\ f1?S (Sornrll Caui &rl)nnl Sjibrary 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/cu31924018915367 AMERICAlSr COMMEECIAL LA^ RELATING TO EVERY KIND OF BUSINESS: WITH FULL INSTRUCTIONS AND PRACTICAL FORMS, ADAPTED TO. ALL THE STATES OF THE UNION. BY FRANKLIN" QHAMBERLIN, OP THE UNITED STATES BAR. Partforir: PUBLISHED BY O. D. CASE & CO. 1869. Entered according toAct of Congress, in the year 1869, By franklin CHAMBERLIN, In the Clerk's Office of the District Court of the United States for the District of Connecticut. CASE, LOCKWOOD & BRAIN ARI), nARTPOUD, OONR. E loc t rot7ped by LOOKWOOD & MANDEYILLE, niRTFORs, aoxv. TO THE HON. REUBEN A. CHAPMAN, CHIEF JUSTICE OF MASSACHUSETTS, A learned. La-wyer, a safe and prudent Counselor, a courteous, patient, and innpartial Judge; who adds another to the list of honored lives -which have illustrated and adorned Anner- iean Jurisprudence in the place which he fills so honorably to hinnself and so fortunately for his State; and proves that a man may be a learned and laborious La^vyer, an excellent Judge, and at the sanae tinne and always a sincere and faithful Christian and a courteous Gentlennan : this effort of his former Partner and Friend is most respectfully dedicated by THE AUTHOR. PKEFACE, The learned and elegant author of the Commentaries on the Laws of England, speaking from an English stand point, malses, in his first lecture, the following suggestions : " A competent knowledge of the laws of the society in which we live, is the proper accomplish- ment of every gentleman and scholar. As every person is inter- ested in the preservation of the laws of his country, it is incumbent upon every man to be acquainted, at least, with those laws witli which he is immediately concerned. Gentlemen of fortune are ambitious to represent their country in parliament. When tliey occupy that station, they become the guardians of the Englisli constitution, and the makers, repealers, and interpreters of the English law. " It must appear unbecoming in a member of the legislature to vote for a new law while ignorant of the old ; to attempt to interpret a law while ignorant of the text on which he comments." "What Blackstone here says of English gentlemen, should apply, in a measure and with proper modification, to every man in our country ; and I think we may properly say that a successful result of our American experiment of government by universal suffrage, demands that the governing citizen of the State shall be educated, to a reason- able degree, in the constitution and laws of his country. Every such citizen is liable at any time, upon the call of his fel- lows, to be required to assist in making the laws by which he and his countrymen are to be governed ; and while it cannot at present be expected that all will acquire such knowledge of the principles of legislation, as will, without special experience, fit them to legislate wisely, it may perhaps reasonably be hoped that the business men of VI PEEPACE. our country, upon whom the privilege of making our laws mainly rests, will gladly avail themselves of any means o{ practical mforma- tion Which can be brought to them for daily use, at their farm-houses, shops, factories, and counting-rooms, and by which their intelligence and self-reliance will be increased from year to year. ' A popular book of American Commercial Law, if generally used, would clearly be such a means of information. The laws of business are simple and easily understood, and when exprpssed in common language, with familiar illustrations, can be readily comprehended by any man who has a willing mind and ordi- nary capacity. It is the purpose of this book to present those legal principles which lie at the foundation of all Commercial Law ; and those com- mon rules and forms in general and constant use in the ordinary transactions of business life iij such language, and with such illus- trations. The old forms of conveyance, contract, &c., and many of those still in use, are quite repetitious, involved, and technical ; and it is frequently the case that an intelligent party to a contract first gets a true idea of its meaning, when he consults counsel in making prepar- ation to sue or defend upon an issue which never would have arisen if, when he signed his name, he had clearly known what he was agreeing to. It has therefore been thought desirable that the body of the work should be supplemented by appropriate forms. Every form in the book has been carefully prepared by the author personally, with a view to brevity, clearness, and precision, and it is hoped they will commend themselves to busy and earnest men, in whose interest they have been prepared. In human life, every man should be so intelligent in the anatomy of his body and the laws of life and health, as to be able (so far as his appetites and passions are under the control of his discretion and judgment) to conduct himself in his own care and management, when in health, with reasonable skill and prudence, without the aid of a physician ; and so in business life, every man should be so fa- PREFACE. vii miliar witli the general forms, customs and laws of trade, as to be able to manage, without the aid of a lawyer, the common, normal,s.nA or- dinary transactions of business life ; and he who is so far educated, will, more surely than an ignorant man, — when his body is disordei-ed by disease, or his business deranged by misfortunes, mistakes, improv- idence, or the dishonesty of his fellows, — take advice. Almost every business man is interested, either as debtor or cred- itor, in the general bankrupt law of the United States ; and the num- ber is increasing from year to year who need information as to the laws regulating patents, and the rules and regulations prepared and issued by the Department at Washington, for the instruction of per- sons having occasion to do business with the Patent Office : in the subject of trade-marks, and the statutes of the United States by which they are secured to the exclusive use of those who have devised and appropriated them as distinctive marks of their wares: in the homestead and other exemption laws of the different States of the Union, which not unfrequently seriously modify the ability of a cred- itor to collect what is due him, and should therefore be in the mind of a business man in the regulation of his credits : in the statutes of the several States which have passed laws affecting the rights of mar- ried women ; in most cases removing their property from the reach of creditors of the husband : in the United States Pension Laws, and the forms and instructions issued by that department, and which will enable any man or woman to obtain, and from year to year collect, a pension without expense for counsel or agents : in the general forms of insurance policies, and the tables of mortality which govern life insurance companies in establishing their rates of- premium, and by the aid of which any person can ascertain, at any period of his life, how many years the average duration of human life warrants him in expecting to live. These important materials of information have been gathered in an appendix. The table of contents is sufficiently full to enable any person by its aid, without referring to the index, readily to turn to the subject upon which he seeks information ; while the table of cases and the index vni PREFACE. are carefully prepared, and so complete that every special matter con- tained in the book may be easily found. The subject of insurance has become of great interest and impor- tance to nearly every person, in some one or more of its present numerous forms, and still the ordinary stipulations and conditions which are contained in a common policy, are rarely known, even to those who hold them, till the burning of the insured property calls the attention of the party interested to the question whether he is entitled to his indemnity. The Chapter on Insurance is therefore specially full and complete, containing numerous references to decided cases, and it is believed it will be found useful to the lawyer in his practice, as well as to the business men for whose use the book is more especially intended. F. C. Hartford, June, 1869. COI^TEWTS. CHAPTER I. WHAT IS LAW? Definitions and general principles upon which all laws rest, . 33 CHAPTER n. OF COMMERCIAL LAW. Its origin, history and growth, out of the customs, usages and convenience of business men, and the general rules which regulate and govern it, . . . . . . . .41 CHAPTER III. OF PROPERTY. The basis upon which it rests, and the principles, rules and forms which secure and control its Occupation and enjoyment, and govern and regulate its transfer and conveyance, . . . .50 CHAPTER IV. AGENCY. Section I. — General Views, ..... 54 II. — Who may be Agents, . . . . .55 III. — Different kinds of Agency, ... 56 IV. — Appointment of Agents, . . . .60 V. — Extent, Execution and Duration of Authority, . 63 VI. — Duties of an Agent, . . . . .65 VII. — Liabilities of the Principal, / . . . 60 CONTENTS. FOEMS. ] . — General Form and Letter of Attorney, . . . " . 67 2.— Power of Attorney to Sell Stock, .... 67 3. — Form of Appointment by Substitution, . . .68 4. — Proxy to vote for Directors, ..... 68 5. — Power to receive Dividends, . . . . .68 6. — Power of Attorney to Sell or Lease Lands, ... 69 7. — "Warranty Deed executed by Attorney, . . . .69 8. — Revocation of Letter of Attorney, .... 70 / CHAPTEE V. AGREEMENT OR CONTRACT. Section I. — General Outline and Principles, ... 73 " II.— Of the Consideration, . . . . .73 a. Of Implied Contracts, ... 75 J. Contract of Record, . . . .76 " III. — Of the Parties to Contracts and who are Disabled to Contract, ..... 77 " IV.— Subject Matter of Contracts, . . . .83 Contracts against Public Policy, ... 83 Illegal Contracts, . . . . . '83 Fraudulent Contracts, .... 83 Misrepresentation and Concealment, . . .83 Statute of Frauds, .... 84 Revenue Stamps required by the United States Gov- ernment, . . . . . .86 FOKMS. 1. — Brief General Fomi of Agreement for amy purpose, 3. — Agreement for Arbitration, .... 3. — " for sale of Real Estate, 4. — " another form for sale of Real Estate, 5, — " third form for sale of Real Estate, 6. — " for purchase of House and Lot, . 7. — " for a Lease, .... 8. — " same ; shorter form, 9. — Builder's Agreement to build according to Plans, 10. — Same, in shorter form and referring to Specifications, 11. — Same ; another Form, .... 13. — Same, with Special Covenants, . . 13. — Specifications for a House, Proposals to Build, No. 1, . 93 93 93 94 95 96 97 98 99 100 101 106 No. 3, . . . . 107 CONTENTS. 14. — ITotice of intention to build, and requesting Grade, . . 107 15. — Agreement of Apprenticeship, .... 107 16. — " of Compromise witli Creditors, . . . 108 17.— " for sale of Shares of Stock, ... 109 CHAPTER VI. OF SALES. Section I. — "What constitutes a Sale? .... Ill " II.— Of Conditional Sales, .... 112 ■' in.— Of the subject of Sale, .... 114 " IV. — The article sold must be in existence at the time of the Sale, . . . . . .115 " V. — Of Implied Warranty of the article sold, . 115 " VI. — What title passes upon sale, .... 116 " VII. — Of Representation and Express Wan-anties, . 116 " Vin.— Of Rescission of Contracts, . . . .117 " IX. — When a Personal Contract dies with the person, 118 " X. — Construction of Contracts, .... 118 " XI. — Of the Seller's right to stop goods in transitu, . 119 1. — When does it exist? ...... 119 3. — Who may exercise it ? . . . . . 120 3. — How long does it continue ?..... 120 4. — How is it to be exercised? ..... 121 J FOKMS. 1.— Bill of Sale with Wan-anties, . . . . .133 2.— Same, with Warranty of Title, .... 133 3. — Bill of Sale, common form without Warranty, . . 134 CHAPTER VII. OF LIENS. Section I. — Definitions, . . . . . .135 1. — Of the Lien of a Bailee to perfonn service upon a thing, .... 135 3. — Of the Lien of a Hotel Keeper, . .125 8. — Common Carrier's Lien, . . . 125 4. — Seller's Lien upon goods sold, . . . 136 5. — Lien of Agents or Factors, . . 126 6. — Shipbuilder's Lien and Mechanic's Lien, . 126 Section II. — Common Law Lien ; how acquired and different kinds, ...... 138 " III. — How a Lien may be lost, .... 139 " IV. — Forms, &c., for securing a Mechanic's Lien, . 180 XU CONTENTS. CFIAPTER VIII. OF TITLE BY GIFT. Section I. — Of Gifts Simple and Absolute to take effect immedi- ately and in life time of the giver, . .133 " II. — Of Gifts in apprehension of death, and to take effect only in event of death of giver, . . . 132 " III. — Form of Gift of Chattels by a father to a married daughter, ...... 133 CHAPTER IX. OF COMMERCIAL OR NEGOTIABLE PAPER. Section I. — Definitions and Forms, .... 135 Forms. 1. — Promissory Note, . . . . . .135 2.— Bank Bill, ....... 135 3.— Bill of Exchange, . . . . . .135 4.— Bank Check, , . . . . . . 136 Section II. — History of Bills and Notes, . . ., . 139 " III. — Essential Features of Negotiable Paper, . 142 " IV. — Difference between Negotiable and Non-Negotiable Paper, ...... 143 " V. — Accommodation Paper, .... 144 " VI. — Liabilities of an Endorser and Notice to him, . 144 " Vn. — Of the Acceptance of a Bill of Exchange, . . 151 " Vni. — Forms of Protest for Non-Payment and of Notice to Indorsers, . . . . . .153 CHAPTER X. OF GUARANTY AND SURETYSBIP. Section I. — Definitions and General Principles, . . . 155 " II. — Forms of Guaranty, .... 158 " III. — How Discharged, ..... 163 " IV. — Rights of Creditor against Surety, . . 163 " V. — Rights of Surety or Guarantor, . . . 163 " VI. — Rights and Remedies of Sureties among themselves, 165 " VII. — Letter of Credit, — General Form, . . . 167 CONTENTS. XIU CHAPTER XI. OF BAILMENTS. Section I. — Definitions and General Principles, . . . 168 " II. — Of Deposits, or Naked Bailments without Reward, 170 " III. — Of Gratuitous Commission ; where the Bailee is, 'ndth- out compensation, to do something upon, or in re- lation to, the thing bailed, . . . 173 " rV. — Upon Commodatun or Loans for use without Pay, 175 " v. — Upon Pledges, or Bailments as Security, &c., . 178 " VI. — Of Hiring and Letting for Reward, . . 184 " VII.— Of Common Carriers, . . . .188 " Vin. — Of Inn Keepers and their Liabilities, . . 197 CHAPTER XIL OF PARTNERSHIPS. Section I. — Definitions. What is a Partnership ? . . 202 " II. — Qf the Formation of Partnerships, . . 203 " III. — Of the Interest of the Partners in the Common Stock, 206 IV. — Of the Power of each Partner to bind the Finn, 309 " V. — Of the Power of a Partner to bind the Firm by ad- mission of Indebtedness, 212 " VL — What Acts of a Partner will be held to be for the Joint Account and Benefit, . . . 213 " VII.— Of Dissolution ; its Causes and Effects, . . 313 " Vni. — Of the Remedies of Partners between themselves dur- ing the continuance of the Partnership and upon Dissolution, . , . . . 317 JFOKMS. 1. — ^Agreement for Copartnership, ..... 218 3. — Same, with Different Stipulations, .... 220 3. — Form for Renewal of Same, ..... 223 4. — ^Agreement of Dissolution, &c., . . . 222 5. — Notice of Dissolution, under Power reseiTed in Articles, . 222 6. — Certificate of Limited Partnership, and Acknowledgment of Same, 223 Affidavit of Payment in Cash for Special Capital, . 224 Note. — General Requirements to be observed for protection of Special Partners, ...... 234 7. — Articles of Special Partnership, .... 335 XIV CONTENTS. CHAPTER XIII. OF COKPOEATIONS. Section L— Of their Different Kinds, . . . .238 " II. — Of the Organizatipn of a Coi-poration and the Liability of its Members, . . . . .230 " III. — Of its Existence and Right to do Business in States and Countries other than that in •which it is created, 331 " IV. — Of the Obligation of a Subscriber for the Stock of a Corporation, ..... 337 " v.— Liability of Stockholders to Creditors, . . 238 " VI. — ^Powers and Liabilities of Directors, . . 339 " VII. — Powers and Liabilities of the Corporation, . 342 '' VIII. — Of the Termination and Dissolution of a Corporation, 245 Forms. Section IX. — Forms of Organization of Joint Stock Company, 1. — Articles of Association, 2. — Notice of First Meeting of Associates, 3. — Form of Waiver of Notice, . 4. — Records of a Joint Stock Company, 5. — By-Laws of Same and Form for Votes, 6. — Certificate of Organization, 7. — Common Form of Transfer, . 8.' — Form of Certificate of Transfer, . 9. — Form of Certificate of Stock, 10. — ^Form of Annual Certificate, 11. — Form of Certificate of Payment of Instalment, 12. — Form of Amendment of the Articles of Association, 13. — Certificate of such Amendment, 14. — Certificate of Increase of Capital, 346 347 347 348 248 349 353 254 254 255 255 350 356 257 258 CHAPTER XIV. OF PAYMENT. Section I. — What Amounts to Payment ? II. — Of the Place of Payment, " III. — Of the Application of Payments, ■' IV. — To Whom Payment may be Made, " v.— Efi'ect of Part Payment, " VI. — Payment when Presumed, 259 261 203 264 364 265 CONTENTS. XV CHAPTER XV. OF INTEREST AND USURY. Section I. — Definitions, ...... 267 " 11. — Of the Usual Mode of Computing Interest, . 270 " III. — The Law of what Place determines the Rate of Interest, 271 " 'IV.— Of a Change for Risk of Services, . . 271 " V. — ^When, and upon what Debts, is Interest due ? . 273 " VI. — Of the Sale of Notes and other Securities, . 373 (For rates of Interest and Usury Laws see Appendix.) CHAPTER XVI. OE INSURANCE. Section I. — Definitions, ...... 274 " II. — The Purpose of Insurance, . . . 275 " HI. — Who may Insure and how the Contract is made, . 276 " IV. — Alteration of a Policy of Insurance, . . 280 " V. — Jlistake in Drafting Policy, .... 280 VI. — Insurable Interest ; what may be Insured ? . 283 First : As to Marine Insurance. a. Subject Matter and Description thereof, . 283 b. Interest Insured must be a Legal Interest, . 28o c. Seaman's Wages, Freights and Profits, . 