against contracts of persons of weak understanding, 247. inadequacy of price no ground for equitable interference, 247. 664 INDEX. EQUITY— Continued. relief against acta and contracts of intoxicated person, 347. relief against surprise, 348. relief against constructive fraud, 348. relief against accident, 348, 850. '■ jurisdiction in respect to lost bonds and securities, 349. relief against mistake, 350-858. rule of equity in the construction of wills, 850. compelling specific performance of contracts, 353-858. remedy where title, deeds, etc., are illegally withheld, 858. bills quia timet, 358, 359. injunction, when granted or re- fused, 859-361. EQUITIES: when negotiable paper is taken subject to, 189. ESCAPE: limitation of action for, 316. service of summons in action for an escape, 329. crime committed by escape from custody, 516. ESCHEAT: when title to land reverts or es- cheats to the state, 85. ESCROW: delivery in escrow, 90. ESTATE: meaning of the term "estate in land," 50. distinction between quality and quantity of an, 51. statutory classification of estates, 51. fee simple, 51. freehold estates, 51. largest and smallest estates of free- hold, 51. of inheritance, 51. elstate tail defined, 53. diSerent kinds of estates ti-il, 52. abolishment of estates tail by Re- vised Statutes, 58. defeasable or conditional fees, 53. life estates, 53. quantity of interest conveyed with an estate for life, 53. -modes by whicli a life estate may be created, 53. created by grant to a person and his assigns, 53. ESTATE— Confe'reMetf. tenancy for life and tenancy for life of another, 53. life tenant can convey no greater estate than he has, 63. ' efEect of a conveyance of a life estate to B. and heirs forever, 53. death of tenant per auter me be- fore death of cestui qui vie, 54. by the curtesy, 54. four essentials to creation of es- tate by the curtesy, 54. dower, 54. three things requisite to create dower, 54. what estate the husband must have had to entitle widow to dower, 54. inchoate right of dower, 55. dower of two persons in same lands, 55. cutting off inchoate right of dower, 55, 56. dower in mortgaged premises, 56. dower m lands exchanged, 56. dower in partnership lands, 154. (See DowEB.) jointure defined, 57. (See JOIHTDRE.) widow's quarantine, 59. merger of life estate in the inheri- tance, 59. estates less than freehold, 60. for years, are only chattels real, 60. (See Landlord asd Tenant.) fixtures, what'are, 61. merger of estates, 59, 62. tenancy at will, 63. tenancy at suiferance, 60. meaning of the term " condition," as used in relation to estates, 63. general divisions of estates upon condition, 63. distinction between limitations and conditions, 63. void conditions. 64. conditions precedent, and subse- quent distinguished, 64. mortgage defined, 64. assignment of mortgages, 65. equitable mortgages, 65. interest of mortgagor and mort- gagee, 66. (See Mortgage.) division of estate with respect to time of tlieir enjoyment, 67. in expectancy, 67. INDEX. 565 ESTATE— Continued. statutory division of estates in expectancy, 68. vested and contingent future es- tates distinguished, 68. rule in Shelly's case, 68. in reversion, 68. in severalty, 69. in joint tenancy, 69. joint tenancy at common lav? and under Revised Statutes, 70. requisites of a joint tenancy, 69. right of survivorship, 71. tenancv in common, 69. tenancy in common at common law and under Revised Statutes, 70. severance of joint tenancies or tennncies in common, 71, 73. (See Joint Tenants; Tenants in Common.) I in coparcenary, 69. by entireties, 71, 72. partition between husband and wife, 73, 73. conveyances from husband to wife or wife to husband, 73. conveyance of trust estates, 73. easements, 73, 74. trust estates, 77 78. when trust estate ceases, (See Trusts.) powers, 78. statute of descent, 80-85. what passes by devise of testator's "estate," 280. ESTOPPEL: when corporation estopped from denying agent's authority, 42. EVIDENCE: meaning of the word "evidence," 461. distinction between evidence and proof, 461. division and classiflcatibn, 461. direct and circumstantial. 461. competent evidence. 462. relevant and irrelevant evidence, 463. cumulative evidence, 463. conclusive evidence, 463- satisfactory or suificient evidence, 462. competency and admissibility a question for the court, 463. judicial notice, 463. presumptions, 463. presumptions of law, 463, 464. EVIDENCE— Continued. presumptions in favor of judicial proceedings. 464. need not be directly upon the issue, 465. relevancy need not appear when offered, 465. showing relevancy of apparently irrelevant evidence, 465. lelevancy of evidence as to char- acter or bias of witness, 465. substance only of issue need be proved, 466. variance under the Code, 466. burden of proof is on the party alleging the affiraiative, 466. test to determine who has the affirmative, 466. when both parties hold the affirma- tive of the issue, 467. burden of proof where there is a presumption of law, 467. right to open and close, 467. best evidence required, 467. 468. primary and secondary evidence distinguished, 468. oral evidence in place of written instruments, 169, reasons for excluding oral evi- dence where there is a writing, 468, 469. oral evidence upon collateral ques- tions received, '170. exceptions to rule requiring the best evidence, 470. parol evidence in aid of construc- tion of. written contract, 115. parol evidence of a warranty where there is a written contract of sale, 131. parol evidence to identify a de- visee, 231. hearsay evidence defined, 470, 471. reasons for the exclusion of hear- say evidence, 471. exceptions to the rule excluding hearsay evidence, 471. when hearsay partakes of the na- ture of original evideuce, 471. hearsay evidence in matters of public interest, 472. entries in family bible, when ad- missible, 473. dying declarations, 472. declarations against interest, 473. testimony given by witness since deceased, 473. admissions and confessions dis- tinguished, 478. admissions of a party evidence against him, 474. 566 INDEX. EVIDENCE— Continued. when party bound by statements of a third person, 474. when admission of wife binds husband, 474. when client bound by admission of attorney, 474. admission of agent as evidence against principal, 475. admission of partner as evidence against firm, 475. admission of principal as evidence against surety, 475. admissions made under restraint, 475. implied admissions, 475. admissions of defendant in tort as against co-defendant, 476. judicial and extra judicial confes- sions distinguished, 476. confession must be voluntary, 476. communications between client and attorney, 477. communications made to minis- ters or doctors, 477, 478. papers illegally taken maybe read in evidence, 478. parol evidence to contradict or vary writing, 47,8. parol evidence to defeat written instruments, 479. patent ambiguity and latent am- biguity distinguished, 479. parol evidence to remove latent ambiguity, 479. receipt, as evidence of payment, 479. test of ambiguity. 480. oral evidence defined, 480. subpoena defined, 480. subpoena duces tecum. 480. subpoena good for only one sitting of the court, 480. service of a subpoena, 480, 481. liability of witness refusing to obey a subpoena, 481. in criminal cases fees need not be tendered, 481. procuring attendance of impris- oned witness, 481. habeas corpus ad teitificandum, 481. depositions taken without the state on a commission, 481. witness who were incompetent at common law, 483. competency of witness under the Code, 483. competency not affected by religi- ous belief, 483. EVIDENCE— Cw««iM6(?. competency of children as wit- nesses, 483. convicts as witnesses, 483, 483 objections to competency of wit- ness, when taken, 483. witnesses must testify under oath, 488. oath defined, 483. mode of administering oath to witness, 483. regular mode conducting exami- nation of witnesses, 484. leading questions, 484. refreshing memory by inspection of writings, 485. impeaching party's own witness, 485. impeaching witness for adverse party, 486. sustaiuing credit of witness, 486. previous declarations made out of court, 48b. when witness may refuse to ans- wer, 486, 487. classification of writings as instru- ments of evidence, 487. public writings, 487. foreign statutes, how proved, 488. proving common law of other states or countries, 488. copies of records, 488, 489. proof of corporate existence, 488. judicial documents, how classified, 489. admitting judgment or verdict in evidence, 489. plicate writings, 490. subscribing witness, when to be called, 490. when instruments prove them- selves, 490. secondary evidence of lost instru- ment, 490, 491. proof of handwriting, 491. material alterations in written in- strument, 491, 493. explanation of alterations in a writing, 491. account books as evidence, 492, 493, 494, 495. opinions of witnesses, 495. experts, 495. opinion as to value, 495. opinion as to sobriety or intoxica- tion of a person, 496. opinion of subscribing witness as to sanity of testator, 496. jury must decide upon the valua of opinions, 496. INDEX. 567 EVIDENCE— Continued. prima fade and conclusive evi- dence distinguished, 496. weight of evidence, 497. credibility of evidence, 491. number of witnesses, 497; obtaining admission of genuine- ness of a paper, 497. compelling corporation to produce books, etc., 498. examination of officers of corpor- ations as witnesses, 498. indicted person a competent wit- ness for himself, 498. husband and wife as witnesses for each other, 498. •declarations or confessions of party to action to annul mar- riage, 499. documentary evidence upon ap- peal, 499. •exemption of witness from arrest, 499. disobedience to notice to produce a paper, 499. objections to evidence, when to be taken, 390. curing receipt of incompetent evi- dence, 390. party by cross-examination does not waive exception, 390. review of rulings of the court on questions of evidence, 390. newly discovered evidence, grant- ing new trial for, 391, 393. no conviction for seduction on evidence of seduced only, 519. defendant in criminal action can- not be compelled to testify against himself, 533. sufficiency of evidence to warrant indictment, 537. bribery of witnesses, 516. perjury, 516. subornation of perjury, 516. attempt to procure another to give false testimony, 516. EXAMINATION: of witnesses upon a trial, 484. in proceedings supplementary to execution, 437-430. by magistrates in cases of felony, 535, 536. by magistrates in cases triable by police courts, 530. EXCEPTION: defined, 888. does not lie to errors of the jury, EXCEPTION— Confe?iwe(f. rulings subject to, 388. to rulings on questions of fact. 389. when taken, 389. to charge to jury, 389. to rulings by court or referee after submission of cause, 389. when waived or cured, 390. not lost by cross-examination, 390. review of rulings excepted to, 390. directing excei^tions to be heard at general term, 391. EXCHANGE: dower in case of exchange of lands, 56. EXECUTED CONTRACTS: 106. EXECUTION: redemption of land sold under, 96. patent right cannot be sold under, 103. kinds of, 421. judgments enforceable by, 433. when issued of course, and wlien on leave of court, 433. leave to issue, 433. on judgment docketed upon a transcript, 433. to what counties issued, 433. against the person of judgment debtor, 433, 434. direction of, 484. contents of, 434. when returnable, 435. upon judgment for a sum of money, 435. requirements of execution against property, 425. requirements of execution against the person, 425 duty of sheriff to indorse time of receipt, 436. levy on personal property under, 426. proceedings supplementary to, 426-433. EXECUTOR: definition of the word, 333. who may be appointed, 382. infant cannot be appointed, 24, 333. married woman may be executrix, 232. professional gambler not compe- tent to act, 233. illiterate person may be, 233. INDEX. EXECUTOB^ Continued. death of, 233. definition of "executor de son tort," 238. renunciation, 238, 284. refusal to appear and take oath of office, 234. power of, before probate, 234. recovery of damages done before probate, 284. application by executor for pro- bate of will, 235. compelling production of will be- fore surrogate, 235. oath of, 285. investments by, 238. publishing notice to creditors, 239. payment of debts and legacies, 239. sale of real property to pay debts, etc., 239. payment of claim.<5 pro rata, 239. distribution of surplus not be- queathed, 240. commissions of. 341. liability of, on bills and notes, 182. recovering back money paid by mistake, 249. alleging appointment of, 272. joinder of causes of action against executors, 282. capacity in which an executor should sue, 383. complaint by, 283. counterclaim in action by or against, 299. limitation of action for negligence causing death of testator, 315. limitation of action against, on re- jected claim, 316. may sue alone, 839. foreign executor cannot sue in courts of this state, 344. can be arrested only for his per- sonal act, 359. liability for costs, 406. EXECUTORY CONTRACT: 106. EXEMPTION: from arrest, 358, 499. prospective agreement to waive exemption, void; 422. EXPECTANCY: estate in expectancy, 67. division of estate in, 68. EXPERTS: opinions of, when admissible as evidence, 495. EXPLOSION: liability of insurer for loss caused by, 307. EXPRESS TRUSTS: (See Trusts.) for what purposes authorized, 78. EXPRESS WARRANTY: (See Wakranty), 120. EXTENSION: of time of payment discharges, surety, 143. agreement to extend time of pay- ment when not binding, 144. of time to answer, 390. of time to appeal, 441. EXTORTION: defined, 531. FACTOR: distinction between factors and brokers, 137. del credere commissions, 137. degree of care required of, 137. compensation in excess of com- missions, 137. when right to commissions ac- crues, 138. forfeiture of commissions for mis- conduct, 138. FACT: relief in equity on ground of mis- take of fact. FACTS: how stated in pleadings, 267, 270. what facts must be pleaded, 367. failure to allege facts sufficient to constitute a cause of action, 267. alleging facts necessarily implied^ 367. which need not be proved need not be alleged, 268. minuteness in statement of facts^ in pleadings, 373. facts alleged control legal conclu- sions,' 377. exceptions to rulings upon ques- tions of fact, 389. FALSE IMPRISONMENT: limitation of actions for, 316. cause of action for, not assigna- ble, 340. costs in actions for, 399, 400. INDEX. 569 TARE: right of carrier to require prepay- ment of, 177. ■when payment of, not necessary to give rights of passengers, 179. FAVOR: challenge for, 378, 379. FEE SIMPLE: ■ nature of the estate, 51. estate in, can only be created by the State, 93. FEES: attorney may maintain action to recover, 3:il. lien of attorney for his fees, 331. included in bill of costs, 408. payment of witness fees on service of subpoena, 481. no witness fees in criminal cases, 481. jurors and witnesses not entitled to, in special sessions, 530. FELLOW SERVANT: master not liable to servant for in- juries caused by, 33. FELONY: defined, 513. homicide justifiable in resistance of, 10, 514. acceptance by witness of money for absence from trial, 516. escape of prisoner charged with, 516. knowingly and falsely certifying that a deed has been recorded, 517. sale of drugs to produce miscar- riage, 530. embezzlement by officer of public funds, 531. limitations of indictments for, 524, 535. prisoner charged with must be present when verdict is rend- ered, 539. FICTITIOUS NAME: maybe inserted in summons when true name is unknown, 339. legal effect of a note payable to order of fictitious person, 183. FILING: of contracts of conditional sales, 119. of affidavit of merits, 395. FINAL ORDER: the determination of proceedings by State writ, 434. FINDER: obligations of finder of lost prop- erty, 158. FINDINGS: of facts and conclusions of law by court or referee, 388. FINE: arrest in action to recover fine or penalty, 355. FIRE: destruction of property to pre- vent spread of fire, 15. liability for rent after destructian of premises by, 60. loss of goods bailed by fire, 164, 165, 173. OSS by fire, a risk covered by policy of marine insurance, 198. negligently permitting fire to spread, a misdemeanor. FIRE INSURANCE: (See Instjkancb.) losses indemnified against, 303. contracts, how tnade, 303. security offered by stock and by mutual companies, 203. application for, 203. misrepresentations by the insured, 204. alterations in the property in- sured, 305. effect of suppression of truth by the insured. 