2 si; d. Consignees may Insure, . . . .288 Second : Of the Interest of tlie Insured under a Fire Policij. a. Distinct Interests in Same Property, . . 289 b. Illustrations and Cases, . . 290 c. Insurable interests of Mortgagor and of Mortgagee, 394 Section VII. — Common Form of Fu-e Insm-ance Policy in a Stock Company, ..... 313 a. Form of Assignment and Assent by Company, 319 b. Form of Renewal, . . . .320 Section VHI. — Kotes on a Fire Insurance Policy, . . 320 First : " In consideration of $50, to them in hand paid," &c., " the receipt whereof is hereby ac- knowledged," 320 Second : " Do insure against loss or damage by fire," &c., . . . . .325 Third : " And said company agree to ma^« good unto the said assured all such immediate loss or damages not exceeding in amount the sum named," &c., . . . . .333 XVI CONTENTS. Section VIII. — Fourth : " As shall happen by fire,'' . . 333 Fifth : " From the 12th day of March 1869 at Twon, to the 12th day of March 1870 at noon," . 335 Sixth : " The amount of loss and damage to be es- timated according to the actual cash value at the time of loss," &c., .... 336 Seventh : " To be paid 60 days after due notice," &c., 338 Eighth : " In case difference shall arise," &c., (provid- ing for arbitration), .... 339 Ninth: "It shall be optional with the company to repair, rebuild," &c., " with other of like kind and quality within a reasonable time," • . . 339 Tenth : " This company shall not be liable for theft at or after a fire," ..... 346 Meeenth : " Nor for any loss or damage by fire caused by means of or during an invasion, insurrection, riot, civil commotion, or military or usurped power," 348 Twelfth': " Nor for the loss of bills, notes, accounts, &c., unless particularly specified in the policy," 351 Thirteenth : " Nor fi'om fire in buildings unprovided with good, substantial stone or brick chimneys," 353 Fourteenth : " Nor in consequence of any neglect or deviation from the laws or regulations of police," &c. " Nor for loss or damage caused by the falling of any building ; nor for any loss occasioned by the explosion of any gunpowder, camphene or any explosive substance," .... 354 Fifteenth : " Nor for any loss or damage caused by the removal of property fi'om a building, except it be proved that such removal was necessary to pre- seiTC the property ; in which case the damage shall be borne by the assm-ed and the Company in the proportion that the whole sum insured bears to the whole value of the property assured," . 357 Sixteenth : " If an application, survey, plan or de- scription of the property, herein insured, is referred to in this policy, such application, survey, plan or description shall be considered a part of this con- tract and a warranty of the insured," . . 358 Seventeenth : " Or if the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the con- sent of the company written hereon," &c., . 377 CONTENTS. xvu Section VIII. — Eighteenth : " Or if the premises sliall be occupied or used so as to increase the risk, or become vacant and unoccupied, or tlie risk be increased by the erection of adjacent buildings, or by any other means, within tlie control of the assured, without the assent of this company, endorsed hereon, &c., then, &c., this policy shall be void," . . 390 Nineteenth : " Or if the property be sold or transferred or any change take place in the title or possession whether by legal process or judicial decree or vol- untary transfer or conveyance, this policy shall be void," . . . . . .405 Twentieth : " Or if this policy shall be assigned either before or after a loss, without the consent of the company endorsed hereon, this policy shall be void," 412 Twenty-first : " Or if the assured is not the sole and unconditional owner of the property ; or if the in- terest of the assured in the property, whether as owner, trustee, consignee, factor, mortgagee, lessee or otherwise be not truly statfed," &c., " this policy shall be void," . . . . .418 Twenty -second : " Or if the premium be unpaid," . 425 Twenty-third : " Or if the assured shall keep gun- powder or phosphorus, or keep and use camphene, spirit gas, or chemical oils, without wTitten permis- sion in this policy, then, &c., this policy shall be void," 425 Twenty-fourth : " If in the opinion of the company an over insurance exists, or shall be hereafter made on the property hereby assured, or the risk be in- creased by any means, or if for any other cause the company shall so elect, the company reserve to themselves the right of canceling this policy, by paying to the insured the unexpired premium pro rata," ...... 431 Twenty-fifth: "This insurance (the risk not being changed) may be continued for such further time as may be agreed on, provided the premium therefor , is paid and endorsed on this policy, or a receipt given tlierefor, and it shall be considered as contin- ued under the original representation ; but in case there shall have been any change in the risk, either within itself or by adjacent buildings, not made 2 XViu CONTENTS. Section VIIL— known to the company by the assured at the time of renewal, this policy and renewal shall be void," 433 Twenty-sixth : " If the interest of the assured be any other than the entire, unconditional and sole own- ership of the property, for the use and benefit of the assured, it must be so represented to the com- pany, and so expressed in the written part of this policy ; otherwise the policy shall be void," . 436 Twmity-seventh : "In case of any other insurance upon the property hereby insured, whether prior or sub- sequent to the date of this policy, the assured shall be entitled to recover no greater proportion of the loss sustained, than the sum hereby insured bears to the whole amount insured thereon, whether such other insurance be by special or by general or float- ing policies. Re-insurance for any other insurance company to be on the basis of joint liability with said company, and in the event of loss, this compa- ny to pay its propoi-tion of said loss sustained by said company under this policy," . . 437 Twenty-eighth : " In case of loss the assured shall use their best endeavors in saving and protecting the property from damage at and after the fire ; if they shall fail so to do, this company will not be liable for damages caused by such failure ; and there can be no abandonment to the company, of the property insured," ...... 442 "When personal property is damaged, the assured shall forthwith cause it to be put in the best order possible, properly aiTanged, and make an inventory thereof, naming the quantity and cost of each arti- cle, and upon each article the damage shall be sep- arately appraised. The report of the appraisers in writing shall form a part of the proof hereby re- quired," &c., . . . . ^ . Tloenty-ninth : " The assured shall forthwith give no- tice of said loss to the company," . . 443 Thirtieth : " And as soon after as possible render a particular account of such loss, signed and sworn to by them, stating whether any and what other in- surance has been made on the same property, giving copies of the written portions of all policies thereon, the actual cash value of the property, their in- terest therein, for what purpose the building insured CONTENTS. xix Section Vin. — or containing the property insured and the several parts thereof, were used; when and how the fire orignated," &c. .... 448 Thb-ty-firat ; "And shall also produce a certificate under the hand and seal of a magistrate, notary public or commissioner of deeds nearest to the place of the fire not concerned in the loss as a creditor or otherwise, nor related to the assured, stating that Tie has examined the circumstances attending the loss, knows the character and circumstances of the assured and verily believes that the assured has without fraud sustained loss on the property insured to the amount which such magistrate, notary pub- lic or commissioner shall certify," . . 453 Thirty-second: "And the assured shall, if requii-ed, submit to an examination under oath by any per- son appointed by the company, and if deemed necessai-y by the company, to a second examination, and subscribe to such examination when reduced to writing," ...... 400 TMrty-ihird: "And shall also produce their books of account and other vouchers and all property hereby insured, whether damaged or not damaged and shall also produce certified copies' of all bills and invoices, the originals of which have been lost, and exhibit the same for examination to any per- son named by the company," . . . 463 Tliirty-fotirtli : " Damage to property not totally de- stroyed shall be appraised by disinterested men mutally chosen by the assured and the company ; and the company reserves the right to take the ar- ticles damaged, at their appraised value," . 464 Thirty-Jifth : "When personal property is damaged, the assured shall forthwith cause it to be put in the best order possible, properly an-anged, and make an inventory thereof, naming the quantity and cost of each article, and upon each article the damage shall be separately appraised ; and the detailed re- port of the appraisers in writing shall fonn a part of the proofs hereby required, one half of the ap- praisal fees to be paid by the company," . 466 TMiiA/sixth : " In case of loss of property held in trust or on commission, or if the interest of the as- sured be other than the entire and sole ownership, j£x context.^. Sbction VIII. — the names of the respective owners shall be set forth, with their respective interests therein, certi- fied by them," . . . . .467 Tliirty-sei>enth : "If this policy is made payable in case of loss to a third party, or held as collateral security, the proofs of loss shall be made by the party originally insm'cd, unless there has been an actual sale of the property insured," . . 468 TMrty-eighth : " And until such proofs, declarations and certificates are produced and examination and appraisals permitted, the loss shall not be payable," 470 Thirty-ninth : " All fraud, or attempt at fraud, oi false swearing on the part of the assured, shall cause a forfeiture of all claims under this policy," 471 Fortieth: "It is furthermore hereby expressly provi- ded and mutually agi'eed that no suit or action against this company, for the recovery of any claim by virtue of this policy, shall be sustained in any court of law or chancery, unless such suit or action shall be commenced within twelve months next after the loss shall occur ; and should any suit or action be commenced against this company after the expiration of the aforesaid twelve months the lapse of time shall be taken and deemed as conclu- sive evidence against the validity of such claim, any statute of limitations to the contrary notwith- standing," ..... 473 Forty-first : " Plate glass in doors or windows when the dimensions are three square feet or more, also fences, &c., must be separately and specifically in- sured, otherwise they are not protected by this pol- icy," 478 Forty-second : " Camphene, spirit gas, burning fluid, phosgene or any other inflammable fluid, when used for a light, subjects the insured to an additional charge, and permission for such use must be en- dorsed in writing on the policy, otherwise this in- surance shall be void," .... 479 Forty-third : "In witness whereof, &c. And this pol- icy is made and accepted upon the above express Section IX. — Of the construction of Insurance Policies, . 481 " X. — General principles of Mutual Insurance Companies and decided cases, .... 488 CONTENTS. XXI Section XI. — Of foreign Insurance Companies, . . 513 " XII.— Of Life Insurance, . . . . .515 First : of definitions and distinguishing chai'acter- istics, ..... 515 Second : of the advantages of Life Insurance, 516 Tliird : of the interest required to sustain a Con- tract of Life Insurance, .... 530 Fourth : of Warranty, Representation and Conceal- ment, . . . . . .537 Fifth: of Suicide; Death by one's own hand; and death by the hands of justice, . . 562 Sixth : of the interest of married women in pol- icies of insurance, .... 575 Seventh : of Assignments of Policies of Life Insur- ance, ...... 583 Section XIII. — Of Insurance against Accident, . . 586 " XIV.— Of Live Stock Insurance, . . .594 " XV. — Of steam Boiler Insurance, . . . 595 CHAPTER XVn. OF BONDS. Section I. — Definition and essential characteristics, and Bonds with and without conditions, . . . 597 " IL — Railroad and other Coupon Bonds, . , 599 Forms. 1.— General Form of Bond. . . . . .598 2. — Bond with condition to pay money, . . . 600 3. — Another form with similar condition, . . . 600 4. — Bond with condition to indemnify, . . . 600 5. — Same, another form, ...... 601 6. — Condition of a Bond of Arbitration, . . . 601 7. — Condition of a Bond of Indemnity on paying a lost Note, 603 8. — Condition to convey Land, ..... 603 9.— Bond with Sureties, ..... 603 10. — Bond of a Cashier of a Bank, .... 603 CHAPTER XVm. OF ARBITRATION. Section I. — General principles, ..... 604 " n.—Ofthe Award, ..... 607 " III. — Of the power to revoke submission, . . . 608 XXU CONTENTS. Forms. 1. — Common form of submission to Arbitration, . . . 608 3. — Bond with condition for reference and Arbitration, . 609 3.— Arbitrator's Oath, . . . . . .610 4. — Summons to witnesses to appear before Arbitrators, . 610 5. — Award of Arbitrators, ...... 610 6. — Award, shorter form, . . , . . 613 CHAPTER XIX. OF ASSIGNMENTS. Section I. — ^Assignment of Choses in Action and other instru- ments and evidences of Title, . . . 613 " n. — Of Voluntary Assignments by Debtors, without pro- ceedings under Statutes of Bankruptcy or Insol- vency, ...... 615 Forms. 1, — ^Assignment of United States Land Warrant, with proper form of acknowledgment, certificate, &c., . . . 617 3. — Assignment of Judgment in New York, . . . 619 3. — Assignment of Mortgage, with covenant as to amount due, 619 4. — Voluntary Assignment of an Insolvent Debtor, . . 620 5. — Common form of Assignment of Policy of Insurance with as- sent of Company, &c., ..... 623 6. — General form of Assignment to be endorsed upon any instru- ment, ..... . 623 7. — Assignment of wages now due and to become due with power of attorney to collect, ..... 623 8. — Assignment of Debtor for benefit of Creditors without prefer- ences, ....... 623 CHAPTER XX. OF BANKRUPTCY AND INSOLVENCY. Section I. — Of general principles common to both, . 635 " n. — Of delegation of general power to United States and limitation upon power of the; States, . . 626 " III. — Synopsis of Bankrupt Law of United States of 1867, and amendatory act of 1868, . . . 638 First: Of the Courts of Bankruptcy, . . 628 Second: Appointment of officers and regulation of pro- ceedings, ...... 629 CONTENTS. xxiii Third : Assignment and Assignees, . . 630 Fourth : Proof of Debts, &c., . . .630 i^j/M; Examination of Bankrupts, . . 631 Suth : Distribution of Estate, . . . 631 Seventh : Discliarge of Debtor and its effect, . 633 Eighth : Fraudulent preferences, conveyances, etc., 633 Ninth : Penalties against debtors and against officers, 684 CHAPTER XXI. OF REMEDIES FOR COLLECTION OF DEBTS. Section I.— Of Arrest, . . . . . .637 " n. — Of Attachment and garnishment or Trustee Process, 639 CHAPTER XXII. OF PROPERTY EXEMPT FROM ATTACHMENT AND FROM LEVY OF EXECUTION, HOMESTEADS, &c. 643 Synopsis of Homestead and other Exemption Laws of different States. See Appendix 3, . . . . . 92.5 CHAPTER XXIII. OF LIMITATIONS OF REMEDIES. Section I. — English Statute of Limitation and its construction and of the adoption of its main provisions by the States, ...... 645 II. — "What will take a debt or duty out of the effect of the Statute, ...... 648 a. Part Payment, .... 648 b. A new acknowledgment or promise, . . 649 c. Of the promise of one of several copartners or joint debtors, ..... 655 " in. — Of the computation of time, . . . 656 " IV. — Want of competent parties. Plaintiff or Defendant, 658 " V. — Mortgage or other Collateral Securities, not discharg- ed by the running of the statute time, . . 659 " VI.— Of Statutory Exceptions, ... 660 CHAPTER XXIV. OF TITLE BY OCCUPANCY AND PRESCRIPTION. Section I. — Real Estate acquired by occupancy, . . .661 " II. — Personal Estate acquired by occupancy, . 663 XXIV .CONTENTS. CHAPTER XXV. OF TITJ.E BY MARRIAGE. Section I. — Estates by the Courtesy, . . . .665 " II.— Estates by Dower, . . . . 66tj " III. — Of the interest which the husband acquires in the per- sonalty of his wife, .... 667 CHAPTER XXVI. 1 OF TITLE BY DESCENT. Section I. — General Explanations, .... 669 " II. — Rules for Determining who shall Inherit, . 669 CHAPTER XXVn. OF TITLE BY DEVISE OR BEQUEST. Section I. — Definitions and General Principles, . . . 674 " II. — How Estate may be Limited by Devise, . . 676 CHAPTER XXVin. OF TITLE BY PURCHASE. Section I. — Of Forms of Conveyance, .... 678 " II. — Deeds, and Who may be Parties thereto, . 681 " in. — Formalities ; how they should be Executed, . 687 " rV. — Recording of Deeds and other Evidences of Title, 689 Poums op Deeds. 1. — Bargain and Sale without Covenants, . . . 703 3. — Quit Claim, without Covenants, .... 704 3. — " " with Covenants, ..... 704 4. — Bargain and Sale with Covenants against Grantor only, 705 5. — Quit Claim by Trustee, ..... 706 6. — Warranty Deed — New England Form with full Covenants, 707 7 —Warranty of Real Estate of Wife, .... 708 8. — Deed of a Water Course, ..... 709 9. — Same, for Irrigation, with Special Provisions, . . 710 10. — Conveyance to a Married Woman to her separate use, . 711 11. — Deed of a Right of Way, . . . . .712 CONTENTS. XXV 13. — ^Deeds Prescribed by Statutes of Indiana, . . 713 13. — Deeds prescribed by Statutes of Iowa, . . .713 14. — Conveyance to One, to hold till his Son shall become of Age, 714 15.— Deed by Tax Collector, . . . . .714 16.— Deed by Sheriff, 716' 17. — Deed of a Corporation, ..... 717 18. — Warranty Deed in which Grantors warrant separately, . 718 19.— Deed of Executor, ...... 719 30. — Deed of Administrator, ..... 