305. insurable interest, 306. destruction by lightning, 307. explosions of gunpowder, 207. loss from water and blovring up buildings, 207. negligence of insured and his em- ployees, 208. alienation of the property insured 208. assignment of right to indemnity, 208. by agents, commission merchants, etc., 209. parol contract, 209. conditions, 209. construction of policy, 209. FIXTURE: defined, 61. test to determine whether a thing is a fixture, 61. 570 INDEX. FIXTURE— Continued. mode of annexation to the realty, 61. Intention of tenant making the annexation, 61. right of tenant to remove, 61. FOLIOING: requirements as to the folioing of pleadings, 2B5. objection that a pleading is not folioed, 265. FORECLOSURE: of a pledgor's right of redemption. 167. when assignor a necessary party to, 338. proper parties to action to fore- close a mortgage, 346. place of trial of action of, 352. injunction to stay waste pending foreclosure, 364. costs on foreclosure, 408. by advertisement, contents of no- tice of sale, 433. service of notice of sale on fore- closure by advertisement, 483. publication of notice of sale, 434. FORFEITURE: of charter of a corporation, 44, 45, 46. of freehold estate on conviction for treason, 81. transfer of title to personal prop- erty by, 104. forge;rt: of signature to negotiable note, 183. Implied warranty against, by in- dorsement, 186. false certificate of acknowledg- ment by notary, 521. FORM: of a summons, 326 of general denials, 293. of an order of arrest, 359, 360. of a warrant of attachment, 367. FORMER ACQUITTAL: of a crime consisting of degrees, 515. a bar t.o a second prosecution for same crime, 523. FORMER CONVICTION: of a crime consisting of degrees, 515. a bar to a second prosecution for same crime, 523. FOREIGN: bill of exchange distinguished from inland bill, 181. corporation may sue in courts of this state, 48, 341. proceedings to take judgment by " default against corporation, 414. executor cannot maintain action as such in this state, 344. judgment, how pleaded, 274. judgment on contract, does not defeat right to arrest for fraud, 356. jury, in what cases summoned, 378. laws, how pleaded, 270. laws, must be proved like other facts, 463. FRANCHISE: surrender of corporate franchise, 44. construction of a grant of an ex- clusive franchise, 74. FRAUD: (See Statute of Frauds.) fraudulent representations by in- fant that he is of age, 27. title of purchaser from fraudulent vendee, 119. in contract of suretyship dis- charges surety, 143. liability of copartners for fraud of partner, 154. in obtaining execution of a will, vitiates it, 219. answer to verified complaint charging fraud must be verified, 277. definition . of the term fraud as used in equity, 245. equitable relief against fraud, 245. conveyance of lands of insolvent father to his son, 245, 246. meaning of the maxim that fraud will not be presumed, 246. misrepresentation and undue con- cealment, 246. cases of fraud against which equity will afford no relief, 246. compelling specific performance in case of, 255. construction of pleadings contain- ing allegations of, 287, 288. no recovery for breach of war- ranty on a complaint for, 287. arrest for, in action on contract, ■ 354. defeating right to arrest for,by mis- *; joinder of causes of action, 355. INDEX. 571 I'R AUD— Continued. right to arrest for, not defeated by foreign judgment on contract, 256. failure of purchaser to disclose his insolvency, 356. false representations in obtaining sale of goods, 356. false representations as to solvency of another, 357. fraudulent service of a summons, 332. in obtaining contract of insurance, 204, 205, 210. conveying property to defraud creditors, a misdemeanor, 522. FREEHOLD: (See Estates.) estates of freehold, 51. largest and smallest of freehold estates, 51. FREIGHT: carrier's lien for freight, 177. -FRIVOLOUS PLEADINGS: frivolous answer, 308. remedy against frivolous plead- ings, 304. serving amended pleadings in , place of, 304. attacking complaint on motion for judgment, 304. motion papers on application for judgment on, 304. judgment on frivolous answer, 304. striking out demurrer as frivolous, 304. FUTURE ESTATES: (See Estates.) vested and contingent, 68. 'GAMBLER: incompetent to discharge the dut- ies of executor, 233. 'GENERAL ACTS: as distinguished from local and private, 3. GENERAL AGENT: distinction between general and special agents, 133. how far acts of, bind principal, 133. GENERAL DENIAL: distinction between general and specific denials, 293. GENERAL T>'WSlL'L—OonUnued. form of, 398. to a part of the complaint, 293. what may be proved under a gen- eral denial, 296. GENERAL GUARDIAN: appointment of, 30. GENERAL PARTNERSHIP: nature of, 148. GENERAL TERM: how constituted, 323. number of judges concurring to render decision. 323. appeal to general term of same court, 440. appe il to general term from infer- ior court, 440, 445. GENERAL VERDICT: distinguished from a special ver- dict, 383. GENUINENESS: mode of obtaining admission of genuineness of a paper, 497. GIFT: defined, 112. classification of gifts, 112. essentials of a valid gift inter irivos, 113. essentials of a valid gift causa mortis, 113. of the donor's own note, 113. of the note of a third person, 113. revocation of, 113. delivery of the subject of the gift, 104. GRAND JURY: meaning of the term " grand jury," 526. how composed, 516. concurrence necessary to a ver- dict, 527. GRANT: the statutory term to designate a deed or conveyance, 89. of a pool of water. 49. of a franchise conferring exclus- ive privileges, how construed, 73. GUARANTY: defined, 142. consideration to sustain a guar- anty, 148, 506. of the collection of a note, 146. of payment, 147, 194. 572 INDEX. GVA.RANTY— Continued. construction of guaranties, 147. letter of credit, 147. revocation of a guaranty, 147. guarantor of payment of note not entitled to notice of protest, 194. joinder of guarantor and maker of a note as defendants, 345. GUARDIAN AND WARD: definition of the terms "guar- dian" and " ward," 29. testamentary guardians, 29. right to guardianship of infants owning land, 29. father cannot appoint testamen- tary guardian of married in- fant, 29. general guardians appointed by supreme court or surrogate's court, 30. proceedings to secure appointment by sup; erne court, 30. duties of a guardian, 30. right of ward as to personalty converted into realty, 30. security required of general guar- dians, 31. contracts for support of ward, lia- bility on, 31. guardian not liable for torts of ward, 31. filing inventory and account, 32. verification of pleading by a guar- dian ad litem, 379. complaint where infant sues by guardian, 283. appearance of an infant by guar- dian ad litem, 334, 336. GUEST: responsibility of innkeeper to his guest, 171. HABEAS CORPUS: suspension of the privilege of the writ, 12. is a state writ, 434. must be served by an elector, 434. allowance of the writ, 434. to bring up a prisoner 10 testify as a witness 481. HALF-BLOOD: relatives of the half-blood inherit equally with those of whole blood, 84. HALF-HOLIDAYS: Saturday from noon to midnight is a half holiday, 193. HANDWRITING: modes of acquiring knowledge of» 491. HEARSAY EVIDENCE: (See Evidence.) defined, 470. grounds of excluding, 471. exceptions to the rule excluding,. 471. when of the nature of original evidence, 471. /' in matters of public interest, 473.. in matters of pedigree, 473. HEIRS: not necessary to use the word heirs; in conveying a fee, 53, 230. no heirs of the living, 230. devise to heirs of a person living- at death of testator, is void, 380. cannot be arrested except for per- sonal acts, 359. HEREDITAMENTS: include lands, tenements and whatever may be inherited, 50> incorporeal hereditaments, 73. HIGHWAY: liability of a town for injuries from defects in highway, 503. HIRING: (See Bailment.) implied agreement as to compen- sation, 33. for a stated period and part per- formance, 33. nature of the contract where a thing is hired for a reward, 168. special property in the thing^ hired, 168. care and diligence required of the hirer of chattels, 168. hiring for one purpose and use for another, le-*. liability for injury to the thing- hired, 168, 169. termination of the contract of» 169. HOLIDAYS: public holidays, 193. notes falling due on, 198. half-holidays, 198. HOMICIDE: \ when justiflable, 10, 514. defined, 517. INDEX. 573 HORSE: obligations of a bailee of a horse, 163. liability for injury to a borrowed horse, 165. right to use a horse left as a pledge, 166. liability for injury to a hired horse, 168, 169. liability of innkeeper for loss or injury to horse of guest, 173. warranty of, and recovery for breach, 130. measure of damages for breach of warranty of, 130. measure of damages for breach of implied warranty of title, 131. HUSBAND AND WIFE: marriage, 17. common law rights of husband to property of wife, 18. rights of wife to her separate property under the statutes, 18, 19. earnings of married women, 19. right of husband of wife dying intestate without issue, 19. actions between husband and wife, 20. married woman may maintain ac- tion for slander, 20. liability of husband for torts of wife, 30, 21. liability of husband for necessar- ies furnished wife, 21. liability of husband on contracts of wife, 31. "voluntary services of husband as managing agent, 21. light of a married woman to con- tract, 33, 107. judgments against married women, 22. liability of wife for debts of hus- band, 33. divorce, 33. (See DivoKCE.) ■curtesy, 54. ■dower, 54. (See Dower.) ■conveyances by husband and wife, 55. 56. jointure, 57. (See Jointure ) lands conveyed to husband and wife held as tenants by the en- tirety, 73. partition of lands held as tenants in common, etc., 73, 73. HUSBAND AND WIFE— Continued. • joinder of, in actions by or against the wife, 345. when admissions of the wife will bind the husband, 474. as witnesses for or against each other, 498. commission of crime by wife in presence of husband, 514. HYPOTHETICAL PLEADING: not allowable under the Code, 268. IDIOTS: sale of lands of, must be under the order of the court, 95. incapable of contracting, 106. IMPEACHMENT: evidence to impeach witness of adverse party always relevant, 465. of party's own witness not per- mitted, 485. of witnesses for the adverse party, 486. evidence in support of character of impeached witness, 486. of credit of account books, 492. IMPLIED CONTRACT: of infant to pay for necessaries, 24. to pay what services are worth, 33. of a corporation, 42. no covenants implied in a convey- ance of land, 98. of warranty by indorser, 186. of warranty of seaworthiness of insured vessel, 203. of professional man, 170. IMPRISONMENT: (See False Imprisonment; Criminal Law.) protection against illegal, by ha- beas corpus, 12. IMPROVEMENTS: compensation for, on partition, 73. INCHOATE RIGHT: of dower, 55. INCORPORATION: (See Corporations.) how alleged in a complaint, 288. INDEPINITENESS: in pleading, remedy against, 370. 674 INDEX. INDICTMEHT: (See Chiminaij Law.) limitation of time of finding, 534, 325 defined, 537. evidence warranting an indict- ment, 537. number of grand jurors who must concur in, 527. pleading to the indictment, 537, 528. motion to set aside, 637. objections to, which may be taken at the trial, 528. INDORSEE: of a bill or note, 180. INDOESEMENT: corporations cannot indorse for accommodation, 48. of a bill of lading, effect of, 133. by agent, without personal liabil- ity, 183. of a note payable to bearer, effect of, 184. presumption as to time of, 186. contracts included in an indorse- ment, 186. of blank notes signed and deliv- ered to agent, 187. when several payees must unite in, 137. of overdue note, 187. in blank, 187. contract of indorsers of bill of exchange, 190. of pleadings, 365. of summons in action for a pen- alty, 337. INDORSEE: of a bill of exchange, 180. contract of indorser of a bill, 190. notice of non acceptance or non- payment, 190. 191. demand and notice of non-pay- ment of note, 191, 193. complaint in action against in- dorser, 373. INDUCEMENT: meaning of the term as used in respect to pleadings, 368. INEVITABLE ACCIDENT: as a defense, 164, 165. INFANT: cannot act as executor, 24. wife cannot bar inchoate right of dower, 56. INFANT— Continued. conveyance of an infant's lands, 95. incapacity to contract, 106. when infancy terminates and ma- jority begins, 108. may act as an agent, 184. surety for an infant bound, though infant is not, 146. cannot be sued on a bill of ex- change, 181. verification of pleadings where in- fant is a party, 379. not liable on contract, but liable for a tort, 381. complaint in action brought by- guardian, 383. statute of limitations does not rua against, 313. service of summons on an infant, 839. must appear by guardian ad litem^ 334, 8ii6. arrest of under an order of arrest, 359. costs of unsuccessful action by, 400. cannot submit a controversy to ar- bitration, 433. INFORMATION: defined, 535. INHERITANCE: (See Estates.) estate of, 51. rules of descent, 80, 81. INJUNCTION: to stay waste by mortgagor, 66. to restrain diversion of water, 76, 501. to pirotect trade marks, 103. to restrain publication of a letter, 103. defined and classified, 259. 863. when a matter of right and whea a matter of discretion, 359. ordinary cases in which equity will grant an Injunction, 359. not granted where there is an ad- equate remedy at law, 360. to restrain a public nuisance, 260. ground of restraining a private nuisance, 360. to restrain publication of letters, 260. to restrain disclosure of secrets, 261. to restrain acts of public officer^ 261. INDEX. 575 INJUNCTION— Continued. when denied, 360, 261. suspends running of statute of limitations. 314. to restrain unautliorized action against a receiver, 344. as a provisional remedy, 362. ' when the nature of the action de- termines right to temporary, 363. < when granted on facts extrinsic of •) right of action, 362. when granted only by the general term, 363. by whom granted generally. 868. proof necessary to procure a tem- porary injunction. 863. at what stage of the action granted, 364. when the application for, must be on notice, 364. restraining defendant until deci- sion of the application, 364. in real actions, 364. service of an injunction order, 364. application to vacate or modify In- junction order, 365. in proceedings supplementary to execution 429. INLAND: bills of exchange, 181. INNKEEPER: responsibility of, for goods of his guest, 171. termination of innkeeper's liabil- ity, 171. insanity or sickness of, no excuse for loss, 171. statutory modification of an inn- keeper's liability, 172, 504. INNOCENCE: presumption of innocence of per- son charged with crime, 528. INSANITY: (See LuKATic.) of innkeeper no excuse for loss of goods of his guest, 171. suicide of person insured caused by insanity, 213. presumption of sanity of a person making a will, 318. will made during lucid interval, valid, 218. validity of a will made by a mono- maniac, 218. effect of, on statute ofjimitations, 313, 314. INSANITY— Continued. lunatic cannot commit a crime, 514. proof required to excuse commis- sion of crime on ground of, 514. bringing defense of insanity be- fore the court in a criminal case, 528. conveyance of lands of insane per- sons, 95. incapacity of insane persons to contract, 106. when no defense to an action to foreclose mortgage, 108. of principal revokes the authority of an agent, 140. INSOLVENCY: ' of corporations, 45, 46. transfer of title of personal prop- erty in case of, 104. of a copartnership, 152, 153. concealment by purchaser of the fact of, 356. INSURANCE: defined, 195. insured must have an insurable in- terest, 195. what is meant by an insurable in- terest, 206, 313. limited partnership cannot carry on an insurance business, 151. may be effected through an agent, 196. INSURANCE— FIRE : (See FiuE Insurance, 203-210.) INSURANCE— LIFE : nature of contract of life insur- ance, 210. making application for, 310. concealment or suppression of ma- terial facts, 310. construction of contract, 311, 312. warranty of good health, 211. conditions in the policy, 311. death of insured by the hands of justice, 313. . death of insured by his own hand, 313. insurable interest, 313. assignment of policy, 213. when the policy attaches and ter- minates, 213. proof of death, 214. payment of premiums, 814 neglect to pay premiums, 314. 