730 31. — Deed by an Adnvinistrator of an Estate which an Intestate had agreed to convey, ..... 731 23. — ^Deed by an Executor under a Power in a Will, . . 733 23. — Deed by a Guardian, ..... 723 24. — Confirmation of Deed by Endorsement by Infant on coming of age, ....... 734 25. — Warranty Deed by Indenture, in use in some of the States, 735 26. — Same, with Covenants of Grantee as to Maintenance of Com- mon, Way, and Park, and against Nuisances, . . 736 27.— Trust Deed for Benefit of any Person, ... 738 38. — Same, to Secure Performance of some Duty or Payment of a Debt, 730 29.— Trustee's Deed, ...... 732 30. — Deed from a Master or Receiver under Order of Court, . 733 31. — Deed from Husband to Wife Vesting the Estate directly in the Wife by force of the Statute of Uses, . . 734 33. — Conveyance by Two Trustees to One Continuing and One New Trustee, . . . . . . 735 FoEMS OP Acknowledgment. 1. — Common Form in use in New England, . . . 736 3. — Same, in use in New York and other States, . . 730 3. — Same with Certificate of Examination of Wife, separate and apart, ....... 737 4. — Same with Special Certificate of Examination^of Wife after In- formation of Homestead Laws, &c., . . . 737 5. — Release of Rights of Dower and Homestead in Land of Hus- band taken adversely, ..... 738 6. — Same when the Wife did not join in the Original Convey- ance from her Husband, ..... 739 CHAPTER XXIX. OF MORTGAGES. Section I. — Of Mortgages of Real Estate, . . . 741 , " II.— Of Mortgages with Power of Sale on Default, . 746 " in. — Of Mortgages of Personal Property, . . 747 XXVI CONTENTS. Forms. Mortgages of Personal Property. 1. — ^Mortgage of Furnitm-e, Machinery or any other Personal Chat- tels, '?50 '2. — Same, another Form, ..... 751 3. — Mortgages with Power of Sale, .... 751 4. — Same to Secure Endorsements, . . . ' . 753 5.— Deed of Trust,— Personal Estate, . . . .753 Mortgages of Real Estate. 6. — Common New England Form, with Warranty, . . 754 7. — Real Estate Mortgage with Power of Sale, . . 755 8. — Discharge of Mortgage to be entered on the Records in Massa- chusetts, ...... 757 9. — Satisfaction of Mortgages in New York, . . . 757 10. — Mortgage'of Land of Wife, by Husband and Wife, with Pow- er of Sale, 758 11. — Mortgage Deed by Indenture, with Power of Sale and Release of Dower and Homestead, ..... 759 13. — ^Mortgage Note, ...... 761 13. — Guaranty of Mortgage Note, ..... 761 14. — Assignment of Mortgage without Covenant or Warranty, 763 15: — Assignment of Mortgage with Covenant as to Amount Due. See Assignment Forms, No. 3, . . . . 763 16. — Assignment of Mortgage with Covenant as to Amount Due and General Warranty of Title as Mortgagee, . . 763 17. — Extension of Mortgage as to Time of Performance of Condi- tion, ....... 763 18. — Concise Form of Discharge; Sufficient Everywhere if Ac- knowledged and Recorded like a Deed of Conveyance, 764 19. — Release of Part of Mortgage Estajte, .... 764 30. — Acknowledgment of Mortgagor of Entry to Foreclose, . 764 21. — Certificate of Witnesses to prove Entry for Foreclosure, . 765 33. — Surrender of Possession by Mortgagee, . . . 765 23. — Proceedings upon Sale by Mortgagee under Power of Sale, 766 a. Affidavit of Default, &c., . . ... 766 b. Notice of Sale, ...... 766 c. Affidavit of Sale, with Copy .of the Notice, . 767 d. Deed of Assignee, upon Sale under power, . . 767 CHAPTER XXX. OF LANDLORD AND TENANT. Section L — Of Leases, ...... 769 " II.— Of Fixtures, ..... 778 CONTENTS. XXVll Forms. 1. — Short General Fonn of Lease, 2. — Lease of Rooms with Special Privileges, with Guaranty Rent, ...... 3. — ^Lease of Building, with Special Covenants, 4. — Lease of Furniture and Fixtures, 5. — Surrender of Lease, 6. — Landlord's Agreement, 7. — Tenant's Agreement, 8. — Assignment of a Lease, 9. — Same in other Form, 10.— Notice to Quit, .... 11. — Same by the Tenant, 12. — Same by Landlord for Kon-payment of Rent, 13. — Notice to Quit or pay Double Rent, 14. — Special Lease with Covenants as to Fii'e, &c., 15. — Lease upon Shares, 16. — Lease for Mining Purposes, for 780 780 781 783 783 783 784 784 785 786 786 786 786 787 789 790 CHAPTER XXXI. OF EMINENT DOMAIN. Rights of the public thereunder, Rights of owner to compensation when. 792 793 CHAPTER XXXII. OF MARRIAGE AND DIVORCE. Section I. — Law of Marriage in United States, . . . 796 n. — Who may Man-y and what Marriages are "Void, . 801 ni. — Settlements in Anticipation of Marriage, . . 803 rV. — Of Divorce ; General Principles, . . 803 V. — Subject to State Regulation, . . . 805 VT. — Of Legislative Divorces, .... 807 VII. — Of Divorce by Judicial Decree, . . .810 VIIL— Of Eflfect of Divorce in another State, . . 811 IX. — Form of Solemnization of Marriage and of Certificate, 812 X. — ^Form of Ante-Nuptial Contract, . . 813 XI.— Another Form, . '. . . .817 CHAPTER XXXIII. OF HUSBAND AND WIFE. Section I. — Rights and Disabilities of Husband and Wife, . 818 « XL— Rights of the Survivor of them, . . 831 XXVIU CONTENTS. Section III— Synopsis of Statute Laws of different States affecting rights of married women. See Appendix I. FOKMS. 1. — Agreement to Live Separate, putting Estate of Wife in hands of Trustees, ....... 821 3. — Same with Covenant to pay Stipulated Sum for Support, 833 3. — Same with Surrender to Wife of Estate which was hers, . 834 CHAPTER XXXIV. OF PARENT AND CHILD. Section I.— The Duties of Parents, . . . .837 " II.— Obligations of Children, .... 830 " m.— Of Illegitimate Children, . . . .831 CHAPTER XXXV. OF GUARDIAN AND WARD. Section I. — G-uardians by Nature and their Rights and Powers, 883 " II. — Guardians appointed by Will or Judicial Decree, 834 CHAPTER XXXVI. OF EXECUTORS AND ADMINISTRATORS. Section I. — Of Executors, their Powers, Duties and Liabilities, 835 " II. — Of Executors in their own Wrong, . . 839 " III. — Of Administrators and their Powers and Duties, . 840 CHAPTER XXXVII. OF APPRENTICES. Section I. — General Principles, ..... 842 Forms. 1. — Indenture of Apprenticeship to be Signed by the Father, . 844 2. — Same when the Father intends to become Responsible for Damages, ....... 845 3. — Same to be Signed by the Minor with the Agreement of the Father Endorsed thereon, ..... 845 4.— Consent of Minor, ...... 846 5. — Consent of Father or Mother, .... 847 CONTENTS. XXIX 6. — Consent of Guardian, .... 847 7. — Approval of Overseers of Poor or otlier Officers, . . 847 8. — Complaint to a Slagistrate by a Master, . . . 848 9. — "Warrant by a Magistrate, . . . . .848 10. — Commitment of an Apprentice, .... 849 11. — Complaint by an Apprentice and Summons thereon, . 850 12. — ^Discharge of Apprentice from further Service, . . 851 CHAPTEE XXXVin. OF WILLS. Sbction I. — ^Who may make a Will, .... 853 " n. — General requisites to its validity, . . 856 " m.— Of Codicils, 859 " rV— Of Revocation of Wills, .... 859 FOKMS. 1.— Brief General Form of "Will, . . . . .861 3. — Same, with provision for Minor Children, appointment of Trus- tees, &c., ....... 863 3.— Form for Codicil 864 CHAPTER XXXIX. OF HIGHWAYS AND THE GENERAL LAW REGULATING THEIR USE. 1. — Eights and obligations of the public, . . . 866 3. — Eights and duties of travellers thereon, . . 867 CHAPTEE XL. OF PRESUMPTIONS AND GENERAL PRINCIPLES OF E"VTDENCE. What presumptions are conclusive, .... 870 "When are only ^>rinia/aci«, and effect of, . . . 870 CHAPTEE XLI. OF PATENTS. Section I. — What is Patentable, ..... 873 " n. — How a Patent may be obtained, . . . 875 " m.— Eights of Patentee, . . . . .877 XXX CONTENTS. CHAPTER XLII. OF COPYRIGHT. Section I. — Forwh at may a Copyright be obtained? . . 879 " II. — By whom should it be taken out ? . . 883 " III. — How it may be taken out and how renewed, . 884 " IV. — Of Assignments of Copyright, . . . 885 " V. — Infringements and the remedies therefor, . . 886 CHAPTER XLIII. OF TRADE MARKS. Who may claim Property therein, .... 888 Statement of general piinciples and reference to decided cases, 888 CHAPTER XLIV. OF RELEASES AND RECEIPTS. 1. — Short form of Receipt of Money, .... 893 2. — Another form specifying Application to be made of the money, 893 3. — Receipt for Specific Articles, ..... 892 4. — General form of Release, ..... 892 5. — Release of a Lost Bond, ..... 893 6. — Mutual Release by Indenture, .... 893 7. — Release of Debtor upon a Composition with Creditors, . 894 CHAPTER XLV. OF TENDER. 1. — General Principles and Rules at Common Law, . . 89.5 3. — May be made by any person against whom a claim is set up, 895 3. —At Common Law must be made before suit is brought, 895 4. — In most of States may by statute be made after, . . 895 5. — Must be an unconditional offer of money, . . 895 6. — Written form of tender, ..... 895 7. — Of the kind of money which must be offered, . . 896 8. — Bank notes sufiicient, unless objected to, . . . 896 9.— After tender, money must be kept on hand and ready to pay over, . 896 10. — Offer of judgment by statute, .... 897 CONTENTS. xxxi CHAPTER XLVI. OF THE LAW OF SHIPPING. Section I. — General principles, ..... 898 Forms. 1.— Bill of Lading, ....... 904 3. — Bottomry Bond, ...... 905 3. — Shipping articles, ...... 906 4.— Cliarter Party, ...... 910 5. — Bill of Sale of a Registered Vessel, . . . 913 APPENDIX. 1. — Synopsis of Statute Laws of different States affecting rights of Manied Women, ...... 915 3. — Synopsis of Homestead and other Exemption Laws of the dif- ferent States, ...... 938 3. — Legal Rates of Interest and penalties for usury in each of the States, ....... 987 4. — Pension Laws, Forms, Instructions, &c., &c., . . . 939 5. — Laws, Regulations, and Decisions concerning the purchase and use of Internal revenue Stamps, (as issued by the Department in May, 1869.) ...... 943 6. — Table of Mortality, to be used in estimating the present value of annuities and of dower and other life estates, . . 959 CHAPTER I. WHAT IS LAW? I PROPOSE to make this chapter mainly introductory; to state and discuss elementary principles, and definitions, and sources of general law. And first, I think we may profita- bly inquire, " What is Law ? " It has been variously defined. In its most general senge it signifies " a rule of action," — all kinds of action, whether animate or inanimate, rational or irrational. In its more confined sense, law denotes the fule', " not of actions in general, but of human actions or conduct." I would define ^'■municipal law," simply as a rule of conduct prescribed by the supreme power in a State. Judge Swift of Connecticut, defines what he calls " civil law" to be, "a rule of human action adopted by mankind in a state of society, or prescribed by the supreme power of the government, requiring a course of conduct, not repugnant to morality or religion, productive of the greatest political hap- piness, and prohibiting actions contrary thereto, and which is enforced by the sanction of pains and penalties." Burke says, "law is beneficence acting by rule," which seems to be a more abstract statement of the same idea which Judge Swift has elaborated. Hooker, in his "Ecclesiastical Polity," says with some poetic fervor, if not with practical accuracy, " the voice of law is the harmony of the world, all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempt from her power." The greatest of the ancient sages, Aristotle, Plato, and Cicero expressed the same idea, and Plato claimed that the "essence oi freedom" consisted in the "supremacy of law over personal will, whether it be the will of one, of the few, or of the many." 3 34 WHAT IS LAW? This is all beautiful, and when applied to the laws of God, and to the great system by which he governs the universe, is very true ; but when we come down to " municipal law," which we have defined as " a rule of conduct prescribed by the supreme power in a state," let us see if we may limit that, so that it can not require a course of conduct " repug- nant to morality or religion," and compel it to call for such conduct as will be " productive of the greatest amount of political happiness ? " I think we must all agree that much of the law which governs the world would be nullified if tried by this test, and the practical application of the test would be someivhat difficult. What rule of conduct will be " pro- ductive of the greatest amount of political happiness ? " Who shall decide ? In our country we'must unquestionably leave it to the majority, and the result would be, that after all our beautiful theorizing, we should probably have to come sub- stantially to the definition I have proposed. Can it be im- proved ? It may be said that laws are sometimes adopted and muni- cipal law established before a " State " is organized, and while there is no " supreme power" recognized therein. This may be so, and if that is admitted, it will be necessary to enlarge our definition, thus : " Municipal law is a rule of human action adopted by mankind in a state of society," or " pre- scribed by the supreme power in a State." In an absolute monarchy, it is the expressed will of the Sovereign; in our country, the expressed will of the dominant party, controlled by constitutional restraints and limitations, as expounded and applied by the iudicial department of the government. These constitutional restraints and limitations constitute the chief difference between our government and the most liberal existing monarchy. England, — in many respects as free as America, — is subject absolutely to the will of the majority of the members of parliament. Their theory is, that parliament is supreme and can do anything within the possibilities of governmental power. The parliament of Eng- land is as absolute an autocrat as ever wore a crown, or wielded dictatorial power. It is responsible to public opinion WHAT IS LAW? 35 alone. It has been humorously said that " parliament can do anything but make a man a woman." In America we entirely subordinate personal will, even the will of our majorities in popular assemblies and in our State and National legislatures, to constitutional law. No man, or body of men, in this country, can give to any enactment which the Judicial department pronounces unconstitutional, the force of law. In this general statement, I of course except the war powers of the government, and those powers necessary to protect the national life. These are extraordinary, and not easily limited or defined. They may perhaps be illustrated by reference to the powers which an individual may exercise in self-defence, extending if necessary to the killing of an adver- sary, and to the use of weapons prohibited in ordinary life. As self-defence is the "first law of nature," so the safety of the repxiblic is the first and supreme law of the nation. The British parliament has the power, (to its credit it should be said they never exercise it), to take my estate and give it to a stranger, and if the statute is plain and unequivo- cal, the subject has no remedy in the courts or elsewhere. In this country, from such a statute, we appeal to the courts and obtain relief; because private property, under our consti- tution, can not be taken for private uses against the will of the owner, nor for the public use without just compensation. The sources of American law are various ; the main body of it comes from the common law of England. In some of the States this venerable body of law has been expressly adopted by statute. In all, (except -Louisiana which has adopted the civil or Roman and Continental law of Europe), it is relied upon as the guide of practice and decision where it " has not been superseded by the constitution of the United States, or of the particular State; by judicial decision, or legislative enactment, or varied by custom ; and where it is founded in reason and consonant to the genius and manners of the people." Quite important and far-reaching qualifications ; from which it will be readily seen that there is no general and universal 86 WHAT IS LAW? rule by which to ascertain, without judicial decision, what part of the English common law is valid and binding here. Our American courts and jurists pay great deference to it as being a system of improved reason, and a source from which our principles of jurisprudence have been freely drawn ; but the rules which have not been made our own by adoption are carefully examined, and in their application so far departed from as they appear to our courts and jurists contrary to rea- son, or unadapted to our local circumstances, the policy of our law, or simplicity of our practice. It aids, but does not control. The evidence of our common law is found in our books of reports, and is predicated upon the general practice and judi- cial decisions of our courts of highest resort. But the de- cisions of our own courts of highest resort are but evidence of the law, for there is really no such thing as " Judge made " law. Judges and courts can not make, they can only pro- nounce and expound law. Decisions of the courts of one State are not binding upon the courts of another State ; and some confusion arises from the different decisions of the several State courts upon com- mercial questions: but the judges of each State in their courts of highest resort, yield much respect to, and are greatly aided in arriving at a result by, a reference to decis- ions of the highest tribunals of other States ; and it may rea- sonably be expected that these different and independent tri- bunals will, in a spirit of comity, and with a view to general commercial convenience, endeavor as far as practicable to conform their decisions, upon such questions as affect the commerce of the country and its trading and mercantile inter- course and dealing, to a common standard. This result will be aided by the increased facilities for intercouse arising oiit of our numerous and increasing railroads and telegraph lines. The Supreme Coiirt of the United States is one of the co- ordinate departments of the General Government provided for in the National Constitution, and is the final arbiter upon all questions of which the Courts of the United States have cognizance, which are those arising as follows: WHAT IS LAW? b7 1. Under the Constitution and Laws of the United States, and treaties with foreign countries. 