676 INDEX. INSURANCE— MARINE : uodertaking of the insurer, 195. parol agreement to insure, 195. consideration for the promise of insurance, 196. writings not made a part of the policy, 196. -, by an agent, 196. who may be insured, 197. description of the property in- sured, 197. naming the insured in the policy, 197. changing cargo from one ship to another, 197. open and valued policies distin- guished, 198. double insurance, 198. nature of contract of reinsurance, 198. risks usually insured against, 198. risks not insured against, 199. damage to a ship by rats, 199. liability of insurer of a ship when burned to avoid capture, 199. presumptions as to missing vessel, 199. liability for loss by pirates, rob- bers and thieves, 200. commencement and termination of risk. 300. when policy attaches to goods in- sured, 300. termination of a port-risk, 201. effect of departure from the usual course of the voyage, 201. total loss, 201. construct, ve total loss, 201. partial loss, 201. " one-third off new for old," 302. seaworthiness a condition prece- dent, 203. implied warranty of seaworthi- ness, 203. presumptive evidence of unsea- worthiness, 203. INSURER: (See Insurance.) carrier an insurer of goods car- ried, 173 carrier not an insurer of safety of passenger, 175. carrier an insurer of baggage, 176. INQUEST: defined, 393. when taken, 393. cannot be taken by a defendant, INQUEST— Continued. against a portion only of the de- fendants, 394. rights of the defendant on the in- quest, 394, 395. affidavit of merits, 394, 395. proceedings on the inquest, 295, 296. setting aside inquest, 396. INQUIRY, WRIT OF: ' assessment of damages by, on de- fault, 313. INTENT: legislative intent to control inter- pretation of statute, 5. of annexation as a test in ques- tions as to fixtures, 61. to control in construing contracts, 114, 115, 117, 130. presumption of intent as to time of performance, 115. parol evidence to show intent in aid of construction, 115. INTERES8E TERMINI: defined, 95. assignment of, 95. INTEREST : rate of interest on a note payable in another state, 116, 117. effect of tender of a sum due, 128, 124. the measure of damages for breach of agreement to pay money, 131. INTERLINEATIONS : (See Alteration.) in a will, 324. INTERMIXTURE: of goods, title by, 103. INTERNATIONAL LAW: defined, 7. how enforced, 7. of what composed, 7. INTERPLEADER: in what cases an order of inter- pleader may be applied for, 351. application for order of, when to be made, 351. effect of the order, 351, requisites of affidavit used on ap- plication for order, 851. costs in action of interpleadei; 403. 1111 INDEX. bTi INTERPRETATION: (See Construction.) INTESTACY: cases in which title to property- may be acquired, 104. INTOXICATION: carrier may refuse to carry intoxi- cated person, 177. relief in equity against contracts made by intoxicated party, 247. proof of, by non expert witness, 496. administration of drugs by physi- cian while intoxicated, 518. INTRUDER: in public oflSce, guilty of a misde- meanor, 315. INVENTION: patents for, 103. INVENTORY: to be filed by general guardian, 32. INVESTMENTS: by executors, 238. IRREGULARITY: motion to set aside iudement for, 421. notice of a motion based upon an irregularity, 459. IRRELEVANCY: (See EviDBNCE.) relevant and irrelevant evidence, 463, 465. irrelevant answers, 303. counterclaim cannot be struck out as irrelevant, 303. ISSUE: scope of the word as used in a will, 231. of law to be tried before issue of fact, 370. of law, arises only on demurrer, 370. of fact, how raised, 370. of law, how tried, 370. of fact, when tried by a jury, 371. only material issues need be tried, 373. when triable by the court, 373. when referable, 373. note of issue, 376. ITEMS: of an account need not be stated in a pleading, 273. 37 JEWELRY: liability of innkeeper for loss of, 172. JOINDER: of husband and wife iu actions by the wife, 22. of causes of action in the same complaint, 261. of causes of action in individual and representative capacity, 283 . demurrer for improper joinder of causes of action, 291. of causes of action in complaint in justice court, 307. of parties plaintiff, 336, 337, 338. of defendants, 345. remedy for non- joinder of defend- ants, 845. of contract and tort defeats right of arrest, 355, 356. JOINT CONTRACTORS: to be joined as plaintiffs 337 338. JOINT DEBTORS: effect of a release of one of several, 127. JOINT LIABILITY: mode of determining whether con- tract liability is joint or several, 108. proceedings upon death of a de- fendant in action upon, 350. judgment against part of defend- ants in action on, 413. JOINT OWNERS: to be joined as plaintiffs, 837, 338. redeliveiy of deposit to one of several, 159, 160. joint ownership does not create partnership, 149. JOINT STOCK COMPANY: members of joint stock company liable for all the debts, 151. may sue or be sued in name of president or treasurer, 342. JOINT TENANTS: who are, 68, 151. requisites of a joint tenancy, 69. estate of, under the statutes and at common law, 70. right of survivorship, 71, 15?.. release of share of one joint tenant to another, 71. severance of a joint tenancy, 72. may hold personal property, 101. ^•^8 INDEX. JOINT TEKANTS— CbniiraaeA partners are joint tenants without right of survivorship, 141. must join as plaintiffs, 337, 338. JOINTUEE: defined, 57. when a bar to dower, 57. election between jointure and dower, 57. presumption that a widow has elected to take, 58. forfeiture of, by adultery, 58. JUDICIAL DISTRICTS: divisioa of the state into, 3?2. in which to move on notice, 457. JUDICIAL NOTICE: of public acts, 7, 369. courts do not take judicial notice of foreiga law, 4ti3. • JUDGES: origin or source of power of judges, 319. removal from ofiice, 319. of the court of appeals, 322. disqualification of, 323. definition of the word "judge" as used in the Code, 324. JUDGMENT: against a married woman enforced as if she were single, 22, 418. priority between mortgages and judgments, 66. adverse possession founded on a claim of title under, 86. lien of judgments upon land, 97. change of title to personal prop- erty by, '104. in action between creditor and principal does not bind surety, 146. confession of judgment by a single partner, 152. demand of, in pleadings, 265, 266. pleading judgment of court of special jurisdiction, 268. pleading foreign judgment, 274. pleading judgment of court of general juri-diction, 274. motion for judgment on admitted counterclaim, 300. Pleading a judgment by supple- mental eomplaint, etc., 301. limitation of action on a justice's judgment, 315. should be directed by the report or decision, 388. SlTDGM'E^'r— Continued. may be either interlocutory or final, 409. entiy of judgment by the clerfc on default, 410, 412. after jury trial at the circuit, 411. on acceptance of offer of judg- ment or to compromise, 411. motion for judgment on special verdict, 411. motion for judgment upon ver- dict subject to opinion of the court, 411. entry of, upon decision or report, 411. in action of divorce after refer- ence of the issues, 410. proceedings on entry of judg- ment by default, 412-415. for part of admitted claim, 416. upon an admitted counterclaim, 416. by confession, 417. making justice's judgment a judgment of the county court, 417, 418. where the plaintiff succeeds in part upon a joint demand, 418. for defendant, affirmative relief, 418. the judgment-roll, 419. the judgment-book, 419. entry in the judgment book, 419. docket-book, 420. Hen of docketed judgments, 421. what judgments may be docketed, 431. motion to set aside for irregular- ity, 421. vacating, as a matter of favor, 421. opening judgment in action com- menced by publication, 421. on award, effect of, 433. review of, by appeal, 436, 438. on appeal, 438. motion in arrest of, 639. appeal from judgments in crimi- nal actions, 527, 530. JUDGMENT-BOOK, object and use of, 419. JUDGMENT CREDITOR. remedies of, by proceeding sup- plementary to execution, 426. JUDGMENT DEBTOR: redemption by, after sale under execution, 96. proceedings supplementary to ex- ecution against, 426-483. INDEX. 579 jgDGfMENT-EOLL: In ordinary cases, 418. on conl'ession, 419. on submission of a controversy, 419. ■fay wliom prepared, 419. filing of, 420. on. appeal to a county court, 453. JURAT: requisites of a jurat. 456. JURISDICTION: alleging jurisdictional facts, Tphen necessary, 374. demurrer on ground of want of, 291. of the supremo coui-t, 333. exolusii'e and concurrent, 324. of subject matter not conferred by consent, 324. of tlie person, 324. by granting a provisional remedy, of police justices, 534. objections to, in criminal cases, K8. JURY- right to trial by jury guaranteed by the constitution, 14, 371. actions triable by jury, 371. where jury trial a matter of right, 371.' when jury trial a matter of discre- tion, 373. conclusiveness of findings by, 372. waiver of right to jury trial, 372. qualifications of a trial juror, 377. special or struck jury, 377. foreign jury, 378. challenges to the jury, 378. withdrawing a juror, 881. charge to jury, 381. consultation upon the verdict, 382. judge visiting jury during their consultation, 383. taking documents into jury room, 383. directing a verdict, 383. keeping jury together until they agree, 383. must not decide upon verdict by lot, 383. the verdict, 383. in court of special sessions, 530. challenges in criminal actions, 528. grand jury, 53S. exemption of jurors from arrest, 358. JVliY—Oontumed. affidavits of jurors to impeaoh their verdict, 393. sheriff's jury, assessment of dam- ages before, 415. JUSTICES: of the supreme court, 333. general term justices, 333. JUSTICE'S COURT: pleadings in, 307. limitation of action upon judg- ment rendered by, 315. commencement of actions in, 335. summons, requisites of, 335. service of the summons, 335. proof of service of summons, 336. appearance in, 336. joinder of plaintifls in, 836. defendants in, 336, 337. order of arrest in, 359. requisition to replevy, 361. transcript of judgment of, 418. docketing judgment on transcript, 418. review of judgments rendered by, 449. appeal, how taken, 449. service of notice of appeal, 449, 450. security on appeal, 450. return on appeal, 451. defective return, 451. affidavits in lieu of a return, 451. dismissal of appeal, 453. proceedings in county court on appeal, 452. judgment roll, 453. costs on appeal, 453. offer of judgment, 453, 454. restitution, 454. JUSTIFICATION: in action for slander, 375. how pleaded, 375. LANDLORD AND TENANT: rieht to remove fixtures, 61, 137, 128. presumption that the possession of tenant is under landlord, 88. tenant holding over does not ac- quire title by adverse possession, 88. action for use and occupation, 75, relation of, essential to action for use and occupation, 70. liabilily for rent after destruction of leased premises, 60. 580 INDEX. LANDLORD AND TENANT— Co»- tinued. right of lessee of farm to remove manure made thereon, 62. tenancy at will, 62. holding over after expiration of term, 63. tenancy at sufferance, 63. LARCENY: grand larceny, 521. of growing trees, fixtures, etc., 521. thief cannot give title to bona fide purchaser, 120. innkeeper liable for the loss of goods of guest by, 171. loss of goods by carrier caused by, 173. LATENT AMBIGUITY: defined, 479. ' LAW: in general, 1, 7. defined, 1. municipal, 1, 3. civil, 1, 5. power to make, 1, 3. common or unwritten, 1, 2. statute or written, 2. power to determine constitution- ality of statutes, 2, 3. statutes unconstitutional in part, 3. when the question of constitution- ality is to be determined, 3. public and private acts distin- guished, 3. when statutes take effect, 4. origin of American common law, 4. evidence of the common law, 4. binding force of judicial deci- sions, 5. analysis of statutes, 5. interpretation of statutes, 5, 6. courts cannot override a plain stat- ute. 6. pleading statutes, 7, 269, 270. international law, 7. basis of all laws, 7. rights of citizens to equal protec- tion of the law, 16. every one presumed to know the law, 251. ignorance of the law no defense, 2S0, 261. equity will not relieve against mistake of law, 250. law of place, 116. foreign laws must be proved like other facts, 40S. LAW — Continued. judicial notice of general statute* and common law, 463. presumptions of law, 463, 464. criminal law, 513-531. LEADING QUESTIONS: defined, 484. on direct examination, 484. on cross-examination, 484. LEASE: defined, 94. for more than one year must be in writing, 95. of agricultural lands cannot ex- ceed twelve years, 95. words used to create a lease, 95. enforcement of covenant to give or renew a lease, 254, 256. LEAVE TO DEFEND: when necessary. 344. LEAVE TO SUE: partition by infant plaintiff, 343. action on bond, 348. effect of omission to obtain, 343. remedy where a lunatic is sued without, 343. remedy of a receiver sued with- out leave, 344. LEGACY: debts must be paid before legacies, 239. payment of specific before gene- • ral, 240. abatement of legacies, 240. LEGATEE: a competent witness of the execu- tion of a will, 233. effect of attestation of a will by a legatee, 223. cannot be arrested except for his personal act, 359. LEGISLATURE: exemption of members from ar- rest, 358. LETTER: property of the writer of a letter, 103. restraining publication of, 103. LETTERS OP ADMINISTRATION: to whom granted, 285. oath and security required before issuing, 236. witli will annexed, 236. de bonis nan. 337. INDEX. 581 LETTERS TESTAMENTARY: withholding, from person named as executor in will, 233. oath of executor before issuing, 23o. LEVY: on personal property under an execution, 426. care and custody of the goods seized, 426. LIBEL: distinction between libel and slan- der, 10, 11. constitutional provisions as to criminal prosecution for, 11. complaint in action for, 374. defenses available in actions for, 374, 375. pleading justiiication, 875. answer in action for, need not be verified, 278. limitation of actions for, 316. cause of action for, not assignable, 340. practice in regard to granting order of arrest for, 857. costs in action for, 399. defined, 519. criminal offense of sending libel- ous matter for publication, 519. LIBERTY: right of personal liberty, 10, 13. distinction between natural and political, 9. of speech and of the press, 11, 13. protection to personal liberty by writ of habeas corpus, 13 of conscience, 13. LICENSEE: cannot set up adverse possession against licensor, 87. has a mere personal right not sus- ceptible of conveyance, 87. LIEN: for purchase-money of land, 65. of an agent, 138. of a factor, 129. surrender by creditor of a lien on property discharges sxirety, 143. of pledgee, as against true owner, 1G6. of carrier for freight, 177. of an attorney, 321. of a docketed judgment, 421. LIFE ESTATE; (See Estates, Dowek, Jolntubb.) LIFE ESTATE— Core«2n«fi(Z. quantity of interest conveyed with,' 53. tenancy for life and tenancy 'pur auier me, 53. effect of death of tenant pur autcr me before cestui que vie, 54. conveyance by tenant to a granteee, his heirs and assigns, 53. life tenant can convey no greater estate than he has, 53. estate by tlie curtesy, 54. dower, 54-59. jointure, 57. merger of life estates, 59. LIFE INSURANCE: (See Insurance, Life, 310.) LIGHTNING: injuries by, when not covered by fire policy, 207. LIMITATION: distinction between a limitation and a condition, 63. LIMITATION OF ACTIONS: to recover real property. 86, 87, 313. revivor of debt barred by the statute. 111. partner, after dissolution, cannot revive debt barred by the statute, 153. origin of, 313. computation of periods of limita- tion, 313. when tlie time limited commences to run, 313. effect of absence from the State on, 313. to recover real property where the defendant is under disability, 313. effect of disability in other cases, 313, 314, 315. by personal representatives, 313. against personal representatives, 313, 314. effect of war upon, 314. effect of an injunction or statutory proliibition on, 314. upon sealed instruments, 315. upon contract liabilities not under seal, 315. for the recovery of chattels, 815. upon judgments rendered by a justice of the peace, 315. against sheriff, coroner, constable, etc., for non-payment of money collected, 315. 582 INlDEX. LIMITATION OF ACTIONS— Core- tinued. to recover damages for injuries from negligence, 315. of libel, slander, assault, battery, false imprisonment, 316. against sherifE for escape, 316: for dower, 316. to recover disputed claims against executors, etc., 316. requisites of acknovpledgment or new promise, 316. application of the statute of limi- tations — exceptions, 316. effect of reversal on appeal, 817. discontinuance not allowed where counterclaim would be barred, 5u3, of criminal actions, 534, 525. LIMITED DIVORCE: (See Divorce.) 22. LIMITED PARTNERSHIP: (See Partnership.) nature of, 148. necessary defendants in action against, 155, 346. LIQUIDATED DAMAGES: defined, 129. enforcement of contracts for, 130. use of words "liquidated dam- ages " not controling, 130. construction of contracts as to, 130. LITERARY PROPERTY: at common law and under copy- right act, 102. LOAN: (See Bailment.) for use and for consumption dis- tinguished, 163. for consumption, nature of the bailment, 164. obligation of a borrower for use, 164. care and diligence required of the borrower, 164. inevitable accident as an excuse for loss, 164, 165. loss of borrowed horse, 165. LOCATIO: (See Bailment.) 