2. In cases affecting ambassadors and other public minis- ters, and consuls. 3. In all cases of admiralty and maritime jurisdiction. 4. In controversies to which the United States shall be a party. 5. In controversies between two or more States. 6. lu controversies between a State as plaintiff, and citi- zens of another State ; or foreign citizens or subjects. 7. In controversies between citizens of different States. 8. In controversies between citizens of the same State, claiming land under grants of different States : and 9. In controversies between a State, or the citizens thereof, and foreign States, citizens or subjects." The government of the United States was organized and adopted by the people of the several States, " to secure the common defence and promote the general welfare." It was invested by the people with power to control those great in- terests, which relate to the whole country, and which must rest for their protection upon the streng-th, unity alid power of the nation. "We find, by reference to the Constitution, that the people conferred upon Congress the following powers: 1. To lay and collect taxes, diities, imposts and excises ; to pay the debts and provide for the common defence and general welfare of the United States. 2. To borrow money on the credit of the United States. 3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes. 4. To establish an uniform rule of naturalization, and uni- form laws on the subject of bankruptcies throughout the United States. 5. To coin money, regulate the value thereof, and of for- eign coin, and fix the standard of weights and measures. 6. To provide for the punishment of counterfeiting the se- curities and current coin of the United States. 7. To establish post-offices and post roads. 38 WHAT IS LAW? 8. To promote the progi-ess of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. 9. To constitute tribunals inferior to the Supreme Court, to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. 10. To declare war, grant letters of marque and reprisal, and make rules concerning captures, on land and water. 11. To raise and support armies; but no appropriation of money to that use to be for a longer term than two years. 12. To provide and maintain a navy. 13. To make rules for the government and regulation of the land and naval forces. 14. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel inva- sions. 15. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be em- ployed in the service of the United States ; reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. 16. To exercise exclusive legislation, in all cases whatso- ever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of the United States, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, maga- zines, arsenals, dock-yards, and other needful buildings: and 17. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, otin any department or officer thereof. They also, in the same instrument prohibited the States from exercising powers as follows: 1 . No State shall enter into any treaty, alliance or confed- eration ; grant letters of marque and reprisal ; coin money ; WHAT IS LAW? 39 emit bills of credit; make anything but gold and silver a tender in payment of debts ; pass any bill of attainder, ex- post-faato law, or law impairing the obligation of contracts ; or grant any title of nobility. 2. No State shall, without the consent of Qongrens, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws ; and the net produce of all duties and imposts laid by any State, on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of Congress. No State shall, without the consent of Congress, lay any duty or tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually inva- ded, or in such imminent danger as will not admit of delay. The several colonies, founded before the Revolution, were bodies politic and corporate. They had their executive, leg- islative and judicial departments of government. Acknowl- edging allegiance to Great Britain, they claimed the great body of the English common law as their law. The Congress, which met at Philadelphia in 1774, declared without dissent, " that the inhabitants of the English colonies in North America, by the immutable law of nations, the principles of the English constitution, and the several char- ters or compacts, are entitled to the common law of England and to the benefit of such of the English statutes as existed at the time of their colonization, and which they have by their experience, respectively found to be applicable to their sev- eral, local and other circumstances : that these his majesty's colonies are likewise entitled to all the immunities and privi- leges granted and confirmed to them by royal charter, or secured by their several codes of provincial law." Thus it will be seen, that when the colonies became inde- pendent they retained the whole body of the statute and common laws, which were applicable to them in their new form of government. The sources of American law then are : 40 WHAT IS LAW? 1. The English common law and such statutes as existed when the colonies were founded, so far as the same are appli- cable to them in their new form of government, — and as modified by the constitutions of the United States and of the several States ; by the legislature of the General Government and of the several States, and by judicial decision. 2. The National and State constitutions, which are the su- preme law of the nation and of the several States. 3. Laws passed by the Colonial legislatures of any State before it became independent. 4. Laws passed by Congress, and by the legislatures of the several States. 5. The Common Law of the United States and of the sev- eral States. CHAPTER II. COMMERCIAL LAW. " Commercial Law" is the system of rules applied by the courts to the regulation, enforcement and control of commer- cial compacts and affairs. It is hardly synonymous with "mercantile law" or the "law merchant," which is mainly concerned with shipping, marine insurance, the law of bills of exchange and promissory notes, and the law of sales. Commercial law, in its broad sense, has much wider scope and more venerable antiquity. It is mainly the outgrowth of customs, which commenced with the earliest interchange of commodities, — how far back that carries us cannot )je deter- mined with certainty, but it can readily be traced to a period fifteen centuries earlier than the beginning of authentic pro- fane history. The transaction between Abraham and Ephron implies a fixed condition of values. Abraham paid for the field of Macpelah in silver money that was current with the mer- chants. Hamor, the Hivite prince, permitted the sons of Jacob to "trade in the land." Joseph's brethren sold him to a company of Midianitish " merchants," who were engaged in " commercial trade" with Egypt. Commerce, however, while it has existed in every commu- nity not utterly savage, has yet, from the earliest time, had its special channels, and been the favorite work of certain races. , The Phoenicians, mentioned by Moses and by Homer, were the earliest who connected the East and the West by trade. Tyre was the "Royal Exchange " of the world. The Car- thaginians were Phoenicians by origin, and their commerce was of the most wide-spread character, particularly after the downfall of Tyre. Both Phcenicians and Carthaginians were 42 COMMERCIAL LAW. however, exdusives in commerce; keeping to themselves, knowledge of tlie countries they discovered, and destroying others who visited them. I mention this, partly to show what advancement has, since that day, been made, in a generous Christian liberality ; how Christianity, commerce, and general enlightenment have stretched forth their arms to the embrace of nearly the whole eartli, till, to-day, the merchant princes of the world, recognizing a fair and energetic competition as the life and health of commerce, vie with each other in promoting, in all fair ways, universal diffusion of such knowledge as will promote the growth of trade among all nations. The telegraph would not have been a popular institution in the days of Carthage, unless they could at their end, have enjoyed a monopoly of its communications. Rome in her exclusiveness was not much, if any, better. Indeed, while Carthage and Rome were rivals in trade as well as in power, the commercial and intellectual superiority of the former, in all that is brought to us of their laws, usages, and regulations, is very clearly indicated. The Greeks were a commercial people, and among their numerous colonies, — "Masilia" (now no inconsiderable com- mercial city as the modern "Marseilles") was, for many years, one of the most successful seats of trade. The commerce of Athens was great. Xenophon tells us that " all the choicest products of Sicily and of Italy, of Ly- dia and the Pontus, of Cyprus and the Peloponesus, were continually attracted into the Athenian marts; whence in return, were conveyed to those different realms the creations of Athenian labor and skill. It is pleasant to remember that Athenian commerce was at the summit of its prosperity when Athenian genius was most grandly prolific, in philosophy, poetry, history, oratory, and the fine arts. History teaches that commerce and Commercial Law, go hand in hand with all that conduces to the highest develope- ment in civilization, cultivation and refinement. Corinth, oalled " The wealthy," by Homer, was the great- COMMERCIAL LAW. 43 est of the Greek centres of trade. The commercial historian tells Tis of the "Ionic League," which embraced Miletus, Ephesus and several other city States, — of Rhodes, of Etru- ria, of Florence, Genoa, Pisa, and Almalfi. The ''Hanseatic League" laid the foundation of the com- mercial greatness and national wealth of the Netherlands, of whose commercial life much of historic interest might be told. But to come down to modern commercial history, JEngland, for centuries, has been the. greatest of commercial nations. In all time past of which we have any knowledge from sacred or profane history, nothing like her commerce, has ever been seen. She trades with and is carrier, insurer, and banker for all the world. Our own country must, of necessity, be greatly dependent upon commerce for the development of the largest and full- est national life and power of which she is capable; and before the commencement of our civil war, her commerce was great, and was rapidly pushing forward to absolute su- premacy. Why should it not be superior to anything ever known? Nothing like our extent of sea-coast, of navigable rivers, ,and various internal water communications ; of sepa- rate States, knit and bound together by national cohesion and unity; of divers and independent races and human forces; of national craving for property and commercial power and greatness, combined with an extraordinary en- dowment of trading tact, — or what Mrs. Stowe ^\^ould call, "faculty power," — has ever been known to the world in an- cient or modern time. The war has been a check to our commercial growth : but it has increased our national navy to such greatness as it never would have attained, but for the necessity which has compelled us to provide for the public defence and protection. England became by commerce mainly, the most powerful, free and enlightened country in the world. If we out-strip her in the national race and come to a higher result, it will be due in great measure to superior commercial resources, arising out of the internal and external conditions to which I have alluded. 14 COMMERCIAL LAW. Commerce is a great power in the world. It not only does more to keep the peace than any, or perhaps all, other agen- cies, but in great measure it gives law to the world. Itself created and stimulated by the necessities of life and the national craving for property, power, and dominion, it not only maintains its own life and place in the world, but has compelled all civilized nations to come into acquaintance, correspondence and intimacy. It is the handmaid of religion. It cultivates our faith. What more beautiful instance can be named, of the confi- dence which man has in his fellows, in the truth of human statements and the honesty and honor of human conduct, than the willingness with which he places his entire fortune at the absolute disposal of men on the other side of the globe ; he has never seen them and perhaps never expects to, — he lias heard of them, as we hear of matters belonging to another life, and he commits to them ship-loads of his most costly possessions in full confidence that they will be received with care, disposed of with skill and fidelity, and that faith- ful returns will reach and enrich him. In addition to these more quiet, though perhaps ;^ot less potent influences, commerce speaks in the thunder of British cannon, when China, in pursuance of an exclusive and nar- row policy, — which had nothing better than a hoary antiquity to commend it to human favor, — refuses trade or intercourse. Incidentally it results from this, that one-third of our race are opened up to the aggressive mission of Christianity. It is commerce which compels the anchorage of British and American fleets at Japan. Commercial necessities originated the negotiation which resulted in our treaty with that people, and, by treaty or by force, the commercial necessities of the great powers of the world will eventually compel even that most exclusive of the nations of the earth to recognize the common brotherhood of man, and the obligation binding nations as well as individuals to observe the laws of social life and national comity. COMMERCIAL LAW. 45 Man has certain general and permanent wants, instincts and desires, which, rather than hare ideas, abstractions, and metaphysics, give rise to moral, and other laws, governing individual life. So man, aggregated and combined into national organiza- tions, has, still, similar instincts, wants and desires, which originate and mould and perfect International and Commer- cial Law. These instincts, wants and desires, have never been so intelligently directed as at the present time. Individual greatness has towered more conspicuously than it does to-day, or ever, in the nature of things, can be ex- pected to do again ; but the universal average intelligence of the race is much higher at this time than ever before. In the days of her glory, Athens, then the queen city of Greece, had her Pericles in the senate, and her Phidias in the arts ; — Rome had her great men, lifted high above the common average of national intelligence ; — and from these wonderful specimens of individual growth and greatness, have come down to us works in almost every department of life. In philosophy and oratory ; in art and in law ; the writings of Aristotle and Plato, of Socrates and of Seneca ; the speeches of Demosthenes and of Cicero ; the statuary of Phidias, (" Sculptor of the Gods"), of Michael Angelo, and of Leonardo Da Vinci ; the paintings of Raphael and of Titian ; the code of Justinian, and, at a later day, the code of the first and greatest Napoleon. These have been, and must forever be, the wonder and the glory of humanity. But what was the average advancement and intelligence of the nations in which these remarkable men lived, and wrought, and died ? Socrates paid the penalty of superior intelligence by drain- ing the cup of hemlock. Phidias languished and died in prison, because his coun- trymen fancied a resemblance between some of the figures of the Gods, W'hich he had wrought in his beautiful marbles, and the sculptor and his friend Pericles. For this " impiety " he died in prison and in disgrace ; and 46 COMMERCIAL LAW. we thank his stupid and envious countrymen that they spared his divine works. DaYinci, — great in both departments of the arts, and equal, if not superior, to any man of his time, — solicited employ- ment of a Duke at a salary of $500 a year. The codes of Justinian and Napoleon have come to us ; — a store house of improved reason and refined learning, from which the commercial and other laws of our day have drawn most valuable treasures ; they are monuments of the great- ness of their authors, and of their absolute supremacy over the men of their time. How different from all this is the story of the growth of modern law, and especially of the Commercial Law of the present time. It is the result of the common and universal intelligence of the merchants and traders, of the business men in every de- partment of life, who originate, stimulate and control the practical affairs by which the human race, to-day, lives and makes progress. The commercial law of our time is not the monument of the wisdom of any man, or set of men. Wliile it owes much to such men as Mansfield and Stowell in England, to Valin, Pothier, and Emerigon upon the continent, and to our own Marshall, and Story, and Kent, it is after all, in point of fact, a system built up by the merchants, traders, and business men of very modern time, with but little aid from courts or legislatures. Courts, when expounding and declaring commercial law, have in very many instances only impressed with a judicial sanction, or deduced proper and reasonable consequences from, those regulations, which the experience of the trader, whether borrowing from others or inventing himself, had al- ready adopted as the most convenient. Legislatures, wisely reflecting that commercial men are notoriously the best judges of their own interests, have in- terfered as little as possible with their avocations, and have shackled trade with very few of those restrictions and for- COMMERCIAL LAW. 47 malitics "which are mischievous, if