156, 168. LOST PROPERTY: restored without knowledge of offered reward, 113. LOST PnOPEKTY— Continued. obligations and rights of finder of, 158. responsibility of manditary for loss of property, 163, 163. liability of pledgee for loss of pledge, 166. procedure to recover on lost bill or note, 185, 186. establishing a lost will, 236. relief in equity in case of lost bonds, etc., 249. secondary evidence of lost instru- ments, 490, 491. LOTTERY: is unlawful and a public nuisance,^ 530. LUNATIC : sale of lands of lunatic must be under order of court, 95. lunacy of principal terminates agency, 140. ■will made during lucid interval, valid, 218. service of summons on, 329, 330. appearance by, 334. commencement of action against, without leave of court, 343. arrest of, 359. cannot commit a crime, 514. MAGISTRATE: defined, 535. proceedings before, where defend- ant is charged with a felony, 525. proceedings before, where special sessions has jurisdiction, 530. MAGNA CHART A: the first guarantee of the right to personal liberty, 13. MALICIOUS PROSECUTION: costs in action for, 399. complaint in action for, 386. MALPRACTICE: liability of surgeon for, 1C2. MANDAMUS: nature and office of the writ, 435. will not issue to compel actioa in a particular manner, 435. to reinstate an appeal, 435, 452. MANDATUM: (See Bailment), 156. INDEX. 583 TfflANURE: farm tenant cannot remove man- ure made on farm, 63. MANUSCRIPT: right of author in unpublished manuscript, 103. MARRIAGE: defined, 17. when complete, 17. no particular form or ceremony required, 17. age at which parties may marry, 17. under age of consent, 18. «ffect of marriage at common law on wife's property, 18. effect of, under enabling acts, 18, 19. promise of marriage by an infant not binding, 35. transfer of title to personal prop- erty by, 104. revocation of wills by marriage, 327. hearsay evidence of, 473. HARRIED "WOMAN: rights at common law in respect to property, 18. rights under enabling acts, 18. earnings of, 19. disposition of property of, dying intestate, 19, 20. may sue her husband, 30. may maintain action for slander, 80. liability of husband for wife's torts ' or debts, 20, 31. cannot bind her husband by her contracts, 21, 107. may make her husband managing agent, 21, 33. liability of, upon her contracts, 107. enforcement of judgments against, 23, 418. "joinder of husband and wife as plaintiffs, 33. -when liable for debt of her hus- band, 23. may appoint an agent, 134. liability on her bills or notes, 183. disposal of property by will, 230. may become an executrix, 333. liable for crime committed in pres- ence of husband, 514. MARINE INSURANCE: 195. (See Insukance, Marine.) MASTER AND SERVANT. liability of master for acts of hia servant, 33. Injuries to servant from negli- gence of fellow servant. 33, 34. duty of master to provide for safe- ty of servant, 34. how far servant assumes risks of employmeut, 34. liability of employer for acts of contractor's servants, 34. discharge of servant before expi- ration of term, 35. damages in action for wrongful dismissal, 35. responsibility of mandatary for negligence of servant, 163. liability of innkeeper for thefts of his servant, 171. carrier's liability for negligence of servants may be limited, 175. MAXIMS: in equity, 343. equity follows the law, 243. where equities are equal the law must prevail, 344. . he who seeks equity must do equity, 344. equality is equity, 344. equity treats a thing as done which ought to be done, 345. MECHANIC: accidental destruction of material used by, 170. unskillful and negligent work by, 170. skill required of, 170. MERGER; of life estate in the inheritance, 59. of a term for years, 63. requisites to produce a merger, 63. MERITS: (See Affidavit of Merits.) orders which "involve the mer its," 448. MILITIA: exemption from arrest, 358. MINES AND MINERALS: pass on a conveyance of lands, 49. MINISTERS: exemption of foreign ministers from arrest, 358. confidential communications to, 477. 584 INDEX. MINUTES; motion for new trial on minutes of the court, 380. MISCARRIAGE: sale of drugs to produce, a felony, 520. MISCONDUCT: disbarment of attorneys for, 330, 331. MISDEMEANOR: (See Criminal Law.) no accessories to, 515. acting officially without taking official oath, etc., 515. ' intrusion into a public office, 515. escape from custody, 516. inciting another to give false tes- timony, 516. willful delay of a client's cause, 517. willful omission of officer to per- form official duty, 517. performance of acts prohibited by slatute, 517. recording unacknowledged con- veyance, 517. sending libelous matter for publi- cation, 519. use of tobacco by minor in pub- lic place, 519. sale of tobacco, etc., to child under sixteen, 519. keeping disorderly place, 520. taking usury, 520. negligently permitting spread of Are, 520. making conveyance to defraud creditors, 523. receiving deposit in insolvent bank, 532. admission to bail before convic- tion for, 539. MISJOINDER: remedy for misjoinder of parties, 391. MISNOMER: defense must be presented by an- swer, 328. MISREPRESENTATIONS : (See Fraud.) by agent in sale of goods, 139. of insured, effect of, 304. ! of a nature not entitled to belief, 247. MISTAKE: recovering back money paid through mistake of fact, 249. of law, not a ground for equita- ble relief, 25U. of fact, relief in equity against,. 350, 351, 353. in wills, relief in equity, 353. specific performance when decreed in case of, 354. vacating judgment recovered through mistake of defendant, 431. MITIGATION: proof of matters in mitigation la action of slander. 275. a partial defense, 294. MOB: carrier liable for loss of goods caused by, 173, 174. delay in transportation caused by, 178. MODIFICATION: of injunction, motion for, 365. of ex parte orders, 457. MONEY: loss of money at an Inn, liability of innkeeper, 173. MORTGAGE: joinder of wife with husband in executing, 55. dower in mortgaged premises, 66. defined, 64. power of sale in, 64. need not contain power of Sale or covenant to pay, 65. by separate instruments, 65. deed may be shown to be a mort- gage, 65. assignment of, 65. equitable mortgage, 65. recorded conveyance takes ptAority over unrecorded mortgage, 66, 97. proof or acknowledgment to en- title mortgage to "be recorded, 66. unrecorded mortgage takes pri- ority over subsequent judgment, 66. purchase money mortgage takes precedence over prior judg- ment, 66. interest of mortgagor and mort- gagee in mortgaged premises, INDEX. 585 MORTGAGE— Continued. injunction to stay waste by mort- gagor, 66. discharge of mortgages from record, 67. tender of the sum secured, effect of, 67. remedy on the bond for deficiency after foreclosure, 67. search for mortgages, 97. by an insane person, 108. conveyance subject to a mortgage, effect of, 147. party to enforce mortgage taken by an executor, 338. leave to sue on bond secured by, 343. costs in action to foreclose a mort- gage, 403, 405. foreclosure of mortgages by ad- vertisement, 433, 434. MORTGAGEE: interest of, in mortgaged prem- ises, 66. has an insurable interest in mort- gaged premises, 206. may maintain action to stay waste, 66. MORTGAGOR: interest of, in mortgaged premises, 66. has an insurable interest, 206. may be enjoined from committing waste, 66. MOTION: is an application for an order. 454. enumerated motions, 454. non-enumerated motions, where heard, 455. separate motions for each objec- tion not permitted, 455. when based upon affidavits, 455. affidavits, 455, 456. for what judicial district noticed, 457. notice of motion, 457, 458. ex parte applications, 457. general rule as to time of service of notice of motion, 458. second application after denial of 6 e parte application, 458. default, 458. pleadings once served need not bq re-served, 458, 459. specifying irregularity in notice, 459. order to show cause, 457, 459. MOTION— Continued. effect of accepting leave to renew, 459. withdrawal of notice of motion, 459. opposing motion, 459. to compel plaintiff to separately state causes of action, 366, 282. to dismiss complaint for insuf- ficiency, 367. for leave to serve a supplemental pleading, 302. to strike out sham and irrelevant answers and defenses, 303. to strike out irrelevant and re- dundant matter, 303. for judgment on frivolous plead- ing, 3u4. for an order of interpleader, 351. to change place of trial, 353. for order consolidating actions,. 353. for order of arrest, 354, 855. for a reference of the issues, 375. for a nonsuit, 380, 381. for a new trial on minutes of pre- siding judge, 390. for new trial, at general term, 391. for new trial, upon ground of sur- prise or newly discovered evi- dence, 391. to set aside an inquest or default, 896. for a postponement of the trial, 397. costs of motions, 404, 405. collection of costs of motion, 467. for judgment upon special ver- dict, 411. for judgment on verdict subject to opinion of the court, 411. for judgment in divorce, 413. for judgment in case of default, 413. to set aside judgment for irregu- larity, 421. for leave to issue execution, 422. for a warrant in supplementary proceedings. 428. to compel entry of an order, 439. to set aside an indictment, 537. in arrest or judgment, 529. MUNICIPAL CORPORATIONS: liability for injuries caused by ser- vants of contractor, 34. costs in actions against, 406. MUNICIPAL LAW: defined, 1. 686 INDEX. MURDER: in the act of committing a felony, 518. punishment by death, 518. time to prosecute for, not limited, 534. MUTUAL INSURANCE: security offered by, 303. MUTUALITY: essential to a right to compel spe- cific performance, 254. MUTUUM: nature of the bailment, 163. return of substituted property dis- charges bailee, 164. loss of the property bailed through inevitable accident, 165. NAME: corporations must have a name, 39. of party insured in a marine policy, 197. inserting names of parties in the summons, 337. middle name of parties not mate- rial, 328. suing party by a fictitious name, 328. remedy against misnomer, 328. NATIONS; LAW OF: (See International Law.) NATURAL LIBERTY; 9. NATURAL LIFE: use of the term in conveyances, 10- NECESSARIES: husband bound to provide neces- saries for his wife, 31. when husband's liability for, ceases 21. liability of infant for, 24. NECESSITY: way by necessity, 74. JfE EXBAT: at common law, 13. writ of ne exeat abolished, 13, 354. remedy given by the Code in lieu of, 354. NEGLIGENCE: liability of master for negligence of servant, 33. NEGLIGENCE— Co7i«re««(f. of a fellow servant, 33, 34. of the servants of a contractor, 34. liability of factor or broker for, 137. of bailees, 157. of depositary, 158, 159. of workmen, 162, 169, 170. of surgeon, 163. of a mandatary, 162, 163. of a servant of a mandatary, 163. of hirer of a chattel, 168, 169. of artisan or mechanic, 169, 170. carrier may contract for exemp- tion from liability for, 174. of insured, no defense to actioa upon policy, 308. which has defeated remedy at law will defeat equitable remedy, 258. limitation of actions to recover damages for injuries from, 315. costs in actions against municipal corporations for injuries from, 406. criminal liability for negligently permitting spread of fire, 520. NEGOTIABLE PAPER: (See Bill of Exchange, Check, Peomissort Note.) bill of exchange defined, 180. promissory note defined, 180. check defined, 180. parties to bills of exchange, 180. liabilities of the various parties to a bill, 180. theory of the use of bills, 181. inland and foreign bills, 181. accommodation bill. 181. presumption raised by acceptance of a bill, 181. bill made by infant and adult, 181. by married women, 182. liability of executor on a negotia- ble note, 182. liability of executor as acceptor of a draft, 182. indorsement or acceptance by agent without personal liability, 183. liability of agent on note made in name of principal, 183. forged signature creates no liabil- ity, 183. liability of partnership on accom- modation note, 183. note payable to order of maker or fictitious person, 183. words rendering note negotiable, 183. INDEX. 587 JSTBGOTIABLE PAT'ER— Continued. indorsement of note payable to bearer, 184. note payable in cash or specific articles not negotiable, 184. note payable on happening of uncertain event not negotiable, 184. note payable six months after death, 184. note payable thirty days after date but not dated, 184. effect of payment of post dated check before day of date, 185. discrepancy between amount in margin and body of note, 185. payment by note or bill, 185. proceeding's to recover on lost note or bill, 185. notice of loss of bill, note, or check, 186. presumptions in favor of negotia- ble paper, 186. contracts included in unqualified indorsement, 186. warranty implied in an indorse- ment, 186. liability on notes diverted by agent from use intended, 187. transfer of paper payable or in- dorsed to several persons, 187. indorsement and transfer of over- due note, 187. indorsement in blank and in full, .187, 188. defense of usury may be inter- posed as against bona fide holder, 188. illegality of consideration as a de- fense," 188. ■bona fide holder defined, 188. when said to carry the equities with it, 189. purchaser, with notice, from bona fide holder takes free from equi- ties, 189. ■engagement of drawer of bill of exchange, 189. contract of iudorser of a bill, 190. certified check', and its peculiar advantages, 190. parol acceptance not valid, 190. unconditional written promise to accept equivalent to acceptance, 190. release of acceptor and subsequent transfer of bill, 190. effect of failure to give notice of non-acceptance, 191. service of notice of non-payment or non-acceptance, 191. NEGOTIABLE PAFEB,— Continued. protest defined, 191. presentment for payment as a con- dition precedent to right of ac- tion, 191. charging indorser without demand and notice, 192. consideration of waiver of demand and notice, 192. demand of payment of notes pay- able on demand, 192, payable on Sunday, 192. payable on public holiday, 193. public holidays, 193. half-holidays, 193. notes payable on Saturday, 193. demand of payment, where and how made, 193, x94. guarantor of payment not entitled to notice of non-payment, 194. consideration of agreement to ex- tend time of payment, 109, 110. NEW MATTER: under the old and present system of pleading, 363. defined, 296. NEW PROMISE: revival of liability on debt barred by statute of limitations, 111. requisites of a new promise to pay outlawed debt, 316, NEW TRIAL: grounds of motion for new trial upon the minutes, 390. mode of moving for new trial on the minutes, 390. motion at general term for a new trial, 39r. motion for, on ground of surprise- or newly discovered evidence, 391. when a case is not required on motion for, 361. facts justifying new trial on ground of newly discovered evi- dence, 391. motion papers on application for, 392. costs on motion for, 405. appeal from order granting new trial, 438. motion for, as a preliminary to re- view of facts after iury trial, 439. before a justice after appeal to county court, 452. proceedings on new trial in county court on appeal, 452. 588 INDEX. NIGHT-TIME; meaning of the term as used in statute relating to burglary, 531. NOMINAL PARTNERS: who are, 148. NON-ENUMERATED MOTIONS: defined, 455. NON JOINDER: remedy for, 291, 347. NON-JUDICIAL DAYS: defined, 319. NON-RESIDENT: probate of will of, 234, 235. right to sue in courts of this state, 344. judgment by default against, 414. NONSUIT: where complaint does not state a cause of action, 267, 381. voluntary and involuntary, 380. motion for, when made, 267, 380, 381. duty of the court to nonsuit, 381. plaintiff cannot submit to, after jury have retired, 381. NOTARY: criminal liability for false certifi- cate of acknowledgment, 521. NOT GUILTY: plea of not guilty entered for de- fendant refusing to plead, 527. plea of insanity as a specification of plea of not guilty, 527. NOTE OF ISSUE: to put cause on calendar, 376. contents and time of filing, 376. effect of omission to file, 376. NOTICE: by parent that he claims wages of his child, 28. to agent of corporation notice to corporation, 48. to director of corporation when notice to corporation, 48. of revocation of agents authority, 140. of acceptance of guaranty or suretyship, 144. of sale of property pledged, 167. to limit liability of an innkeeper, 172. to limit a carrier's liability, 174. NOTICE— Continued. of presentment of bill aud non- acceptance, 191. service of notice of non-paynient and non-acceptance, 191. of non-payment to charge indorser, 191, 192. waiver of notice, 192. of non-payment not necessary to charge guarantor, 194. to creditors of decedent to present claims, 239. of election to treat unverified plead- ing as a nullity, 280. averring notice in a complaint, 285. to accompany summons served without complaint, 326. of no personal claim, 357. of appearance, 334. of trial. 