only on account of the waste of time occupied in complying with them. Commercial law, as to-day administered throughout the world, is mainly the growth of the last three centuries ; and it is, of all laws the world has ever known, the most com- pletely the offspring of usage and convenience, and the least fettered by legislative regulations. In other countries and at an earlier day the law enforced, by many and anxious regulations, the keeping of a correct accomit by a merchant. In our day, the legislature wisely leaves that, and many kindred duties, to be enforced solely by public opinion, and by the dread of that reproach and loss of credit, which follows the detection of any form of negli- gence or irregularity of that kind. It is perhaps owing greatly to this, that we find such high and peculiar sentiments of commercial honor prevalent among the leading business men of our country and of the world. Those who early engaged in trade discovered that the law had few rules for the government of their transactions, and deemed it necessary to adopt some regulations for their own government. Thus, they erected a sort of mercantile repub- lic ; and the observance of their rules is secured, less by the law of the land, than by the force of opinion and the dread of censure. It is this, which protects the American consignor of goods to the remotest agent in some uncivilized seaport of an East Indian island, where law, as enacted by legisla- tion and enforced by judicial sanction and penalty, could give them no remedy against fraud and peculation. In speaking of commercial law, as being the outgrowth and embodiment of the usages, customs and convenience of merchants, I do not mean that all customs and usages are necessarily and of course a part of the law of the land. It is the general, open, notorious, and long-continued cus- toms of merchants, which become in time a part of the law merchant : — no witness would be required to prove siich a cus- tom ; judges and courts take notice of it judicially, i.e., without evidence. In that case, the custom has the force of law. 48 COMMERCIAL LAW. In another case, a custom may be so partial and limited, as to apply to a contract only because it is to be considered a fart of the contract. In the last case, the party setting up the custom, and claiming that it shall govern the construction of his contract, must prove not only that the custom exists, but, that it is so general, so old and well established, and so widely known and recognized, that a jury would believe, a% a matter of fact, that the custom was in tlie minds of the parties at the time they made their contract, and that they made it with reference to the custom. To illustrate : — If parties contract in the English language, they will of course generally be bound by the common mean- ing of the words they used. But, it would be manifestly un- just to permit one of them to bind the other by this common meaning, if it could be shown that they and their neighbors, dealing in such matters, had uniformly and for many years used the same language with a special and different meaning. Thus, in England, a party contracting to leave 1000 rab- bits in a warren was held bound to leave 1200, because it was proved to the satisfaction of the jury that, as to rabbits, 1000 in that neighborhood meant 1200. So, a baker's dozen was at one time thirteen. So, when an employer in New York contracts to pay $3 a day for a certain kind of work, if the workman should labor twelve hours within each twenty- four, and could prove that in that trade and by universal cus- tom ten liours constituted a " day's work," the employer would be obliged to pay $3.60 for such a day's work, i. e., for every twelve hours. So, in some parts of the country a ton is in certain trades, (e. g., coal and iron,) 2240 lbs. In the first case, — i. e., when the custom has the force of law, — suppose I promise you, by my note in writing on the 22d day of March, to pay to you or your order flOOO in EO days from that date : the general law, arising from the com- mon use of language, would decide that the money must be paid (there being 31 days in March) on the 21st of April, — but here a custom, which after ages of acknowledgment and practice has acquired the force of recognized law, comes in, COMMERCIAL LAW. 49 and adds three days to the thirty, — making it payable on the 24th of April. And so completely is this recognized, that the banker, — properly and without exposing himself to the penalties of usury, — adds the three days in discounting the interest for the time it has to i-mi ; and, if the holder should commence a suit or treat it as dishonored, because unpaid, at any time b.efore the close of business hours on the last " day of grace," his notices to estdorsers would be of no value, and his suit would fail andibe dismissed. So, although the technical common law is said to " know no division of a day," the custom of merchants, in computing the time a contract has to run, excludes the day of the date on which a note is given, when it is payable so many days from or after date. 4 CHAPTER III, OP PROPERTY. Property is the subject upon which " ComBiercial Law" operates, and for the acquisition, increase, regulation and transmission of which, all its manifold wisdom has been gathered and built up to its present perfection as a system. The original investiture of man with rights of property and dominion is recorded in Genesis, (ch. i. v. 28), in the Creator's permission and direction, — " replenish the earth and subdue it ; and have dominion over the fish of the sea, and over the fowls of the air, and over every living thing that moveth upon the earth." This divine patent invests mankind, as a race, with all rights of property, and establishes community of ownership, without division and appropriation, except for the temporary purposes of use and enjoyment. But, as soon as distinct families and tribes began to exist, it became inevitable that ideas of more permanent appropriation of the substance of the thing used would be entertained ; and we find among the earliest authentic accounts, special proprietorship claimed in the product of one's labor. " Abraham reproved Abimelech, because of a well of water, which Abimelech's servants had violently taken away," and Abraham made claim to it, and put into the hand of Abimelech seven ewe lambs, as a wit- ness that he " had digged the well." At this time it is quite apparent that the product of the earth was held in common, and the inconvenience began to be felt, as appears by the strife between the herdsmen of Abraliam and the herdsmen of Lot, which caused the separa- tion of those kinsmen, as recorded in the thirteenth chapter of Genesis. OF PROPERTY. 51 The necessities of life, in the nidest conditions of society, compelled men to produce and appropriate for their daily use, food and shelter for themselves and their flocks and herds. Claim to property in the siAstance of that of which one had been appropriating, the continuous use, followed nat- urally ; and to secure that property resort was had to com- pact, and to societies for mutual protection and defence ; out of which grew, in natural sequence, civil society and its train of resulting attendants, — States, governments and laws. Property once vested in one, who is its recognized and un- disputed owner, is still not only subject to the control of the general society, — the State, — in the exercise of its rights of " eminent domain," but, upon the death of the particular owner, becomes again subject to the law of the place in which it is located, if it be real estate ; or in which its mvner had his home, if it be personal property. There is no natural and universally recognized law of " descents and distribu- tion," nor is the right to dispose of one's estate by will uni- versally recognized as a natural right. It is now permitted and regulated by express legislation in all our States ; but in past time, and in different countries, the different lines and courses of descents, and the limitations and restrictions upon the power of a testator, have been curi- ous and interesting. In the absence of a will, the general rule in the United States has always been, that children surviving their parents should inherit equally ; in England, and some of the Euro- pean States, the oldest son is the principal heir. Under our law, no one has an heir while he himself lives ; but in some portions of the Eastern Continent, a son, as soon as he is born, acquires a vested interest in his father's estate, and may say, as the prodigal did, " Father, give me the portion of goods which falleth to me," and may compel him to " di- vide with him his living." The general iisage of the old Germanic peoples forbade alienations without the consent of the male children. Our ancestors seem to have been in this respect excep- tional, for since very early time their positive law has di- 62 OF PROPERTY. rected that estates vest in such person as the last proprietor shall by will, attended with certain specified requisites, appoint. No necessity with us exists for making any provision what- ever for children. The somewhat common impression that something must be given to each child, to prevent him from " breaking the will," probably arises out of the legal rule, that whenever it appears that a child is overlooked or for- gotten by a testator, in the distribution of his estate, the law will supply the omission. A legacy of small value is some- times given to prevent such a supposition, and as the least offensive mode of securing the practical exclusion of the nominal legatee. The law makes two general divisions of property, which are usually distinguished as " things real" and "things per- sonal." " Things real " are such as are permaneht and fixed. — " Things personal " are money, goods, and other movables. Another division is important in a business view, viz. " things in possession " and " things in action." The for- mer embraces all personal property of which one has posses- sion ; while the second includes such as an owner has not in possession, but in which he has a right of action, which, being enforced, will possess hiin of the thing itself, or its equivalent in value. An illustration of the first may be found in the goods of a trader and the cash he receives on its sale ; and of the sec- ond in the charges on his books and his bills receivable. It is inherent in personal property, under American law, that it shall be transmissible, and no act or contract of man - can render it inalienable. " Good will " is an anomalous species of personal property, possessing commei-cial character. This consists in " the probability that the oid customers will resort to the old place," and questions as to its ownership often arise on the dissolution of a partnership. A partner dies : does the good will of the business pass to the surviving partner, or is it a partnership effect, liable, like OF PROPERTY. 53 the goods and accounts and bills receivable, to be accounted ibr ? In professional partnerships, it is generally held to pass to the survivor ; but in mercantile houses it is sometimes of great value, and in some cases, perhaps in all which ad- mit of it, a court of chancery will direct it to be sold, and will restrain the former partners from pursuing a business which would render it valueless to the purchasers. The right to the exclusive use of a particular name or mark upon goods is also recognized as property, in which a man may have valuable interests, and which is protected by courts of chancery. This right can only be acquired by special appropriation and undisturbed enjoyment, and the name or marks must be such as designate the origin or ownership of the article, and not such as indicate quality. A merchant or manufacturer will not be permitted to use the name or trade mark of another, although the user may be ignorant that it has been appropriated and is owned by another. CHAPTER IV. AGENCY. Section 1. G-eneral Views. Much of the business of life must necessarily be carried on by persons, not acting in their own right, but under au- thority derived from others. The exigencies of trade and commerce, the pressure of an extensive business, or of pro- fessional, official, or other engagements, the, existence of per- sonal illness or infirmity, the necessity of transacting business at the same time at various and remote places, and the im- portance of securing accuracy, skill, ability and speed in the accomplishment of the great concerns of human life, must require the aid and assistance and labors of many persons, in addition to the immediate superintendence of him, whose rights and interests are to be directly affected by the results. The theory of our law is, that whatever a man may do of and for himself, he may do by another ; and cor relatively, that what is rightfully and by authority done by another is to be deemed and treated as done by the party himself. Of course one who is under a disability which prevents him from doing an act, in his own right, and for himself, cannot authorize another to do the act for him. He who employs another to act for him is, in common language, known as the Principal, Constituent, or Employer ; and the party employed is usually called an Agent, Attorney, Proxy, or Delegate ; and the relation thus created is termed an Agency. The power delegated is properly called an authority. When the agency is created by writing the instrument is usu- ally called a letter of attorney, but frequently in common speech a power of attorney. AGENCY. 65 Section 2. Who may be Agents? We have remarked that to enable one to be a principal, he must have power to do the act for himself, that is, mnst be under no positive disability, as infancy, outlawry, &c. But it is not necessary for a person to be capable of acting in his or her own right to qualify him to act for another as agent; but infants, married women, persons attainted, or outlawed, may act for others as agents ; and a married wo- man may even act as agent for her husband, and being duly authorized may bind him by her act and contract, though un- der disability to bind herself, by her own contract. So, she may, as the agent of another, enter into a contract with her own husband. Of course persons under natural disability, as idiocy, lu- nacy, (fee, cannot act as agents. An agent cannot delegate his authority to do an act, unless the letter of his authorization specially allows it. It is presumed that special trust and confidence is reposed in him ; and therefore he may not delegate to another the authority, which his principal might not have been willing so to entrust. Thus an executor, real estate agent, factor or broker, has usually a personal trust reposed in him, and may not delegate to another his authority to bhid his principal. There are exceptions to this rule : as, where it is indispen- sable by the laws, in order to accomplish the end ; or where it is understood by the parties to be the mode in which the business entrusted would be done ; as, where goods are to be sold at auction and the law requires that it be done by a licensed auctioneer ; or where by the usage of trade a ship broker is employed by the master, (himself an agent), to procure a freight. !J6 AGENCY. Section 3. Different kinds of Agency. An agency may be general or special. A general agent is one who is authorized to do all things for his principal, or all acts connected with a particular business or employment. There is an important difference between the powers of a general agent and one employed for a special purpose. The acts of a general agent, or one whom a man puts in his place to do all his business, of a particular kind, or at a specified place, will bind his principal so long as he keeps within the general scoj^e of his authority, even when he acts contrary to private instructions ; this rule being necessary to prevent fraud upon third persons, and to encourage confidence in dealing. But an agent appointed for a particular purpose, and imder a limited power, cannot bind his principal if he exceeds that power ; his special authority imxst be strictly pursued. One dealing with such an agent deals at his own risk and peril, if the agent exceeds the limits of liis power ; he should, therefore, call for an exhibit of the letter of authority, and, if he has any doubt that it covers the point in hand, should take advice. If the agent thus exhibits his authority, and pursues the power as shown, the principal is bound, though private in- structions had still further* limited him. This doctrine rests on sound morality. There must be no deception anywhere, and the principal is bound, whenever he clothes his agent with powers calculated to induce third per- sons to believe he had due authority in the given case. If the servant of a horse dealer, having general instruc- tions and power to sell for his employer, but with private in- struction not to warrant as to soundness, does warrant, the employer is bound ; because the servant having general au- thority to sell, acted within the scope of that authority, and the public cannot be supposed to know the private conversa- tion in which he was forbidden to warrant. AGliNCY. 