370. of taxation of costs, 406. of retaxation of costs, 407. of sale on foreclosure by adver- tisement, 433, 434. of appeal, 437, 449. of entry of judgment, 441. notice to produce a paper on the trial, 499. of motion, 457. service of notice of motion, 458. of a motion based upon an irreg^ ularity, 459. withdrawal of notice of motion, 459. of motion by corporation, to ex- tend time to answer, 290. of application for an injunction, 364. of motion to vacate or modify in^ junction, 365. of application for appointment of receiver, 369. costs not granted on motion unless asked for in notice, 405. NUDUM PACTUM: defined, 109. NUISANCE: injunction to restrain a nuisance, 259. 260, 364. jury trial of action for, a matter of right, 371. lottery is a public nuisance, 620. NUNCUPATIVE WILL: defined, 316. OATH: defined, 483. how taken, 483. INDEX. 589 OATR— Continued. no defense to prosecution for per- jury that oath was irregularly taken, 516. of executor, 235. executor renounces office by fail- ure to take, 234. of administrator, 236. of referee, 385. of arbitrators, 432. OBJECTIONS: to competency of witness, when to be taken, 483. to evidence are worthless after the evidence is in, 390. not taken below which may be heard on appeal, 446. OCCUPANCY: defined, 101. title by occupancy, 101. title to tree converted into shingles by a trespasser, 101. adverse possession, 87, 88. OFFER OF JUDGMENT: entry of judgment on offer, 411. costs on appeal after offer of judg- ment, 454. OFFICE: intrusion into office a misde- meanor, 515. attorney must add to signature of summons hie office address, 825. removal of attorney from, 321. OFFICER: omission to perform a public duty a misdemeanor, 517. officers of courts, 321. OPINIONS: when competent evidence, 495. of experts, 495. as to value, 495, 496. as to intoxication of a person, 496. as to sanity of a testator or gran- tor, 496. jury to decide as to the value of opinions given, 496. ORDER: defined, 454. ex parte orders, who may make, 457. vacating or modifying ex parte or- ders, 457. to show cause, 458, 459. of arrest, 354, 357, 359. injunction order, 363-365. ORDER— Coniinuecl. for examination of judgment deb- tor, 426-429, 431. of interpleader, 351. appointing referee, 373-375. appeals from orders, 436-439, 446, 447. compelling entry of an order, 439. OSTENSIBLE PARTNER: defined, 148. OUTGOING CROP: right of tenant to, 60 PAPERS obtaining admission of genuine- ness oi, 497. compelling production of papers on the trial, 498. effect of refusal to produce papers on notice, 499. PARENT AND CHILD: obligation of parent to support his child, 37. obligation of child to support in- digent parent, 27. stepfather not bound to support stepson, 37. earnings of child belong to parent, 28. notice by parent of claim to earn- ings of child, 28. right of adult son to recover wages from his father, 28. insolvent father may emancipate minor child, 28. embezzlement by child as a de- fense to action for wages, 28. theory of recovery by parent for injury to child, 39. damages recoverable for seduction, 29. consent of parents to adoption of child, 503, 504. correction of child by parent, 518. criminal liability of parent lor desertion of child, 519. PAROL EVIDENCE: (See Evidence.) as a substitute for written evi- dence, 469, 470. inadmissible to contradict or vary a written instrument, 478. to defeat a written instrument, 479. of papers whicb a party refuses to produce on notice, 499. 590 INDEX. PAROL ^YiriENCE- Continued. to aid in construction of contracts, 115. PARTIAL DEFENSES: may be set up by answer, 294. demurrer to a partial defense, 394. examples of, 294. PARTIAL LOSS: defined, 301. PARTICULAR AVERAGE: the equivalent term for partial loss, 301. PARTIES: to contracts, 106, 142. persons incapable of contracting, 106. joint or several liability, 108. to a bill of exchange, 180. to actions, 336. joinder of plaintiffs in actions, 336, 337. defendants in actions, 336. joinder of defendants, 337, 345, 347. iaterest authorizing a joinder of plaintiffs, 337. having dis'inct and independent claims cannot join, 837. interest compelling a joinder of plaintiffs, 337. common partner in two firms, 538, 154 joinder of assignor and assignee, 338. joinder of joint tenants or tenants in common, 338. plaintiff refusing to sue, 338. when one of several parties may sue or defend for all, 338. real party in interest, 339. at common law, 338. right of assignee to sue in his own name, 339,-340. foreign government may sue, 541. to actions by the State, 541. foreign corporations may sue, 341. aliens may sue, 344. foreign executor, 344. non-residents, 344. joinder of husband and wife, 23, 34.'). plaiiUifEs in partition, 345. defendants in partition, 345, 346. to ail action of foreclosure, 346. to actions against partnerships, 152, 155, 338, 346. remedy for non-joinder of defend- ants, 347. PARTIES— Continued. remedy for misjoinder of defend' ants, 391. death of parties, 347-350. compelling parties to interplead, 351. change of parties by amendment, 305. jurisdiction of the person of the defendants, 324. inserting names of parties in th& summons, 327, 338. appearance of defendants, 334, 336. exemption of parties from arrest, 358, 396. competency of parties as witnesses,. 482. to appeals, 436. verification of pleadings by, 279. PARTITION: severance of joint tenancy, etc., by, 72. of lands held by husband and wife, 72; 73. complaint in partition, 388. by infant plaintiff, leave to sue, 343. plaintiffs in partition, 345. necessary parties in partition, 346. persons who may be made parties- at option of plaintiff, 346. place of trial of actions for parti- tion, 352. injunction to stay waste, 364. action for partition triable by jury, 351. costs in actions for partition, 403. additional or extra allowance of costs in, 405. PARTNERSHIP: defined, 148. general divisions of partnerships, 148. ostensible partners, 148. nominal partners, 148. special partners, 148. dormant or secret partners, 149. joint purchase does not create a partnership, 149. share in profits and loss necessary to, 149, 150. part of profits in lieu of salary of agent, 150. working farm on shares, 150. presumption as to division of profits, 150. theory of liability of secret or dor- mant partners, 150. INDEX 5&1 PARTNERSHIP— Continued. liability of retiring partner, 151. interest of partners in partnership property, 151. liability of members of joint stock company, 151. power of one partner to bind the firm, 151. confession of judgment by one partner, 152. sale of copartnership property by single partner, 153. liability of partners for partnership debts, 152. defendants in action for breach of warranty of firm property, 152. how dissolved, 152. effect of dissolution on rights and liabilities of partners, 153. revival of partnership debt barred by the statute, 153. rights of individual and firm cred- itors, 153. lands of, regarded as personalty in equity, 153, 154. dower in partnership lands, 154. liability of firm for fraud of part- ner, 154. suits between partners, 154. suits between firms having a com- mon partner, 154, 338. compensation of partner for extra services, 155. necessary defendants in actions against limited partnerships, 155, 346. liability on accommodation note made by one partner, 183. indorsement by partners to trans- fer title, 187. compelling specific performance of contract to form, 256. joinder of partners as plaintiffs, 337. joinder of defendants in action asainst a partnership, 346. admissions of a partner as evi- dence against firm, 475. PART PAYMENT: as a satisfaction of an entire de- mand, 125, 126. PASSENGERS: liability of carrier of passengers, 175. PATENT: defined, 103. who may obtain a patent, 103. assignment of patent right, 103. PATENT— Continued. not liable to seizure under execu- tion, 103. PATENT AMBIGUITY: 479. PAYMENT: by note, when a good defense, 133. by note, as an extinguishment of prior indebtedness, 133, 185. of tender into court, 134, 125. part payment in satisfaction of en- tire demand, 135, 136. altering time of payment of note, 128. discharge of surety by extending time of payment, 143, 144. guaranty of jiayment, 147. of a post dated check, 185. of premiums of life insurance, 214. of debts and legacies by execu- tors, 239. sale of decedent's lands for pay- ment of debts, 340. proof of payment under a general denial, 396. demand of payment of bills or notes, 191-194. PEACE: security to keep the peace, 524. prevention of breaches of the peace, 524. PEDIGREE: hearsay evidence admissible to es- tablish matters of, 473. PENALTY : construction of penal statutes, 6. lor not adding residence to namea of witness to will, 231. indorsement of summons in ac- tion for, 327. arrest in action for, 855. PEREMPTORY CHALLENGES: in civil actions, 379. in criminal actions, 528. PERFORMANCE: part performance of an entire contract, 33. presumption as to time of perform- ance, 115. alleging performance of condi- tions precedent, 368, 385. compelling specific performance of contracts, 255. PERILS OF THE SEA: insurance against, 198. 592 INDEX. PERJURY: irregular administration of an oath no defense, 516. subornation of perjury, 516. PERSON: jurisdiction of the person, how acquired, 324. cause of action for injuries to, not assignable, 340. execution against the person, 423, 434. PERSONAL LIBERTY: right of, 10, 13. PERSONAL PROPERTY: meaning and scope of the term, 99. distinction between real and per- sonal, 49. chattel defined, 99. chattel real and chattel personal distinguished, 89. division and classification, 99, 100. absolute property in chattels, 100. qualified property in chattels, 100. chose in action defined, 100. may be held in joint tenancy or in common, 101. acquisition of title to, 101. power of corporations to take, hold and transmit, 41. disposition of, on dissolution of corporation, 45 effect of marriage' on personal property of wife, 18. title by occupancy, 101. title by accession, 101, 102. fraudulent intermixture of goods, 101, 102. author's property in his published works, 102. patents, 103. assignment of patent rights, 103. trade-marks, right to exclusive use of, 103. letters, property in, 103. transfer of title by act of the law, 104. acquisition of title by the govern- ment by forfeiture, 104. change of title by judgment, 104. change of title by death and in- testacy, 104. transfer of title by gift, 104. unauthorized conversion of, into realty by guardian, 30. PERSONAL REPRESENTATIVES: (See Executor, Administrator.) PERSONAL REPRESENTATIVES — Continued. presumption that parties to con- tract intend to bind, 115. PERSONAL RIGHTS: classification of the rights of per- sons, 9. absolute rights, 0, 10. natural, political and civil liberty, 9. right of personal security, 10. justifiable homicide, 10. injuries to the reputation, 10. slander and libel, 10, 11. liberty of speech and liberty of the press. right of personal liberty, 12. magna cliarta, 13. habeas cm-pus, 13. suspension af the writ of habeas corpus, 13. writ of neexeat regno, 13. liberty of conscience, 13. right of trial by jury, 14. right of property, 14. protection of citizen in enjoyment of lite, liberty and property, 14, taking private property for public use, 14. taking private property for a pri- vate use, 15. destruction of property without compensation, 15. right to assemble and petition, 16. carrying arms for self defense may be prohibited, 16. state cannot deny equal protection of its laws, 16. PERSONAL SECURITY: right of, 10. PHYSICIAN: cannot disclose information gained professionally, 478. offense of administering poison while intoxicated, 518. PIGNU8: (See Bailment, Pledge.) PIRACY: insurance against loss by piracy, 198, 200. PLACE: the law of place affecting validity of contracts, 116. allegations of place in pleadings, 2?1. INDEX. 593 PLACE OF TRIAL: ■where the subject of the action is situated, 352. of an ac.ion against a public oiB- cer, 352. changing place of trial by amend- ment, 305. change by order of the court, 352. proceedings to change jJlace of trial, 353. change of place of trial for con- venience of witnesses, 353. change of place of trial of action in county court, 353. PLAINTIFF: (See Pauties.) PLEA: under the former system of plead- ing, 364. to an indictment, liow interposed, 528. authorized pleas to an indictment, 528. defense of insanity, 528. in a court of special sessions, 530. PLEADING: defined, 262. office of, 263. analysis of complaint, 262. logic of pleadings, 262, 263. under the old system, 263, 264. the first pleading on the part of the plaintiff, 263. the first pleading on the part of defendant. 263. second pleading on part of plaint- iff, 264. further pleading on part of defen- dant, 264. statute determining the sufficiency of a pleading, 265. iolioing and indorsing pleadings, 265. objection to pleadings not folioed, how taken, 265. lequisites of a complaint in a court of record, 265. ■"title of the action," defined, 266. causes of action must be separ- ately stated ?nd numbered, 256. Introductory clauses, 266. remedy of defendant where causes of action are not separ- ated, 266. need not be dated, 266. must be subscribed by the attor- ney for the party. 267. mode of stating facts in, 267, 270, 273. 38 PLEADING— Continued. what facts must be pleaded, 267. remedy for failure to state cause of action, 267. facts necessarily implied need not be stated, 267. facts showing right to provisional remedy need not be pleaded, 268. facts which need not be proved, need not be pleaded, 268. conclusions of law should not be pleaded, 268. mode of pleading conditions pre- cedent, 268. hypotethical pleading not allow- able, 268, 285. matter of inducement, 268, 269. matters of aggravation, 269. surplusage defined, 269. allegations of non-payment, 269. alleging bar of statute of limita- tions, 269. not necessary to allege that a con- tract is in writing, 269. general statute need not be plead- ed, 7, 269. facts judicially noticed need not be pleaded, 269. pleading private statute, 7, 269. pleading laws of other states, 270. remedy against indefinite and uu- certain pleadings, 270. allegations of time, 270, 271. allegations of place, 371. allegations of value, 273. allegations of quantity, 272. alleging appointment of executor or administrator, 373. items of account need not be plead- ed, 273. setting forth copy of instrument for payment of money, 273. in actions against an indorser, 273. pie ;ding foreign judgment, 274. pleading conditions precedent, 285, alleging jurisdictional facts, 274. in actions of slander or libel, 274. pleadins; justification, 275. pleading title to land or to per- sonal property, 275. pleading wrongful taking or de- tention, 376. construction of pleadings, 376. verification of pleadings, wlien re- quired, 277. cannot be used as evidence in criminal prosecution, 27'<. effect of not verifying complaint. 277. 694 INDEX. PLE ADINa— Continued. yerificatioii of answer, when re- quired, 277. Terification of answer in divorce not required, 278. right to omit verification does not give right to omit answer, 278. verification of pleadings of corpo- rations, 278.- verification of pleadings on part of the people, 278. verification by agent or attorney, 378, 279. form of verification by a party, 279. verification by person other than a party, 279. verification may be confined to part of the pleading, 279. verification by guardian ad litem, 279. remedy for defective verification, 280. service of defective copy pleading, 280. single causes of action. 280. splitting causes of action, 280. election between contract and tort, 281. joinder of causes of action in the complaint, 381. in actions by or against executors, etc., 283, 283., alleging capacity to sue, 2S4. alleging consideration of contract, 384. alleging demand or request, 284. allegations of damage, 285, 386. requisites of complaint in particu- lar actions, 281-288. (See Complaint.) service of the complaint, 288. on part of the defendant, 288. time within which defendant must plead, 289. time within which to answer, 289. (See Answer.) demurrer to the complaint, 290. (See Demdkrer.) denials, 293. (See Denial, Answer.) tounterclaims, 297. (See Counterclaim, Answer.) r'ply, when required, 300. (See Reply.) supplemental pleadings, facts that may be alleged in, 301. PLEADING— CoTifo'rewa?. leave to serve a supplemental pleading, 303. effect of the supplemental plead- ing, 302. sham answers, 303. irrelevant answers, 303. remedy against sham and irrele- vant answers, 303. frivolous answers, 303. remedy against frivolous demur- rer, answer, or reply, 304. procedure of party serving plead- ing claimed to be frivolous,. 304. application for judgment on frivo- lous pleading, 304. striking out demurrer as frivolous, 304. amendment of pleading as of course, 305. changes that may be made by amendment, 305. answering or demurring to amend- ed pleading, 395. leave to amend pleadings, 805. (See Amendment.) in justices' courts, 397. requisites of complaint in a jus- tice's court, 307. joinder of causes of action in jus- tice's court, 307. answer in justice's court, 308. demurrer in justice's court, 308. form of pleadings in justice's court, 309. pleading account or instrument for payment of money, 310. variance between pleadings and proof, 310. amendment of pleadings in jus- tice's court, 310. furnishing copy pleadings for use of court on the trial, 876. PLEDGE: (See Bailment.) contracts of pledge, 165. property which is the subject of pledge, 165. of the goods of another, right of pledgee, 166. degree of care required of pledgee, 166. use of articles pledged. 166. liability of pledgee for loss of pledge, 166, 167. detention of pledge after tender of debt, 167. sale of pledge, 167. INDEX. 595 'Ph'EDG^—GonHn.ued. remedy of pledgee of unredeemed pledge, ItjT. action by pledgee against stranger ^ wrongfully taking, 167. right of factor or agent to pledge goods, 501. POLICE COURTS: include courts held by police jus- tices and the special sessions, 534. POLICE JUSTICE: jurisdiction of, 534. POLICEMAN: exemption from arrest in civil action, 358. POLICY: of insurance, defined, 195. of marine insurance, 197. of fire insurance, 203, 304, 207. of life insurance, 310. POLITICAL LIBERTY: defined, 9. POLLS: challenge to the polls, 378. POOL: grant of a pool of water, what passes by, 49. PORT RISK: defined, 201. POSSESSION: estates in possession, 67, 68. adverse possession, 87, 88. POSTPONEMENT: application and grounds for post- ponement of trial, 896, 397. arrest of party, 396. absence of counsel, 396. aflSdavits in support of motion for, 397. opposing, 397. remedy of defendant after denial of postponement, 397. costs on postponement, 398. POWER: defined, 78. classification of powers, 79. execution of powers, 79. of attorney, 79. revocation of power of attorney, 79, 80. POWER— Continued. execution of deed under power of attorney, 79. of sale in a mortgage, 64. of courts, 319. of corporations, 39, 43, 47. PRACTICE: defined, 311. action defined, 311. special proceeding defined, 31L classification of actions, 311. limitation of time for commence- ment of actions, 312-317. court defined, 317. courts of record and courts not of record, 317. general division of courts, 317. constituent parts of a court, 318. superior city courts, 318. old court of chancery, 318. source of power of judges, 319. powers of courts of record, 319. terms and vacations of courts, 319. (See Courts.) attorneys and counsellors, 330. retainer of attorneys, 330. service of papers on party or at- torney, 320. (See Attorney.) disqualification of judges, 333. judge defined, 324 exclusive and concurrent jurisdic- tion, 324. jurisdiction of subject matter, 324. jurisdiction of parties, 334. mode of commencing actions, 335. jurisdiction acquired by granting a provisional remedy, 325, 332. essential parts of a summons, 325. title of the summons, 325. subscription of the summons, 325. form of the summons, 326. notice served with the summons of amount of claim, 326. indorsement of summons in action for a penalty, etc., 327. notice of no personal claim, 337. names of parties in summons, 327. suing defendant under fictitious name, 328. remedy of defendant against mis- nomer, 338. when a summons is " issued," 329. who may serve a sumlnons, 329. limiting time of service of sum- mons, 339. personal service of a summons, 329. INDEX PRACTICE— Continued. service of summons on infants and lunatics, 339, 330. service of a summons on a city, 831. service of a summons on a manu- facturing corporation, 331. service by publication, 331, 332. fraudulent service, 333. proof of service of summons, 333, 333. appearance by defendant, 334. notice of appearance and demand of complaint, 334. appearance by infant or lunatic defendant, 334. commencement of actions before a justice of the peace, 335. requisites of a summons in a jus- tice's court, 335. service of a summons issued by a justice, 335. proof of service of such summons, 336. appearance in justice's court, 336. joinder of parties plaintiff in all courts. 336. defendants in actions in the su- preme court, 336. joinder of parties in the supreme court, 337, 338. joinder of parties generally, 337, 338. who may be plaintiff, 339, 340, 341. assignment of right of action, 340. right of foreign government to sue, 341. actions by the state, how prose- cuted, 341. actions by foreign corporations, 341. actions by joint stock companies, 342. persons authorized by statute to sue, 342. plaintiff in action to enforce a trust, 342. defendant's remedy where plaintiff lacks capacity to sue, 343. leave to sue, 343, 344. leave to defend, 344. suits by aliens, 344. suits-by foreign executors, 344. joinder of husband and wife, 345. joinder of defendants in actions on written instruments, 345. parties in partition, 345, 346. parties to action for foreclosure, 340. PRACTICE— Continued. defendants in actions against co- partnerships, 846. remedy in case of non-joiader of defendants, 347. abatement of actions, 347. substituting representative of de- ceased sole plaintiff, 347. when cause of action survives death of plaintiff, 348. effect of death of sole defendant, 346. survival of cause of action for a wrong, 348. 349. death of one of several plaintiffs, 349. death of one of several defendants, 350. death of plaintiff or defendant in replevin, 350. proceedings in ejectment on death of a party, 350. death of party after report, decis- ion or verdict, 350. effect of death or removal of pub- lic officer, 350. bringing in parties, 351. order or interpleader, 351. place of trial, 353, 353. change of place of trial, 353. consolidation of actions, 353. writ of ne exeat abolished, 354. substitute for writ of ne exeat, 354. orders of arrest, 354, 359. exemption from arrest, 358. orders of arrest in a justice's court, 359, 360. requisition to replevy, 361. injunctions temporary and final, 362. by whom an injunction may be granted, 363. papers upon which to apply for an injunction, 363, 364. service of an injunction order, 364. warrant of attachment, when and by whom granted, 366, 367. form and contents of warrant of attachment, 367. attachment of real property, 367. discharge of attachment, 368. receivers, 368, 369. trial defined, 370. order in which issues are tried, 370. issues of law, 370. issues of fact, 370. ' mode of trial of issues of law, 370. INDEX. 597 PRACTICE— Continued. jury trial as a matter of right, 371. jury trial, when a matter of dis- cretion, 373. conclusiveness of findings of fact by a i^iry, 373. waiver of a jury trial, 373. compulsory references, 373, 374. references by consent of parties, 374. application for an order of ref er- erence, 374. appointment of referee on stipu- lation, 375. number and qualification of refe- rees, 375. when an action may be brought to trial, 376. notice of trial, 376. note of issue, 376. furnishing papers to the court, 376. qualifications of trial jurors, 377. struck or special jury, 377. foreign jury, 378. challenge to the array, 378. challenge to the polls, 378. challenge for principal cause, 378, 379. challenge for favor, 379. peremptory challenges, 379. trial of challenges, 380. right to begin, 380. opening case and introducing tes- timony, 380. voluntary and compulsory non- suit, 300. motion for nonsuit, 380. when nonsuit should be granted, 381. •withdrawing juror, 381. charge to the jury, 381, 382. consultation of jury, 383, 383. directing verdict, 383. keeping jury together in case of disagreement, 383. general and special verdicts, 383. sealed verdicts, 383. delivery of verdict, 383. entry of verdict, 384. verdict subject to the opinion of the court, 384. double, treble or other increased damages, 384. oath of referee, 385, 386. powers of referee, 385. compelling attendance of witnesses on a reference, 386. decision upon trials by the court, 386. VRA.CT1CE— Continued. report of referee, 387. requests for findings of law or fact, 387. requisites of report or decision, 387, 388. exceptions, 388. no exception lies to verdict, 388. what rulings may be excepted to, 388, 389. time of taking exceptions, 389, 390. mode of taking exceptions, 389. obviating or curing exceptions, 390. mode of reviewing rulings of the court, 390. motion for new trials on the min- utes, 390. motion at general term for a new trial, 891. motion for new trial for surprise or newly discovered evidence, 391. when motion for new trial must be on a case, 391, 393. when motion for new trial may be made on affidavits, 393. affidavits of jurors to impeach their verdict, 393. contents of a case, 393. amendment of case or exceptions, 393. settlement of a case, 393. inquests, 393, 394. affidavit of merits, 394, 395. proceedings on default on the trial, 395. setting aside inquest or default, 396. motion for postponement of trial, 396, 897. grounds for postponement, 396. opposing postponement, 897. remedy where postponement is improperly denied, 897. terms upon granting postpone- ment, 398. costs, defined, 398. statute governing rights to costs, 398. final and interlocutory costs, 398. costs when title of land is in ques- tion, 398, 399. costs in replevin, 399. rule as to costs in actions of as- sault and battery, etc., 399. amount of costs recoverable, 399, 400. when both parties must pay costs, 400. 598 INDEX. FRACTION— Continued. when but one bill of costs can be recovered, 400, 401. costs in discretion of the court, 401, 407. •when neither party will be allow- ed costs, 403. when successful party may be charged with costs, 403. costs on demurrer, 403, , costs in divorce, 403. costs in action for dower, 403. costs in action for interpleader, 40.'. costs in mortgage cases, 403. costs in action for partition, 403. costs in actions against trustees, 404. costs in action for construction of a will, 404. motion costs, 404, 405. costs on amendment, 405. statutory allowance of costs, 405. ■ extra allowance of costs by the court, 405. costs of special proceedings, 406. costs against executor, 406. costs in actions against a munici- pal corporation, 406. taxation of costs, 406. notice of taxation, 406. taxation without notice, 407. review of taxation of costs, 407. collection of costs. 407. disbursements included in a bill of cnsts, 407, 408. affidavit of, attendance of wit- nesses, 408. costs on discontinuance, 408, 409. collection of costs against infant plaintiff, 409. final and interlocutory judgments, 409. general rule as to the relief which may be awarded. 410. damages in an action for equitable i-elief, 410. entry of judgment by the clerk without direction of the court, 410. entry of judgment on general ver- dict, 4il. entry of judgment on acceptance of offer of judgment, 411. entry of judgment on special ver- dict, 411. application for judgment on ver- dict subject to opmion of court, 411. FBACTIC^— Continued. entry of judgment on report of referee, 411, 413. entry of judgment by default, 413, 4.3. application to the court for judg- ment, 414, 415. assessment of damages by a sher- iff's jury, 415. taking judgment for amount in excess of counter-claim, 416. taking judgment for part of de- mand admitted, 416. motion by defendant for judgment upon the answer, 416. judgment by confession, 417. filing transcript of justice's judg- ment with county clerk, 417. judgment in action on alleged joint demand, 418. judgment against married woman, 418. judgment-roll, 418-419. judgment-book, 419. docket-book, 430. lien created by a docketed judg- ment, 431. what judgments may be docketed, 431 motion to set aside judgment for irregularity, 431. motion to vacate judgment as a matter of favor, 431. opening judgment in action com- menced by publication, 481. kinds of execution, 481. what judgments may be enforced by execution, 423. enforcement of judgments by pro- ceedings for contempt, 433. leave to issue execution, 483. execution on judgment recovered in justice court, 438. to what counties an execution may issue, 433. execution against the person, 423, 434. execution, how directed, 434. contents of an execution, 424, 435. indorsement by sheriff of time of receiving execution, 436. custody of goods seized under exe- cution, 436. levy on personal property, 436. agreements to waive exemption from execution, 436. proceedings supplementary to exe- cution, 436. when the creditor is entitled to supplementary proceedings, 427. INDEX. 599 PRACTICE— Continued. examination of debtor before re- turn of execution, 428. examination of debtor of judg- ment debtor, 438. before what judge supplementary proceedings may be instituted, 438. order may require debtor to ap- pear before a referee, 439. injunction order to accompany or- der for examination, 439. when judgment debtor may be brought before judge by war- rant, 429. proceedings on arrest of judg- ment debtor, 430. mode of conducting the examina- tion of debtor, 430. service of tlie order for examina- tion, 431. enforcement of orders made in supplementary proceedings,431. termination of supplementary pro- ceedings, 431. costs to creditor, 431. costs to party examined, 432. infant cannot submit to arbitra- tion, 433. oath of arbitrators, 433. form and execution of the award, 432. effect of a judgment entered on award of arbitrators, 433. notice of sale in foreclosure by ad- vertisement, 433. service of notice of foreclosure sale, 433. publication of notice of foreclos- ure sale, 434. state writs, 434. Tvho may serve a writ of Imbeas corpus, 434. allowance of a state writ, 434. writ of prohibition, 434. nature and office of a writ of man- damus, 436. when a writ of certiorari cannot issue, 485. xnode of correcting errors in legal proceedings, 436. review of rulings of a court or referee, 436. (See Appeal.) order defined, 454. motion defined, 454. enumerated motions, 454. non enumerated motions, 455. papers on which motions are based, 455. PRACTICE— Continued. affidavits, 455. 456! where and before whom a motion must be made, 45T. service of notice of motion, 458. renewing motions before other judges, 458. default on hearing of a motion, 458. motions based on irregiilarities, 459. withdrawal of notice of motion, 459. waiver of right to appeal from an. order, 439. PREMIUMS: payment of premiums for life in- surance, 314. when payable, 214. effect of delay in payment, 314. PRESCRIPTION: creation of corporations by pre- scription, 39. right of way by, 73, 74. title by prescription, 85. protection of title acquired by pre- scription, 86. PRESS: liberty of the press preserved by the constitution, 11. PRESUMPTIONS: defined and classified, 463. of law, 463. of fact, 464. how to determine whether a pre- sumption is one of law or fact, 464. examples of presumptions of law, 464. in favor of judicial proceedings, 464. as to joint liability on contract, 106. as to the time of performance of contracts, 115. in respect to the construction of contracts, 114. as to the alteration of contracts, 138. will not be allowed to increase liability of a surety, 143, 144. as to apportionment of profit and loss of copartnership, 150. on acceptance of a bill of ex- change, 181. in favor of negotiable paper, 186. of loss of vessels long overdue, 199. as to sanity of a testator, 318, 600 INDEX. PRESUMPTIONS— Continued. of jurisdiction of the supreme court, 323. of destruction of a will with in- tent to revoke it, 326, 337. of fraud, 246. as to criminal responsibility of a child, 514. of innocence of persons on trial for crime, 528. PRIMARY EVIDENCE: distinguished from secondary evi- dence, 468. PRINCIPAL: who are principals and who are accessories, 515. PRINCIPAL AND AGENT: (See Agency.) the rights and liabilities of princi- pals, 132-141. PRINCIPAL CAUSE: challenge for principal cause, 878. PRINCIPAL AND SURETY: relation of principal and surety, 142. guaranty defined, 143. capacity to contract as a surety, 143. consideration of the contract of suretyship, 143. consideration to support a guar- anty, 143. discharge of surety from liability, 143. effect of fraud upon a contract of suretyship, 143. responsibility of surety limited by the terms of his contract, 143. notice of acceptance of offer to become a surety, 144. delay in presenting demand against principal debtor, 144. agreement to extend time of pay- ment, 144. when the surety may recover from his principal, 145. contribution between sureties, 145, 146. terminating liability as surety, 146. conclusiveness of a judgment against principal, 146. surety of infant principal bound by his contract, 146. guaranty of collection, 146. guaranty of payment, 147. construction of guaranties, 147. PRINCIPAL AND 8URETY-Cfa»- intention of the parties, 147. letters of credit, 147. revocation of guaranties, 147. effect of a conveyance subject to a mortgage, 147. admissions of principal as evi- dence against surety, 475. PRIORITY: of unrecorded mortgage over sub- sequent judgment, 66. of purchase-money mortgage over prior judgment, 66. of firm over individual creditors, of partners, 153. of debts over legacies, 239. PRIVATE ACTS: distinguished from public acts, 3. must be pleaded, 7. PRIVATE CORPORATIONS: distinguished from public corpor- ations, 83. PRIVATE ROADS: power to take land for, 15. PRIVILEGE: of witnesses to refuse to answer^ 486. from arrest, 358. of attorneys in matters relating ta suits, 320, 331. PROBATE: power of executor before probate. 