57 Agent is the general designation, or genus. The most com- mon species are Attorneys, Auctioneers, Brokers, Factors, and Masters of Sliips. Attorneys are of two classes ; attorneys in law and attor- neys in fact. The former are a well-known professional class, having charge of causes and matters intrusted to them to be man- aged before judicial tribunals. They have general power to bind their principals (clients) in all matters relating to suits under their charge. An attorney is deemed an ofi&cer of the courts in which he has right to practice. It is his duty, to be true to his client and to the court, to manage the business entrusted to him with caro,^skill and fidelity, to keep his client informed as to the progress of the matters in his hands, and to keep the secrets of his client, confided to him as such. The courts protect this confidence between an attorney and his client, and will not allow matters revealed under its pro- tection to be called out, even upon the witness stand. If an attorney deposit his client's money to his own private account, he is responsible for it if lost. If he deposit it to the account of his client, he is not re- sponsible. If discharged by one party he may pi-operly act for the other ; provided he makes no improper use of information gained in acting for his former client. Like other agents, he is responsible for any carelessness, negligence, or want of reasonable skill in transacting the business entrusted to him. He could not, however, be held responsible for mistakes in doubtful points of law or practice, nor for the fault of coun- sel retained by him. An attorney in fact is, in the broad sense, one who is spe- cially authorized to do any act for another ; but the term is commonly applied to persons authorized to sign the name of a principal,— ras a confidential clerk, who is specially author- ized to sign the name of his employer. 58 AGENCY. An auctioneer is one who is authorized to sell goods at public auction : he is primarily deemed the agent of the sel- ler, but for certain purposes is treated as the agent of both parties. He is so considered in inserting the name of the parties, seller and purchaser, in his book of sales ; and the memoran- dum so made by him will bind both parties, and brings them within the sta4;ute of frauds. An auctioneer has a special property in the goods entrusted to him for ^ale, and may sue for damage done to them ; and he has a lien on them and their proceeds for his commission. He can sell only for ready money, unless there is a usage of trade, in reference to the goods sold, to sell on credit ; and if, in the absence of such usage, he should sell on credit, he would be personally responsible to the principal, whose goods he had sold. A broker is a middle-man engaged in negotiating contracts relative to property. He is the agent of his employer, is not usually entrusted with the possession of the property which he is to sell, and is not authorized to buy or sell in his own name. Like an auctioneer, he is for some purposes deemed the agent of both parties, and may bind them both by signing a contract within the statute of frauds. When employed to buy and sell goods, he gives the buyer a note of the sale, sometimes called a sold note, and to the seller a like note, — called a bought note, — in his own name as agent of each ; and if he haS not exceeded his authority they are each thereby respectively bound. Being primarily the agent of his employer, he of course does not become the agent of the other party, till a contract is settled between tlie principals ; for as a middle-man he is not entrusted to settle and fix the terms, but merely to nego- tiate between the principals. It would be a fraud for him to act for both parties, con- ceaUng his agency for one from the other, in a case where he was intrusted with discretion. AGENCY. 59 As, where one employs him to sell goods foi* tlie highest price he can obtain, and another employs him to buy the same goods for the lowest price for which they can be had ; it is easy to see that if this mutual agency were concealed, it miglit be a surprise upon the confidence of both parties, and would thus be a fraud upon them. Indeed, in this case, as in every other, " it takes two to make a bargain," and the law will not allow any man to be both buyer and seller, where the interests of third persons are concerned. A factor is one who is employed to sell goods consigned or delivered to him, for a commission. He is often called a commission-merchant. He sometimes guarantees payment to his principal, in which case he charges, and is entitled to, additional compensation, called a delcredere commission. Se may ordinarily sell goods on credit, unless there is a usage to the contrary. A factor differs from a broker in several important particu- lars : he may sell in his own name, while a broker may not ; he is entrusted with the custody and disposal of jtlie goods to be sold, while a broker is not ; and he has, like an auction- eer, a special property in the goods, and a lien on them for his expenses and commissions. The character of factor and broker is frequently combined : the broker having possession of what he is employed to sell, or being empowered to obtain possession of what he is em- ployed to purchase. Accurately speaking, he is in such cases a factor. Masters of ships are, in reference to the vessels under their charge, general agents of the owners. The master has tlie care and commaud of the vessel. He must see to everything that relates to her, including her re- pair, loading and unloading, and navigation. His power and authority are co-equal with these broad and general diities. While principally the agent of his owners, he is, to a cer- tain extent, agent of the shipper, of the insurer, and of all whose property is on his vessel. Some of his powers, as agent of the owner, spring from necessity, and of course can be exercised only when a neces- 60 AGENCY. sity arises. He may, in an emergency, sell the ship, or make a bond, — called a bot'.oniry bond, — to pledge her for debt ; he may charter her for a voyage or a term of time ; he may raise money for repairs or incur a debt therefor, and render his owners responsible. If the owner be present in person or by agent, or be within easy access, he has no power to do any of these things, and they are usually done in a foreign port. So, the master, — un- like an ordinary agent, who, as we have seen, has no power of substitution, may, in a case of necessity, substitute another for himself, and the substitute will possess all his powers, and be bound to discharge all his duties; because, in such emergencies, the safety of the ship and of the property in- trusted to him calls for this substitution. His powers, of necessity, are extraordinary, and not meas- ured by the usual limitations and rules, which govern ordin- ary cases of agency, but are analogous to the broad and un- defined war-powers of a government, — where, as we have said, "The safety of the State is the Supreme Law." The powers of a master are of course confined within the scope of his business, and contuiue only during his employ- ment as master. Section 4. Appointment of Agents. The appointment of an agent may be oral or in writing; and under such an appointment he may bind his principal in all matters within the scope of his agency, by contracts, oral or in writing. A parol (unsealed) authority will authorize a parol con- tract, and an oral (unwritten) authority will warrant a writ- 't^i exercise of it, but not to execute an instrument under seal. To execute a sealed instrument, the party acting must have a sealed power or authority ; and where an instrument should be acknowledged and recorded, — as a deed of real estate, — the authorizing instrument should be executed with the same formalities. AGENCY. 61 The authority of an agent is sometimes presumed, on the ground that tlie principal lias given probable cause to pre- sume that he has given such authority : a^, if one is repeat- edly employed or permitted to do certain things, — a wife or a son, to sign bills or receipts, or a servant to make purchases or sales, — in 'such cases, those dealing with ths person thus usually employed are justified in believing him authorized to act for his master or employer, in the same way he has acted, but not otherwise ; — as, if a servant often and usually buys for his master, but always for cash, this would not justify a pre- sumption that he was authorized to buy on credit. • An agency may be confirmed and the principal bound, where there is no prior authorization, by subsequent adop- tion and ratification. Such adoption, to bind the principal, must be made by him with full knowledge, or, at least, opportunity of knowledge, of all the material facts and circumstances. Generally, when one receives and retains the avails or ad- vantages of the act done, he is not permitted to deny the agency. K one, knowing that another has acted as his agent, does not disavow the autliority as soon as he conveniently can, but lies by and permits persons to go on and deal with the supposed agent, this is an adoption and ratification. If a person acting as agent makes a sale, not previously authorized, and the principal ratifies it, he thereby ratifies such representations or warranties as the agent made; he cannot ratify in part and repudiate in part. There cannot be a ratification of an act by one who did not authorize it, if thereby he creates a duty on the part of another or a claim of damages against him. One cannot ratify an unauthorized demand of money and ground a suit upon it, or defeat a tender, whicli had been made : to accomplish this result he must have authorized such demand before it was made. A party may ratify an act done for him, at any time while he might still do it as principal, but not afterwards. For example, a seller of goods may stop them while on 62 AGENCY. the route for delivery, if the purchaser has become insolvent; this he may of course do by an agent, and if a friend, know- ing the facts, should stop them for the seller, he may ratify this and make it good at any time, while he might himself stop them, — that is, at any time before they are delivered. Section 5. Dxtent, Execution, and Duration of Authority. The extent of an authority is to be gathered from the com- mission by which it is given, the meaning and construction of which may always be aided by referring to the usages of the trade to which it relates. An authorization of agency empowers the agent to bind his principal by all acts fairly within the limits and scope of his authority, no matter what may have been his private in- structions, not communicated by the agent to the party with whom he deals. Strangers have a right to be governed (as we have seen) by the known acts of the parties, and not by private conver- sations or communications between a principal and his agent. In the execution of his authority, an agent must act in the name, as well as on behalf, of his principal. A deed, or writing, must be executed in the principal's name ; but it is not very material what precise form is used, whetlier it be "/or John Jones, Simon Johnson," or "John Jones by Simon Johnson his Attorney," or " Simon Johnson, Attorney for John Jones." The instrument should be in the name of, and shoiild be set forth in its body as the act of the principal ; the agent should not say, " This agreement, made by Simon Johnson as agent of John Jones," — but, "This agreement made by John Jones," — and then the execution, as is above indicated, is a sufficient setting forth, that it is done by agency. Contracts and conveyances made by agents in proper form are the contracts of the principals, and are as obligatory in every respect as if made by themselves personally. If made by an authorized agent, but in terms which do not bind the principal, they sometimes bind the agent. AGENCY. 63 So, if made by one who assumes to act as agent, but is not duly authorized, they usually bind him personally. But it does not always follow that a contract which fails to bind the principal, whether made by a duly authorized agent who fails to execute properly, or by one who wrongly assumes to act as such, does therefore render the person who made it, answerable for its performance. The questions arising out of this class of imperfect contracts are some- times of difficult solution. The following principles have been given as guides, by an eminent judicial authority. First. If a duly authorized agent uses such terms as legally import an undertaking by the principal only, the con- tract is that of the principal, and he alone is the party by whom it is to be performed. " Second. If a person, assuming to act as agent, uses such terms as legally import a personal undertaking, by himself, and not by the principal, the contract is his, and not that of the principal, and he alone is to perform it. In such case it is immaterial whether he was or was not authorized to act as agent." " Third. If one, who is not duly authorized to act as agent, assumes to act as such, and uses such terms as legally import the undertaking of the principal only, the contract is void." These rules are sufficiently plain in their statement ; but the questions arising out of the discussion what terms, used in a contract made by an agent, do or do not bind the prin- cipal, or import the sole undertaking of the agent, are nu- merous and troublesome, and cannot properly be exhaust- ively discussed in this book of general principles. They are ably treated and considered in Story on Agency, ch. 7, Mei> calf on Contracts, pp. 108, 109, in 2 Kent's Commentaries, (11th Edition) 840, and the cases referred to in the notes of those authors. The third rule has not been always sustained, but in many cases the agent has been held responsible, under the circumstances there named, to perforin the contract. G4 AGENCY. In the more recent and, as I think, better considered cases, it has been held, as there stated, that the contract is void ; and that the remedy of the party deceived and injured by it is by action against the party wrongly assuming to act as agent, to recover damages for the failure of the contract. There are various methods of terminating an agency. Revocation, or withdrawal of the power conferred, is always at the will of the principal, unless the power is coupled with an interest, — as where one gives a person power to sell goods and apply the proceeds to his own benefit ; or the common case (in some States) of a mortgage with power of sale in the mortgagee ; or, if it be given for money paid, or other valuable consideration, — then, if the continuance of the power is necessary to make the interest of the agent in the proceeds available, it cannot be recalled at the pleasure of the principal, and would even enure to the agent after the death of the principal. Death of the principal, or his insanity, or, if the principal be a single woman, her becoming married, would each amount to a revocation. It may, of course, be terminated by its own limitation, ex- press or implied. It is express, when the power covers only a specified period of time. It is implied, when the business is completed. If you au- thorize an agent to sell your crop of apples, it is quite mani- fest that the agency terminates, by necessary implication, when the apples are all sold. So, an implied termination would result from such change in the condition of the prin- cipal as would render its continuance impossible or improper, as the bankruptcy of the prinpipal, when the agency author- izes the disposal of or dealing with the property of the prin- cipal, insanity of the principal, or the marriage of a female principal. In the case of insanity, the existence of the insane condi- tion should be established by proper proceedings before the operation of the power is suspended. AGENCY. 65 So, similar changes in the condition of the agent "n'onld work an impKed revocation of the agency. Renunciation by the agent, with notice to the principal, also terminates the agency ; and, without notice, sucli renun- ciation and refusal to act would necessarily terminate the agency ; but, if he should omit to give notice to his principal, he should "be held liable to his principal for such damages as may result from want of notice. The sudden termination of an agency by the death of the principal is sometimes productive of serious inconvenience ; as, where the principal is in a distant country and no tele- graphic communication can be had, — then, if a party is sup- plying the wants and calls of an agent, as a wife or a son, on the credit of the principal, it may be months before no- tice is received. ^lio is responsible? The question has not received a uniform answer; in some cases it has been held that the party supplying the agent has no remedy, except in the sense of justice of the party supplied, inducing, where there is the ability, a voluntary payment. The executor is held not liable, as he is liable only for the contracts and obliga- tions of his testator, and the agency being revoked by the death of the testator never became liable. In other cases the more convenient doctrine has been held, that the revo- cation resulting from the death of the principal, — like an express revocation made in the life time of the principal, — takes effect only from the time of notice. Section 6. Ihities of an Agent. Tlie agent is reqtiired to exercise, in the business entrusted to him, the same degree of care and skill which men, capable of properly transacting such business, bestow upon it when doing it on their own account. Tlie principal is ordinarily entitled to all the skill which the agent has, if it be a professional, mechanical or artistic employment ; and it is, of course, the duty of the agent to bestow it. 66 AGENCY. He is bound to follow instructions, and his liability, if he deviates, is, as in the case of negligence ov misconduct, meas- ured and limited only by the extent of the damage sustained by the principal. Section 7. ' lAahilities of the Principal. The principal, as we have seen, is considered as doing whatever is by his authority done by his agent. It follows, necessarily, that the principal is liable for the negligence or unskillfulness of his agent, while prosecuting the business of his agency, although not under his personal supervision or direction. The material enquiry is, was the agent acting in the course of his employment ? If an agent or servant, while driving the team of his prin- cipal, upon his principal's business, by negligence injures an- other, the principal is liable for the damage. But, if without leave, and on his own business, he be driv- ing the team of his principal, and by carelessness inflict in- jury, the servant alone is responsible. It used to be held, that a principal was liable for the acts and neglects of all sub-agents and under employees, deriving their employment, however remotely, from him or his imme- diate agent : it is not generally so held now, but the liability is confined to the immediate employee of the principal or his agent. A principal is not liable for the ivilful acts and torts of his agent : as, if a servant wilfully drives his master's carriage against another's person or property, without the direction of his principal ; the servant alone is liable. The principal will, however, bo clearly liable for torts whenever he has directed them, or given orders which could not be executed without their commission. We have seen that the agent may bind his principal by a proper contract. He may also buy for an undisclosed princi- pal, and then, when discovered, the vendor may charge either principal or agent ; subject, however, to this limitation, that AGENCY. 