234. action for injuries to estate before probate, 334. where a will must be presented for probate, 334, 235. who should apply for probate of a will, 335. appeal from decision admitting a. will to probate, 447. PROCEEDINGS SUPPLEMENT- ARY: remedy of judgment creditor, 436— 433. (See Supplementary PnocBEDiNas.) PROFESSIONAL EMPLOYMENTr care and skill required in, 170, 171. PROFITS: share in profits as a test of copart- nership, 149, 150. INDEX. 601 TR0FIT8— Continued. presumption as to share of part- ners in, 150. loss of, as an element of damage, 139. PROHIBITED ACT: performance of, a misdemeanor, 517. PROHIBITION: writ of, a State writ, 434. nature of the writ, 434. will not prevent exercise of mere ministerial acts, 434. will not prevent enforcement of erroneous judgment, 435. PROMISE: consideration for a promise, 110. PROMISSORY NOTE: defined, 180- of a married woman, 189. given by an executor, 183. given by an agent, liability there- on. 134,183. no liability upon forged signa- ture, 183. accommodation note made by a partner, 183. payable to order of the maker or fictitious person, 183. effect of indorsement of note pay- able to bearer, 184. chattel note not negotiable, 184. limiting payment to particular fund, 184. payable on happening,of , a contin- gency, 184. payable after dea effect of failure to record a deed,. 91.. alteration of deeds, 91, 93. boundaries, 93. who may create estate in fee, 93. covenants defined. 93. covenants running with the land, 93. implied covenants, 93. covenant of seizin, 94. covenant for quiet enjoyment, 94. covenant of warranty, 94. leases, 94. 95. interesse termini, 95. defeasance, 95. leave to convey land, when neces- sary, 95. redemption of land sold under ex- ecution, 96. eminent domain, 97. abstracts of title, 97. right to original deeds on convey- ance cf lands 93. expenses of conveyance and searching title, 98. who may devise real property, 317. sale of real property of decedent to pay debts. 340. duties of guardian in respect to, 30. unauthorized purchase, by guar- dian, 30. power of corporations to take, hold and transmit, 41. disposition of real property of cor- porations on dissolution, 45. _ place of trial of actions affecting, 352. RE ARGUMENT: when ordered on appeal, 833. REBUTTER: under old system of pleading, 264. RECEIPT: in full, on part payment, 136. distinction between a release and a receipt, 127. demand of a receipt at time of making a tender, 124. as evidence of payment, 479. INDEX. 605 RECEIVER: alleging capacity to sue in action by, 284. remedy of receiver when sued without leave of court, 344. appointment of, before judgment, 368. notice of application for the ap- pointment of, 369. appointment of, after judgment, 369. EECORD: effect of a failure to record a deed, 91. search of records preliminary to purchase of land, 97. courts of renord and courts not of record, 817. presumed to have been correctly made, 464. oral evidence cannot be substi- tuted for, 469. proving, by producing an exam- ined copy, 470. offense of recording unacknowl- edged deed, 517. BEDEMPTION: of lands sold under execution, 98. of a pledge, 167. liEPERENCE: when the court may order a com- pulsory reference, 373. compulsory reference of less than all the issues, 373. compulsory reference other than of the issues, 378. limit of the right of parties to refer Issues by consent, 374. "long account," such as will au- thorize a reference, 374. of an action for tort, 374. when to apply for an order of ref- erence, 374. the motion papers, 375. appointment of a referee on con- sent of parties, 375. number of referees appointed, 375. qualifications of a referee, 375. referee's oath, 385. powers of a referee on the trial, 385. ■compelling attendance of wit- nesses, 386 referee cannot be sworn as a wit- ness, 386. Teferee cannot delegate his author- ity, 386. proceedings where there are sev- eral referees, 386. REFERENCE— Co?i«iwe(i. time limited for report on matters referred, 387. remedy for failure to report within the time limited, 387. submission of request for findings of law or fact, 387. contents of the referee's report, 387, 388. when findings of fact are not necessary, 388. exceptions to rulings on the trial, 389. costs in discretion of the referee, 401. fees of referees chargeable as a disbursement, 408. reference to asstss damages on de- fault of answer, 413. entry of judgment on report of referee, 411, 413. in proceedings supplementary to execution, 439. enforcement of orders made by referee, 431. examination of judgment debtor before referee, 430. review of judgment entered upon report of referee, 439. . REFORMATION: of contracts, 353. RE-INSURANCE: nature of the contract, 198. REJOINDER: under the old system of pleading, 264. RELATIONSHIP: disqualification of .judge on ac- tion of, 323. RELATIVES: homicide in defense of, 10, 514. RELATIVE RIGHTS: distinquished from absolute rights, 9. RELEASE: of an inchoate right of dower, 55. by one joint tenant of his interest, 71, 73. of one of several joint debtors, 127. effect of a release under seal, 137. distinction between a release and a receipt, 127. as a defense to acceptor of a bill of exchange, 190. 606 INDEX. KBLEVANCY: of evidence, 463. need not appear when the evi- dence is offered, 465. REMOTE DAMAGE: defined, 139. REMOVAL: of judges from office, 319. of attorneys from office. 320. RENT: defined, 75. receipt of rent as a ratification of a lease by a minor, 35. the measure of damages for use and occupation, 75. RENT-CHARGE: defined, 75. how created, 75. right to enter and distrain, 75. RENT-SEOK: defined, 75. RENUNCITAION: of the office of excutor, 234. REPAIR: of "ways, by grantee of right, 74. agreements to repair subsequent to lease, 110. of insured property not a prohib- ited alteration, 205. REPLEVIN: by carrier, in case delivery is procured by fraud, 177. pleading. title to property in re- plevin, 275. alleging wrongful taking, 276. alleging wrongful detention, 276. limitation of action, 315. cause of action does not abate on death of party. S^iO. changing place of action in county court, 353. requisition to replevy, by whom issued, 361. at what stage of the action the requisition may issue, 361. requisition not necessary to main- tenance of action, 361. jury trial of the issues of fact a maUer of right, 371. right of plaintiff to costs in, 399. costs recoverable in replevin, 399. when each party entitled to cost's, 400. REPLICATION: under the old system of pleadin?. 364. REPLY: (See Pleading.) the second pleading on the part of the plaintiff, 264. time within which the reply must be served, 299. when necessary, 300. what the plaintiff may plead ia reply, 300. effect of omission to reply, 300, 301. ^ demurrer to the reply, 301. allegations of new matter in^ deemed controverted, 301. when ordered by the court, 301. setting forth two or more distinct avoidances of same matter, 301. supplemental reply, 301. remedy ^f defendant in case reply is frivolous, 304. REPORT: (See Reference.) of referee, 387. within what time to be filed or de- livered, 487. remedy for failure to file report in time limited, 387. of referee on decision of demurrer, 387. upon the trial of all the issues, 388. when findings of fact not re- quired, 388. entry of judgment on the report, 411, 412. REPORTS: as evidence of the common law, 4» REPUBLICATION: of wills, 239. REPUTATION: injuries to, by slander or libel, 10.. (See Slander, Libel.) REQUEST: pleading demand or request, 284. for findings upon questions of law or fact, 387. REQUISITION: (See Replevin.) to replevy, 361. by whom issued, 361. at what stage of the action issued, 361. INDEX. 607 REQUISITION— Continued. not necessary to maintain re- plevin, 361, 363. EESCISSION: of contracts on account of in- fancy, 24, 26. of contract for sale of land, 251. EESERVATION: of a right of way, 73. RESTITUTIOK: undertaking to secure, on judg- ment by default, 414. on reversal of judgment on ap- peal, 454. RESULTING TRUSTS: prior to and under the Revised Statutes, 77. RETAINER: of attorney need not he in wiiting, 310. RETURN: of pleadings not folioed, 265. of an execution, 425. payment of fee of justice for mak- ing return on appeal, 449. on appeal to county court, 451. REVERSION: estates in reversion, 68. REVIEW: of rulings of the court upon the trial, 390, 436. of taxation of costs, 407. of judgments and orders in civil actions, 436-454. of judgments in criminal actions, 529, 530. (See Appeal.) REVIVOR: of corporations after dissolution, 46. of actions, 347-351. (See Abatement.) "i REVOCATION: of a povper of attorney, 79. of an agency, 140. of a contract of suretyship, 146. of a guaranty, 147. of a gratuitous bailment, 161. of a will, 324, 235, 227. of letters of administration, 339. REWARD: restoration of property before notice of offer, 113. RIGHT OF WAY: defined, 73. how acquired, 73. by prescription, 74. from necessity, 74. repair by grantee, 74. RIOT: number of persons necessary to create a riot, 521. RIVER: right to soil under rivers, 76. ROBBERY: gratuitous bailee not liable for loss by robbery, 161. liability of pledgee of goods for loss by robbery, 166. carrier liable for goods lost by robbery, 173. carrier not liable for robbery from person of passenger, 179. marine policy covers loss by rob- bery, 198, 200. pickpocket using force as a means of escape not guilty of, 518. force used in taking property from the person of another, 518. ROMAN LAW: distinguished from common law, 5. RULES: right of carrier of passengers to prescribe rules, 176. SAILORS: exemption from arrest, 358. SALE: restraint upon alienation of land, 64. power of sale in mortgages, 64. defined, 117. test to determine whether a con- tract is a sale, 117. distinction between sale and bail- ment, 117. payment of purchase price as a requisite, 118. of property not in existence, 118. conditional sales, 119. title of purchaser from fraudulent vendee, 119. 608 INDEX SALE — Continued. purchase by an insolvent vendor, 119. of stolen property, 130. ■warranty on sale of chattels, 130. warranty after sale, 130. caveat emptor, 120, 131. implied warranty of the thing sold, 131. evidence of a warranty not em- braced in contract of sale, 131. stoppage in transitu, 121, 133. when void under statute of frauds, 122. representations of agent making a sale, 139. by one partner of entire assets of firm, 15a. of goods pledged, 167. of lands devised by will, efEect of, 327, 228. of decedent's land in payment of debts, 240. SANITY: presumption of sanity of a testa- tor, 218. SATISFACTION: of mortgages, 67. SEAL: corporate seal necessary to bind corporation by a specialty, 43. mode of affixing coporate seal, 44. defined, 90. raises a presumption of consider- ation, 109. SEALED INSTRUMENTS: may be impeached for want of consideration, 109. effect of a release under seal in extinguishing a debt, 137. contract under seal, discharge of, 128. authority of agent to execute, how conferred. 133. execution of, by agent, 185. ratification of unauthorized execu- tion of , 136. limitation of actions on, 315. SEALED VERDICT: defined, 383. dissent of juror from, 383. SEARCH: of title to lands, extent of, 97, 98. person to pay for searches, 98. SEARCH WARRANT: defined, 531. SEA-WORTHINESS: warranty of sea- worthiness of in- sured vessel, 203. must be alleged and proved in action upon a marine policy, 208. presumptive evidence of unsea- worthiness, 203. SECONDARY EVIDENCE: (See Evidence.) distinguished from primary evi- dence, 468. rule excluding, 469. SECRET PARTNERS: who are, 149. responsibility of, 150. (See Partnekships.) SECURITY: required on appointment of guar- dian of an infant, 31. discharge of surety by surrender of securities by creditor, 148. relief in equity in case of lost se- curities, 249. for costs to be given by non-resi- dent plaintiff, 344. on appeal to the court of appeals, 443. to stay execution of a judgment, 443, 444. to perfect appeal from an inferior to supreme court, 445. on appeal from a justice's court, 450. crime committed by officer acting without giving, 515. to keep the peace, 524. SEDUCTION: damages not measured by actual value of services, 29. costs in action for, 399. cause of action for seduction not assignable, 340. under promise of marriage, evi- dence to convict for, 519. SEISIN: nature of contract by a covenant of seisin, 94. SELF-DEFENSE: as a justification for homicide, 10, 514. right to bear arms for purpose of self-defense, 16. SEPARATION: from bed and board, 22. INDEX. 609 SEPARATION— Continued. distinguished from an absolute divorce, 23. indorsement of summons in action for, 331: ■when action for, maintainable, 23. of causes of action in a complaint, 266. of defenses and counterclaims in an answer, 394. of distinct avoidances in reply, 301. SERVANT: (See Master and Servant.) liability of m^ter for acts of his servant, 33, 163, 171, 175. SERVICE: of papers upon the attorney in- stead of the party, 320. of a summons, 839. of the complaint, 388. of the answer, 289. of the reply, 399. of an injunction order, 364. of a notice of trial, 376. of au affidavit of merits, 395. of order for examination of judg- ment debtor, 431. of notice of foreclosure by adver- tisement, 433. of a writ of habeas corpus, 434. of a notice of appeal, 437, 449. of a notice of motion, 458. of a subpoena, 480. SERVICES: right to services of an infant, 37- 39. implied contract as to price, 33. part performance of entire con- tract for. 83. remedy of contractor for illegal termination of contract, 33. SESSIONS: court of sessions, by whom held, 523. transfer of cause to oyer and ter- miner, 5?8. disqualification of judge or jus- tice, 533, 534. court of special sessions, by whom held, 534. pleas in courts of special sessions, 530. jury in courts of special sessions, ■ 530. jurors and witnesses not entitled to fees, 580. 39 SESSIONS— Continued. appeals from courts of special ses- sions, 530. SETTLEMENT: of a case, 893. SEVERALTY: estate in severalty defined, 69. SHAM: answer, defined, 303. striking out sham answer, 303. counterclaim cannot be struck out as sham, 303. answer containing general denial cannot be struck out, 303. SHBLLY'S CASE: rule in, 68. SHERIFF: has an insurable interest in prop- erty levied on, 307. limitation of actions against, 815, 316. service of a summons on a sheriff, 339. certificate of service of a sum- mons, 332, 333. can arrest only in his county, 359. fees of. taxable as disbursements. 408. assessment of damages by a sher- iff's jury, 415. duty of sheriff on receipt of ex- ecution, 436. care required in custody of goods seized, 436. levy by, 436. SICKNESS- of innkeeper no excuse for loss of goods of guest, 171. of a material witness as a ground for postponement, 396. SKILL: required of an agent, 139. liability of artisan for failure to exercise, 162. required of a workman or artisan, 169, 170. required of professional men, 171. required of a quack. 171. required of carriers of passengers, selection and management of vehicle, 176. SLANDER: a civil injury for which law gives compensation in damages, 10. 610 INDEX. SLANDER— Continued. distinguished from libel, 11. ■words giving a right of action for, action by married woman for, 20. statement of extrinsic facts in ac- tion for, 274. defenses to the action, 274, 275. pleading justification, 275. pleading damage in action for, 286. limitation of actions for, 316. • cause of action for, not assignable, a40. arrest in actions for, 357. costs in action for, 399. SPECIAL: agent, 133. damage, 286. estate tail 52. jury, 877. partner, 148. powers, 79. proceedings, 311, 406, 428. sessions, 524, 530. terms, 323. verdict, 383, 411, 529. SPECIALTY: distinguished from a simple con- tract, 106. SPECIFIC DENIAL: distinguished from a general de- nial, 293. SPECIFIC PERFORMANCE: jurisdiction in equity to decree, 253. of gratuitous promise, 253. rests in discretion of the court, 254. when not decreed, 254. evidence to entitle party to, 254, 257, 258. of contracts relating to personal property, 255. of contracts relating to land, 256. of agreements within the statute of frauds. 