67 when credit has been given to the agent, the principal being undisclosed, and any settlement has been made between the principal and agent ; or when the seller, after discovering the principal, lies by, and does not seek Avithin a reasonaljlc time to render him liable, or to make claim upon him, he is estopped to claim of the principal, or, at least, his claim must be subject to such equities as have fairly arisen between the principal and agent. So, when an agent sells as if he were owner, for an undis- closed principal, the principal may collect the proceeds of the sale, subject also, in this case, to the equities of the pur- chaser, arising out of payments to the agent, without notice, and in good faith. 1. General Fobm op Letter op Attorney. I, John Jones, of Hartford, in the State of Connecticut, hereby appoint James Simons, of said Hartford, my attorney, for me and in my name, to [here describe in plain and simple terms, whatever is to be done], hereby authorizing whatever my said attorney shall lawfully do in the premises. Witness my hand this 5th day of December, A. D. 1S>38. JOHN JONES. I^If the thing to be done be the conveyance of land, or anything else requiring a seal, say : " Witness my hand and seal,'' and add a seal. And if the instrument will need to be witnessed or acknowledged, let tlie ^^ power " be Avitnesscd and acknowledged before a proper magistrate]. [A copy of a letter of attorney should always be kept by the principal, for convenience of reference, and of revocation, if it should become desirable]. 2. Power op Attorney to sell Stock. " I, A. B., of , do hereby appoint, irrevocably, C. D., of , my true and lawful attorney, [with power of sub- stitution], for me and in my name, to sell, assign, and trans- 68 AGENCY. fer, unto any person or persons whatsoever, shares now standing in my name, upon the stock-books of the Railroad. Witness my hand, this day of , A. D. 18 . A. B. Executed in presence of If special confidence is reposed in the appointee named, and it is riot desired that he shall have power to appoint a siibstitute, leave out the words in brackets. If the power of substitution is inserted, (as in brackets), and the appointee desires to exercise that power, he may write upon the margin or back of the instrument as follows : 3. " Substitution." I hereby irrevocably appoint E. P. as my substitute, to ex- ercise the powers herein conferred upon me. Witness my hand, this day of . A. D. 18 . C. D. Executed in presence of 4. " Proxy " to Yotb foe Directors. I, A. B., of , do appoint C. D., of , to be my proxy, for me and in my name, to vote at any election of directors (or trustees) of the , in the choice of directs ors, and upon all matters which at any regular meeting of the stockholders may properly come before them. Witness my hand, this day of , A. D. 18 . Signed in presence of A. B. If the principal desires only to confer power to vote at a single specified meeting, or to confine the power to voting in choice of directors, the power should, of course, be so re- stricted. 5. Power to Receive Dividends. Pay to A. B., of , all dividends due on all shares of your stock standing in my name. CD. To cashier [or treasurer] of Bank, [or Railroad, or other corporation] . H , Jan. 1st, 186 . AGENCY. 69 If it is desired to make the order a continuing one, insert after tlic word " due," the words, " or to become due." 6. Power op Attorney to Sell or Lease Lands. I, A. B., of , in the State of , liereby consti- tute and appoint C. D., of said , my attorney, for me and in my name, to sell and convey to any person or persons, the estate known as , and situate in said , and bounded and described as follows, to wit:* [Here in- sert the boundaries, or, if in a city, the number and street, or other description], and for me and in my name, to make out, execute, acknowledge and deliver, proper deeds of con- veyance of the same, with or without covenants of seizin, freedom from encumbrance, and warranty ; and I hereby ratify and confirm all acts lawfully done for me in the prem- ises. Witness my hand and seal, this day of , A. D. 18 . Executed in presence of A. B. [l. s.J (2 witnesses in most of the States). (_To be acknowledged). 7. Warranty Deed Executed by Attorney. Know all men by these presents. That I, A. B., of , in the State of , in consideration of dollars, to me paid by C. D., of , in the State of , the re- ceipt whereof is hereby acknowledged, do hereby grant, sell and convey to the said CD., and his heirs and assigns, a parcel of land situated in , bounded and described as follows, vis. : [Here insert descriptions, and boundaries] , with all the privileges and appurtenances thereto belong- ing. (1). To have and to hold the said premises [subject as afore- said], to the said C. D., and his heirs and assigns, to his and their use and behoof forever. [Here insert such cove- «If the land is to be leased, say (" and until the sale, to execute leases of said estate, in the whole or in parts thereof, and receive rents therefor, and receipt for the same in my name.") 70 AGENCY. nants (if any) as the grantor desires to enter into ; carefully noting all exceptions and reservations, as in the form of Warranty Deed at the close of the chapter on " Conveyance of Eeal Estate"]. At the close of the covenants, or if no covenants are in- serted, after the word " forever," say : In witness whereof, the said A. B,, grantor, has hereto set his hand and seal, this day of , A. D. 18 , by C. D., his attorney, duly thereto authorized by letter of at- torney recorded herewith. A B Tl s 1 ' Signed, sealed and delivered in presence of By C. D., his Att'y. (2 witnesses in most of the States) . For acknowledgement, see post, — General form of Deed, — inserting, however, instead of ^'■personally appeared," &c., the words, " Then A. B., the above named grantor, appeared by C. D., his attorney, and acknowledged the above instru- ment to be the said A. B's free act and deed," &c. (1). Here insert any exceptions or reservations as sug- gested in general form of Warranty Deed." If the grantor is married, his wife has, in some States, rights of dower in all lands of which the husband is possessed at any time during their joint lives, and also, in some States, rights of homestead in an estate occupied as a homestead. In such States, releases should be made by the wife, by a clause inserted in the witnessing clause, thus : " In witness whereof, the said A. B., grantor," &c., and after "herewith" insert, and E. P., wife of said A. B., also hereto sets her hand and seal, in token of her grant and re- lease to said 0. D., of all rights of dower and homestead in said estate. 8. Eetocation op a Power op Attoenet. Whereas I, A. B. , of , in and by my letter of attor- ney, dated the day of , A. D. 18 , did appoint C. D., of , my attorney, for me and in my name to [here insert the business to be done, in the language of the AGENCY. 71 letter of attorney] , as by said letter of attorney will appear : now know all persons, that I, thesaid A. B., do hereby revoke and annnl the said letter of attorney and all power thereby gi\-en to the said C. D. In witness whereof I hereto set my hand [if the letter of attorney was sealed, add the words " and seal"]. Executed in the presence of A. B. [l. s.] CHAPTER V. AGREEMENT OB CONTRACT. Section 1. — General Outlines and Principles. , Nearly all the business transactions of life have some re- lation to contracts. A large proportion of the wealth of every man consists in contracts. Our present currency, — including that which may legally be tendered in payment of debts, — is chiefly made up of bank notes and government promises to pay. The general outlines and foundation principles of the law of contracts should, therefore, be in the mind of every man who undertakes to do business for himself or otliers. There are various definitions of a contract, and from a large number I have selected one given by the late Chief Jus- tice Marshall, as sufficiently accurate for our purposes. He says, " A contract is an agreement, in which a party under- takes to do or not to do a particular thing." To make it valid and binding in law, three things are re- quisite : 1. It must be made upon suificient consideration. 2. The parties must be competent to contract, and 3. The subject-^maiter of the contract must be of such a nature that the law will protect and enforce it : i. e., it must not be immoral, impolitic, fraudulent or illegal. The remedy, which one party has in case of non-perform- ance by the other party, is two-fold : 1. By a suit at law, he may in all cases recover damages. 2. By a suit in chancery he may, in some cases, compel the party specifically to perform his agreement. agreement ok contract. 73 Section 2. Of the Consideration. The first element, which distinguishes a contract, in legal contemplation, from a mere naked promise, is sufficient consid- eration. What is a sufficient consideration is sometimes a question of some difficulty ; and here we must be careful not to con- foiind a consideration with an equivalent. Tlie law does not require that a consideration shall be equal in value to the service or article contracted for, nor does it require that it shall accrue to, or benefit the contractor. It is sufficient, in a contract between you and me, that something be done or suffered on your part, as the basis or consideration of my promise or undertaking. The idea is somewhat common that this something, to be done or suffered, should be such, that by it I gain or you lose pecuniarily, — as work done, goods sold, money paid, &c., — but sometimes a moral obligation is sufficient ; for example, if one contract a debt in infancy, — i. e., before he is twenty- one years old, — ^lie is not legally bound to pay it, iiulci-s it be for necessaries suitable to his degree in life, but if, after he comes to manhood, he without new consideration promise to pay the debt, the moral obligation under which he rested is deemed sufficient to support the promise. To illustrate the suggestion that the consideration need not be beneficial to the party contracting : suppose the members of a literary society should request "A" to deliver a course of lectures to them. "A" promises to do so, ^^'ithout requir- ing anything in payment or consideration therefor. If this is all, "A" is under only a moral obligation to perform; but the law does not, in this instance, enforce a mere moral obli- gation ; the difference between this and the case before men- tioned of the contract during infancy, ratified after majority is attained, being, that in the one case a real and valuable consideration once passed from the promisee : in the other case, " A" receives nothing, and the society do nothing, and promise nothing. 74 AGREEMENT OR CONTRACT. Now, if the society merely agree that they will give notice of the meetings, and engage rooms, and advertise, — " A " is bound to perform his promise ; because the society has parted witli something, or done something; and that is sufficient consideration, so that "A" may be compelled to perform his promise or pay damages. Marriage, though not necessarily a valuable consideration pecuniarily , and not always a moral one, is a sufficient con- sideration to support a promise predicated upon it ; and the promise of an infant, to marry one of full age, — while it can- not be enforced against the infant, — ^is a sufficient considera- tion for the promise of the other party, and performance or damages can be enforced against the one of full age. A naked promise to give anything is not legally binding, and cannot be enforced ; but when the gift is perfected by delivery, it is irrevocable. ^ I have spoken of simple (i. e., unsealed) contracts, and have stated that tliey must rest upon sufficient consideration. Now, as to contracts under seal and delivered, (as deeds, &c.,) the law conclusively presumes a consideration in most if not all the States. For example, suppose I promise Mr. B. that I will pay the debt which S. owes him. I give him a written promise in these words : " I, P. C, promise A- B., that I will pay him the debt due liim from John Smith, amounting to $400. F. C." This promise is void in law, because I have received no considera- tion for it ; and tlie law leaves that class of contracts to rest upon tlie moral sentiments and principles of the promisor. Now let me add a seal to that . promise, and deliver it to Mr. Brown as my deed, and it becomes a covenant, which I may not fail to perform, and upon which an action will be sustained, if I refuse. There is no difference in principle between the two con- tracts, but the convenience of men required that they should sometimes make a contract, without consideration, from which the promisor should not be able to recede, and the for- mality attending the sealing and delivery of the covenant renders it less likely that I have been hasty or inconsiderate AGREEMENT OR CONTRACT. 75 about it, than iu the case where I have merely signed my name. The law, therefore, recognizing the pains I have been at to seal and deliver my contract, raises a conclusive presumption that I liave received sufficient considei'ation for it, and will not allow me to dispute or disprove this presumption, unless wliere there has been in fact a consideration which is illegal, immoral, obtained under duress, — i. e., by false imprisonment or i-estraint, — or by fraud. Everv deed or covenant, however carefully executed, and with whatever solemnities it may be guarded, may bo invali- dated by such circumstances. If this were not so, deeds and covenants might be iiscd to cover up and reward every species of iniquity, to bind a party to pay gambling debts, or to pay for committing any species of crime. Negotiable paper, in the hands of third parties without notice, is also protected by the legal rule, that a want of con- sideration cannot be alleged against them. Implied Contracts. The law of implied contracts rests on high moral grounds, and, as held and sustained in our courts, is eminently satis- factory to a just and upright mind. The general principle which governs is this : Every man is presumed to have agreed to do whatever the law requires him to do ; if, therefore, without special contract, his acts are of such a character as to create a legal liability, he is pre- sumed to have contracted to discharge that liability, and is as much bound to do it as if he had expressed an agreement to that effect in words. The common instances in daily life are, where one with my consent or at my request has performed work for me, without express agreement as to compensation, I am lield, in law, to have contracted (impliedly) to pay him, (not whatever he asks, or whatever I please, but) what it is fairly and reason- ably worth. If you have occupied my house for a year, with- out special agreement as to price of rent, you are to pay me 76 AGREEMENT OK CONTRACT, what the rent is fairly and reasonably worth ; and neither of us is to fix a price by our own arbitrary will or discretion. If you and I settle and agree upon a balance due you, I am presumed to have contracted to pay it. If I borrow money and say no word as to payment, I am presumed to have contracted to repay it on demand. If I lend you property, you are presumed to have agreed to use it with reasonable care. If I employ you to transact business for me, which calls for cai'e and skill, you are under an implied contract to apply such care and skill. If you hold in your hands money or other property re- ceived from me or any other person, which on principles of justice and right ought to be delivered to me, you ai-e under an implied contract to deliver it to me. The common law, under which we live, is flexible, and adapts itself so completely to the necessities and new phases of business, that it is the boast of its professors, that for every wrong it furnishes a remedy ; and a large proportion of its remedies are worked out through this doctrine of implied contracts. Contracts of Record, are also capable of being enforced without special consideration, but they are so little used at this day in the affairs of private individuals, or in commer- cial transactions, that I shall notice them quite briefly. At an early period of the common law, in England,- " Statutes Merchant," and " Statutes Staple," both of which were con- tracts of record for the payment of debts, were in common use. One of these statutes was passed in 1284, and the other in 1354. The object of both was, to enable traders to secure debts, acJmowledged to be due, by taking possession of the debtor's land and appropriating the profits till the debts were satisfied. We have had nothing precisely like these contracts, in this country; but the estates created by them were quite analogous to the mortgagee's interest in an estate Created by deed of mortgage. Tlie only contract by matter of record, common in this AGREEMENT ON CONTRACT. 