256, 257. of contracts partly executed, 257. vendee not compelled to accept doubtful title, 258. SPEECH:^ liberty of speech preserved by con- stitution, 11. SPRING: diversion of water flowing from, may be enjoined, 76. SPRING— Continued. intercepting of water flowing to a spring, 501. STATE: cannot deny equal protection of its laws, 16. cannot abridge privileges of citi- zens of United States, 16. has the absolute right of property in land, 80. actions brought in name of the people by attorney general, 341. criminal liability for cutting tim- ber on state lands, 522. shortest term of imprisonment in a state prison, 522. writs, 434. STATUTE: defined, 2. constitutionality of statutes, 3. when statutes take efEect, 4. interpretation, 5, 6, 47. pleading statutes, 7, 269, 270. requiring support of parent or child, 27. STATUTE OF FRAUDS: leases for longer term than one year must be in writing, 95. when contract for sale of goods is void under, 122. does not apply to contracts for work, labor and materials, 122. specific performance of agree- ments within, 256. not necessary to allege that a con- tract was in writing, 269. STAT: security to stay execution pending appeal, 443, 450. of proceedings under an order pending appeal, 448. STOLEN PROPERTY: thief cannot transfer title to, 120. STOPPAGE IN TRANSITU: nature of the right, 121. when the right terminates, 121. surety cannot exercise the right, 122. indorsement of bill of lading, eS- eot of, 122. STRUCK JURY: when summoned, 377. mode of selecting, 377. SUBORNATION: of perjury, what constitutes, 516. INDEX. 611 SUBMISSION: of controversy to the court on ad- mitted facts, 325. of controversy to arbitrators, 433. SUBPfENA: defined, 480. duces tecum, 480. answers for only one sitting of the court, 480. how served, 480. by whom served, 481. liability for refusal to obey, 481. compelling production of will for probate by, 235. ;SUBSCRIBING WITNESS: when necessary to prove written instrument by, 490. proof of handwriting of, 490. of a will or deed competent to tes- tify as to mental capacity, 496. SUBSCRIPTION: of wills, 317, 330, 331. of pleadings, 367. of a summons, 335, 335. of an award by arbitrators, 433. of contract within the statute of frauds, 133. SUBSTANTIAL RIGHT: , meaning of the phrase, 440. SUBSTITUTION: of parties, 347. SUCCESSION: title by, 104. SUFFERANCE: tenancy at sufferance defined, 63 SUICIDE: defined, 517. effect on policy of insurance, 313. SUMMONS: was used in actions against corpo- rations only before the code, 335. commencement of actions by, 335. essential parts of, 325. title to, 335. subscription, 335. form of, 336. notice to accompany, 336. indorsement of, in action for a penalty, 337. in matrimonial actions, 337. names of parlies in, 337, 338. when " issued," 339. SUMMONS— Continued. by whom served, 339. limiting time 9f service, 339. personal service generally, 339. service upon an infant, 339, 330. service upon an incompetent per- son, 339, 330. service upon lunatic not judicially declared incompetent, 330. service in action against a city, 331. service in action against domestic corporation, 331. service by publication, 331. time of commencement of publi- cation. 331. when service by publication is complete, 333. allowance of provisional remedy does not dispense with, 333. fraudulent service, 333. remedy against defective irregu- lar or fraudulent service, 333. proof of personal service, 333, 333. proof or publication of the sum- mons, 333. requisite of a summons in a just- ice's court, 335. when a summons issued by a just- ice must be returnable, 335. service of a summons issued by a justice, 335. proof of service, 336. SUNDAY: when bill check or note falling due on Sunday is payable, 193. arrest on Sunday under criminal process, 535. SUPERIOR CITY COURTS: enumerated, 316. SUPPLEMENTARY PLEADINGS: facts that may be set up by, 301. leave to serve, 303. as a substitute for the > original pleading, 303. demurrer to, for insufficiency, 303. provisional remedies not affected by. 303. SUPPLEMENTARY INGS: PROCEED- remedies given by the Code, 436. requisite of right to resort to the remedies, 437. absolute right to examination of judgment debtor, 437. 612 INDEX. SUPPLEMENTAEY PROCEED- INGS— 09?i 104. INDEX. 615 TREASON— Continued. punishment for treason is death, 515. I TRIAL: defined, 370. argument of demui-rer is a trial, 370. of issues of law before issues of fact, 370. of issues of law must be by court or referee, 370. t constitutional guarantee of right to jury trial, 14, 371. actioQS triable by jury, 371. jury trial of equity action not a matter of rigiit, 371. when a jury trial is discretionary, 372. of remaining issues after submis- sion to jury of specific ques- tions, 373. of immaterial issues not required, 372. waiver of jury trial, 373, 372. notice of trial, 376. pleadings for use of court on the trial, 377. jury, 37'7. challenging the jury, 378. opening the case, and introduc- tion of evidence, 380. nonsuits, 380. charging jury, 331. consultation of jury and verdict, 383-384. directing a verdict, 383, 384. increased damages, 384. reference of the issues, 873-376. by a refee/e, 385. oath of referee, 385. powers of referee on the trial, 385. compelling attendance of wit- nesses before referee, 886. report of referee or decision of the court, 886, 387, 888. taking exceptions, 388-390. motions for new trial, 390, 391, 892. inquests, 393-386. defaults on the trial, 395. postponement of trial, 396-398. construction of pleadings on the trial, 376. amendment of pleadings on the trial, 306, 807. appeal to and new trial in county court, 4i9-4'i3. place of trial, 353. change of place of trial to proper county, 353, 353. TRIAL — Continued. change of place of trial for con- venience of witnesses, 353. change of place of trial of an ac- tion brought in county court, 353. preparation for trial of criminal action, 538. challenges in criminal actions, 528. verdict in criminal action, 528, 539. ( TROVER: lies against bailee for acts incon- sistent with bailment, 169. pleading demand in action of trover, 284. denial of value of property con- verted not required, 395. transfer of title to defendant on judgment for plaintiff, 104. TRUSTS: effect of the Revised Statutes on law of trusts, 77. resulting trusts prior to Revised Statutes, 77. resulting trusts under the Revised Statutes, 77. express trusts, for what purposes authorized, 78. creation of trusts, 78. powers in trust, 79. jurisdiction in equity in cases of, 245. right to maintain action to enforce a trust, 342. conveyance of trust estate by trus- tees, 73. TRUSTEES : conveyance of trust estate by, 73. counterclaim in action by trustee, 298. action by trustee of an express trust, 339. can be arrested only for personal acts, 859. costs in actions against trustees, 408, 404. UNCERTAINTY: in pleading, remedy against, 370. in wills, 230. UNDERTAKING: to perfect appeal to court of ap- peals, 443. to stay execution on appeal, 443, 444. 616 INDEX. UNDERTAKING— Continued. to stay proceedings on a judgment pending appeal, 444. to stay proceedings on a judgment directing a sale, 444. filing undertakings given on ap- peal, 445. to perfect appeal to supreme court from inferior court, 445. on appeal to county court, 450. on granting order of arrest in jus- tice's court, 360. UNDUE INFLUENCE: in obtaining execution of a 'will, 319. USE: of articles pledged, 166. of chattel for a purpose unauthor- ized by bailment, 168, 169. of deposit by depositary, 159. USE AND OCCUPATION: when the action lies, 75, 76., effect of agreement to pay rent, 75. does not lie against party to con- tract of purchase, 75, 76. USES AND TRUSTS: law of, prior to and under Re- vised Statutes, 77. USURY: defense may be interposed against bona fide holder of note, 188. defense may be set up by amend- ment of answer, 807. law of place as affecting question of usury, 116, 117. usurious agreement to extend time of payment discharges surety, 145. taking usury is a misdemeanor, 530. VACATING: injunction order, 365. judgments. 431. ex parte order, 457. YACATIONS: of court, 319. VALUE: allegations of value in pleading, 273. allegation of, not admitted by failure to deny, 295. VARIANCE: between pleadings and proof, 310, VERDICT: consultation of jury upon verdict. 382. directing a verdict, 383, 384. must not be decided upon by lot, 383. general and special verdicts dis- tinguished, 388. sealed verdicts, 883. delivery of the verdict, 383. entry of the verdict, 384. subject to opinion of the court, 384, 411. must be for single damages only, 484. exception cannot be taken to the verdict, 388. finding upon specific questions of fact, 373. rendering judgment on general verdict, 411. judgmentupon special verdict,411. judgment upon verdict subject to opinion of court, 411. directing a verdict in a criminal case, 529. receipt of verdict in absence of defendant, 539. special verdict in criminal action, 529. VERIFICATION: of pleadings, when required, 377. effect of serving unverified or im- perfectly verified complaint, 277. omitting verification of answer, 277, 278. of pleadings on part of a corpora- tion, 278. of pleadings on part of the people, 278. by agent or attorney, 278, 279. form of verification, 279. may be confined to part of a pleading; 279. excuse from verifying a part of a pleading, 279. where the party is an infant, 279. by guardian ad litem, 279. remedy for defective verification, 289. of pleadings in justice's court, 309, 310. "WAGES: presumption as to amount of, 32. recovery for part performance of entire contract, 32. recovery of, upon improper dis- missal, 33, 85. INDEX. 6ir WAIVER: of objection to unfolioed plead- ing, 365. of objections by omission to demur, 292, 293. of want of jurisdiction of subject matter, 393, 324, 538. of exemption from arrest, 358. of riglit to jury trial, 372. of exemption of property from execution, 426. WAR: effect of war upon the limitation of actions, 814. WARD: (See Guardian and Ward.) WARRANT: in proceedings supplementary to execution, 429. of attachment, 366-368. WARRANTY: right of action upon covenant of warranty in deed, 94. classification of contracts of, 120. of soundness of a horse, 120, 180, 134. made after sale is complete, 130. implied warranty of quality, 120. that goods are merchantable, 121. implied warranty of title, 131. parol evidence of a warranty, 131. measure of damages on breach of warranty, 130, 131. l)y agent, 134. joinder of defendants in action on warranty by partner, 153. implied in contract of indorser, 186. implied 'warranty of seaworthi- ness of a vessel, 208. representations of insured deemed warranties, 204, 210. of good health of applicant for in- surance, 211. no recovery for breach of, in ac- tion for fraud, 287. complaint on warranty or for fraud distinguished, 288. WASTE: by mortgagor may be enjoined, 66 injunction to restrain waste, 259, 364. place of trial of action for, 353. action for waste triable by a jury, 371. WATER: grant of a pool of water, what passes by, 49. rights in flowing water, 76, 100. diversion of water flowing from a spring, 76. diversion of water flowing to a spring, 501. insurer liable for injuries from water used at fires, 307. WAYS: right of way defined, 73. acquisition of a right of way, 78. from necessity, 74. repair of ways, 74. WIFE: (See Husband and Wife.) WIDOW: right of dower of widow, 54-59. jointure, 57. widows quarantine, 59. WINDOW: right to darken window, 76. WILL: defined, 316. codicil, 216. age at which a person may make a valid will, 35, 216. who may dispose of property by will, 217. testamentary capacity, 317. by deaf, dumb or blind persons, 317. subscribing wills, 217, 220, 321. by lunatic during lucid interval, 318. presumption as to sanity of testa- tor, 218. validity of a will by a monoman- iac, 218. validity of a will made by an habi- tual drunkard, 218. extreme old age does not incapaci tate testator, 318. determining capacity by terms of the will, 319. executed under duress, 219. fraud in obtaining execution of will, 319. undue influence, 319. influence inspired by kindness and affection, 319. by married women, 220 holograph defined, 230' publication of wills 221. 282* stating residence of witnesses, 231. 618 INDEX. WILL — Continued. attestation by witnesses to a will, 221, 223. devisee or legatee may witness a will, 233. effect of attestation by legatee, 223. need not be drawn up in any set form of words, 223. may be written in any language, 223. materials used in drawing a will, 223, 224. effect of pencil interlineations, 234. Interest of person drawing a will, 224. execution of a codicil, 224. revocation of wills, 224. no man can die with two testa- ments. 324. effect of subsequent will on prior will, 225. devise of same land to two per- sons, 225. destruction of second will does not revive the first, 225. formalities necessary to a revoca- tion, 225. burning, tearing, canceling, oblit- erating or destroying, 226. establishing lost or destroyed will, 236. presumption from inability to find a will, 226. marriage as a revocation of prior will, 337. post testamentary children, 237. alienation of land by testator after making will, 227, 228. republication of wills, 229. construction of wills, 329, 353. will and codicil construed to- gether, 329. repugnant provisions in wills, 229. devise of testator's "estate," 230. ■use of the word " goods," with- out restriction, 330. of personal property speaks from death of testator, 230. devise of fee simple, 230. devise to "heirs" of a person liv- ing at death of testator, 230. void for uncertainty, 230. reference to other paper in, 231. evidence to identify devisee, 331. devise to grandchildren, 231. " issue " includes children and grandchildren, 231. designating devisee by nick-name, 331. WILL — Gon tinned. husband cannot bar dower by will, 58. equitable relief in case of mistake- in, 352. costs of action to construe a will, 404. V appeal from decison admitting a will to probate, 447. mutual wills, 505. executors of wills, 282. application for probate of wills, when made, 234, 235. by whom application for probate should be made, 235. compelling production of will be- fore surrogate, 335. disposition of assets not be- queathed by a will, 240. WITNESS: subscribing witness, 91. when subscribing witness must be called, 490. proof when subscribing witness- cannot be produced, 490 subscribing witness may testify as to sanity of testator, 496. must be at least two witnesses to a will, 220. execution of will in presence of witnesses thereto, 231. to a will should state their resi- dence, 331. to a will need not subscribe in presence of each other, 333. must subscribe at end of will, 332. to will may make his mark, 233. request of testitor that witnesses sign as such, 222. devisee or legatee may witness a will, 233. provisions of code as to compe- tency, apply to surrogate's, court, 333. change of place of trial for con- venience of, 353. exemption of witnesses from ar- rest, 358, 499. compelling attendance of, before referee, 386. sickness of witness as a ground for postponement, 396. postponement on ground of ab- sence of, 397. taxing witness' fees as costs, 408. evidence to impeach character of a witness, relevant, 465. subpoena to secure attendance of witness, 480. service of subpoena on witness, 481. INDEX. 619 WITNESS— Continued. , liability of witness refusing to obey subpoena, 481. not entitled to fees in criminal cases, 481. procuring attendance of witness confined in prison, 481. taking testimony upon a commis- sion, 481. incompetent witnesses at common law, 482. parties are competent witnesses, 483. religious belief of witness, 483. children as witnesses, 483. convicts as witnesses, 483, 483. objections to competency, when taken, 483. oath of witness, 483. examination of witnesses, 484. leading questions, 484. refreshing recollection of witness, 485. impeachment of witnesses, 485, 486. sustaining character of witness, 486. corioboration of testimony of, 486. WITNESS— Continued. privilege of witnesses to refuse to answer, 486, 487. examination before trial, 494. person charged with crime a competent witness for himself, 498. competency of husband and wife as witnesses, 498. acceptance of money for absence from trial a felony, 516. attempting to procure false testi- mony, 516. perjury, 516. WOMAN: liability to arrest, 358, 360. WRIT: of inquiry, 413. state writs, 434. of habeas corpus, 13, 434. of prohibition, 484. of assessment of damages, 434, of review, 434. of mandamus, 435. of certiorari, 485. allowance of a state writ, 434. m