77 country, is a contract by recognizance; the most familiar in- stance of which is, where a plaintiff, or a party for him, " 1'e.cognizes " for costs, which may become due to the d9fend- ant if the suit fails to be sustained. There are also numerous instances of contracts by recog- nizance between the citizen and the State ; as, where one is surety for the appearance of a criminal, or recognizes for his own appearance as a witness. The form of this contract is simply an acknowledgement of conditional indebtedness, before some competent authority. For example : You are requested to recognize for costs, in behalf of a friend living out of the State, who desires to be- come plaintiff in a civil suit. You go before the person who is to sign the writ or other precept, and he says to you, "You acknowledge yourself indebted to the defendant in this suit in the sum of $100, payable to the defendant on de- mand, if the plaintiff shall fail to prosecute this suit to effect," — or, "shall fail to pay such costs as the defendant shall recover of him." You simply assent, — or do not dissent, — you take no oath, — you do not raise your hand, or even, necessarily, open your mouth ; and yet you have conclusively bound yourself by a contract, which may be enforced against your person or estate, upon no other pi'oof than tlie mere certificate of the magistrate. • Section 3. Of the Parties to Contracts. The general rule is, that all persons are capable of con- tracting, and he who seeks relief from his contract on the ground of any incapacity must prove that he is incapable ; i.e. the burden is on him. Tlie idea of a contract necessarily includes an assent of minds. The term agreement, synonymous with contract, is from " Aggregatio mentium," which expresses this idea. The homely proverb, " it takes two to make a bargaui," is 78 AGREEMENT OR CONTRACT. quite accurate, and both of the parties must be capable of giving an intelligent assent. Now a want of capacity may arise from actual and perma- nent destitution, or from constraint. Insaae persons, drunkards, infants, married women, — un- less enabled by special statute, as they are in many of the States,-^and persons under duress, are all, totally or partially, disabled to contract. Alien enemies are also disabled, on grounds of public policy. Who then are disabled ? First. Insane persons. They cannot make a valid and binding contract, and usually have their affairs placed in the hands of a guardian. Insanity, like every other disability, must be proved; all persons being presumed sane till the contrary is satisfactorily shown ; but when once proved in- sane, they are presumed to continue so, till the contrary is proved, — i. e. things are presumed to continue as they were. In the old time, insanity was no defence to a contract, — upon the absurd ground, that no man should be permitted to stultify himself, — i. e. to set up the defence of insanity, — to allege their own folly. That absurdity is now exploded. The contracts of an insane man are only voidable, and may be ratified after the insanity has ceased. In idiocy, the test is, incapacity to act iinderstandingly in the ordinary affairs of life. Mere mental imbecility or ijife- riority, not i-eaching this point, will not be deemed sufficient to invalidate a contract fairly made. Second. Drunkards used to be held liable to perform their contracts, unless the intoxication was procured by the party contracting with them ; but the general rule now is, that a contract made by a person so drunk as not to have common sense and reason is void ; even though the intoxica- tion was voluntary and no fraud is found. It is difficult to see how it could ever have been held otherwise, consistently with the idea, that there must be an intelligently assenting mind. Third. Infants are only under partial disability. They may contract for necessaries suitable for their condition, for- AGREEMENT OR CONTRACT. 79 tunc and station in life. Tliey are hound by such contracts, and their otlier contracts arc -not void, but only voidable; that is, they may be assented to or ratified after they attain full age, and thereby made binding; and if not dissented from, in a reasonable time after they attain majority, they may be held to have ratified them when they retain tlie con- sideration. The disability arising from infancy is deemed a protection and privilege, and is personal to the infant; the other party cannot take advantage of it. One who would bargain in reference to the property of an infant should therefore, in common prudence, deal with a guardian; as, otherwise, the advantage is allo\\\\K side. If the contract is beneficial to him, he may, when of age, affirm it and reap its advantages ; while, if predjudicial, he may disaffirm it and escape its burdens. As to the real estate of infants, they cannot convey at all, nor can their guardians, except with leave and under direc- tion of the proper court. Fourth. Married Women, as a general rule, in tlie ab- sence of express legislation, are entiiely disqualified in law to make contracts. At common law their contracts are held void to all intents and purposes, and even when living sepa- rately from their husbands, they could not bind themselves for necessaries ; but their husbands are made liable to fur- nish them a home, with necessaries for their comfortable sup- port, and, if this is neglected, a wife has right to pledge the credit of her husband for such things as she may need. But the rights and liabilities of husbands and wives have been greatly altered by statute, in the United States. A married woman is now by statute provisions in most of the States, permitted to hold her property and earnings to her separate use, and to make such disposal of them by will as she may see fit. Illinois begaii the work of changing the provisions and doctrines of the common law as it affected married women ; and a majority of the States have fol- lowed her lead. Massachusetts commenced, in 1845, a scries of enactments, which are revised and collected in the 80 ASREBMENT OR CONTRACT. General Statutes of that State, (1860.) Under that legisla- tion all property of a married woman, both real and personal, and the rents, issues and profits thereof, are to be and remain her sole and separate property, notwithstanding the marriage ; may be used, collected and invested in her own name, and are not subject to the control of her husband, or liable for his debts. A married woman may bargain, sell and convey her separate estate, may enter into contracts in reference to it, may perform any labor or service on her sole and separate account, and sue and be sued in all matters having relation to her separate property, business, trade, services, labor and earnings, as if she were unmarried ; subject to certain re- strictions if the conveyance be of shares in a corporation, or real estate. She may have a trustee appointed on her own petition, if she desires it. Her contracts do not bind her husband or his property, but bind her and her estate as if she was single. Her estate is not liable to be taken for his debts, but she may be sued for debts contracted before or after her marriage, and her property may be taken as if she was un- marriisd. A husband is not liable (if married after June 3d, 1855), for a debt of his wife's which originated against her before marriage. She may make a will of real and personal estate, but may not thereby deprive her husband of more than one-half of her personal property without his consent. In New York, changes from the common law rule, equally great and radical, have been made, and the present statute law is as to property much the same as in Massachusetts. In New York, a married woman is, by statute, also made joint guardian with her husband of their children, with equal pow- ers, rights and duties, in reference to them. At the death of the husband or wife, leaving no minor child, the survi\-or holds' a life estate in one-third of all tjie realty of which tl>e husband or wife dies possessed, and if there are minor chil- dren, the survivor holds all the estate of which the deceased died seized, and all the profits thereof during the minority of the youngest child ; and one-third during his or her natural life. In New Hampshire, parties may contract before marriage, AGREEMENT OR CONTRACT. 81 that the wife shall hold all her estate, real and personal, to her own use, but as to real estate, it .must be recorded. Property devised or conveyed to a married woman is held to her separate use, as also any estate conveyed to her use by deed of trust, made before or after marriage. In Alabama and Connecticut, the law as to the estate of married women is much the same as in Massachusetts, the principal difference being that in those States the husband has charge as trustee of the property of his wife, and has right to the income thereof, but it is not liable for his debts except such as have been contracted on account of his wife and cliildren. In most of the States, similar statutes have been adopted, and the present state of the law in each State of the Union has been carefully collated from their statutes, and may be found in the Appendix. This will be found convenient for general reference, but as statute law is liable to be often changed, it will be prudent for parties, before acting in any important matter, to take advice as to the then present state of the local law. It remains only to speak of persons under duress, and of aliens. There have been many troublesome cases, and the question is sometimes a nice one : what constitutes duress ? but it is sufficient here and for our purpose to say, that if a contract be made under a reasonable apprehension of violence or con- straint, which really acts upon and affects the mind of a con-, trading party, it will not be binding ; because there is not free mental action, not a real assent of the mind. As to aliens, the theory is, that while two nations are at war, all the individuals belonging to the nation are at war with each other ; they are, therefore, prohibited from trading, and all mercantile contracts made during such a war are void. This is the theory, but it is not true that an alien enemy resident in the country, not ordered away -by the proper authorities, is really included in the list of alien ene- mies : he may practically sue and be sued as in peace ; and the theory, that when two nations are at war all the individ- 6 82 AGREEMENT OR CONTRACT. uals composing both nations are at war with each other, is quite at variance with the actual condition of things, in these days of modern and Cliristian civilization. Section 4. Subject-Matter of Contracts. It is generally true that competent parties may contract aboiit anything whatsoever, as they may choose ; but, like most general rules, this has its exceptions, founded on rea- sons of public law and policy. For example : the law will not sustain any contract, which its expounders and final in- terpreters deem prejudicial to the public' interest. I have already named four classes of contracts which arc on this ground held invalid, viz : those that are immoral, ille- gal, impolitic or fraudulent. An example of an immoral contract would be one stipu- lating for the making or disposal of indecent books or pic- tures, or for any sort of indecency or crime ; contracts of a betting or gambling nature ; -and many others, which every man's knowledge of life, and its business and contracts, will suggest. Here it is proper to say, that the law does not profess to regulate morals, but conduct ; and, therefore, the immorality, which makes a contract void, must be of a clear and expressed type ; for on nice points, and upon doubtful questions, parties .are left to their own moral sense, and to the restraining influ- ences of society, of good citizens, and of religion. Contracts against Public Policy. This is a sufficient ground for courts to refuse to enforce a contract. For example, it is for the good of society that marriage should be unrestrained and free ; and, therefore, any contract in restraint (general restraint, of course, and not restraint as to a particular person) of marriage is void. If a legacy bo left by a father to a child, on the condition that the child (never having been married) should remain , AGREEMENT OR CONTRACT. 83 single, tliG condition would be treated as void, and the legacy take oifect unconditionally. It is also for the interest of society, that trade should be encouraged, and that every man should follow his own calling ; and, therefore, if I buy out a mechanic or a physician, and, as a part of the consideration for which I pay the purchase money, it is stipulated that the one shall not pursue his trade, or the other practice his profession, such a stipulation, being general and applicable to all time and all places, is simply void ; be- cause it is for the interest of society that the services of both of these parties, in a line in which they are skilled, shall be continued to the world. Of course, this does not prohibit me from binding them not to do business within such reasonable limits as would inter- fere with the trade or practice, of which I have purchased the " good will." By illegal contracts, I do not mean those which lack in their form some essential element, which constitutes a legal con- tract, but those which stipulate for something which the law prohibits. They differ from immoral contracts, because these might be, — ^but for a statute prohibition, — contracts most fit and suit- able to be made. For example, in a time when money is worth in the mar- ket two per cent, a month, a statute may make a contract, which stipidates for more than six per cent, per annum, abso- lutely illegal and void. Fraudulent Contracts. It is a general rule, that fraud vitiates every contract into which it enters ; and this rule is enforced equally at law and in equity. Fraud is any kind of artifice, trick, dissembling or misrep- resentation, by which parties are cheated and deceived. The law requires that when parties are about entering into a contract, neither shall misrepresent any material matter, which would mislead the other party Misrepresentation and concealment differ quite materially. 84 AGREEMENT OR CONTRACT. Intentional misrepresentation is always fraudulent. But there may be intentional concealment, which is not fraudulent. It is sometimes difficult to determine what kind or extent of knowledge a contracting party may keep to himself. It is quite certain that the law does not undertake to make all men equal ; or to compel him, who by superior skill or industry has obtained information whicla is valuable, and which, by the exercise of reasonable diligence, is equally open to the other party, to communicate it. While if he has information, which the other party cannot have, of a latent defect, or of extraneous matters, which would materially af- fect the value of the subject of contract, he is bound to dis- close it. Suppose I am negotiating for your farm : both of us exam- ine it ; from long acquaintance with it, you are presumed to know more about it than I, but in point of fact I have dis- covered a gold mine upon it, of which you have no knowledge. If I practice any, — the slightest, — artifi'ce to cover or conceal, it, or in any way prevent it from coming to your knowledge, I am guilty of fi-aud, which will vitiate my contract of pur- cliase : but if I leave everything as it was, make no misrep- resentation, and answer fairly all questions which are asked, I am not legally bound to commiinicate the fruit of my su- perior diligence. The seller may, if he chooses, enquire whether I know of anything not known to him, which in- creases the value of the subject of sale, and then, if I mis- represent, I am guilty of fraiid ; but if he chooses to trust his own knowledge, — whatever may be required in the forum of conscience, — it is not a fraud, in law or in fact, for me to rely upon my skill and knowledge, and leave him to his. Statute of Frauds. Contracts are also affected, and some contracts are de- clared void, by a statute called the Statute of Frauds. This statute, enacted originally in England, in the 13th year of the reign of Elizabeth, and modified and extended in AGREEMENT OR CONTRACT. 85 the 27th year of her reign, and in the 29th of Ciiarles II., was designed to prevent frauds and perjuries by parties who, induced by important interests, might be led to manufacture, or materially change and alter, parol contracts relating to certain subjects. It is still in force in England, and has been substantially copied by most, if not all, of the States of our Union. Its provisions are substantially as follows : " That no suit in law or equity shall be brought or maintained, whereby to charge," First, " Any executor or administrator, upon any promise to answer in damages out of his own estate : " or Sec- ond, " any pei-son upon a promise to answer for the debt, de- fault or miscarriage of another : " or Third, " to charge any person upon an agreement made in consideration of marriage .■" or Fourth, " upon any contract for the sale of lands, or of any interest in them :" or Fifth, " upon any agreement not to he performed within one year from the making thereof : unless the contract, or some memorandum thereof, should be in writing, and signed by the party to be charged therewith." It will he readily seen that these are contracts, either of such nature that parties would be unusually liable to misun- derstand or misrepresent them, — for example, those relating to personal obligation of an executor, or suretyship for a third person, or in consideration of marriage, — or else im- portant contracts, as those which relate to real estate usually are, or, finally, having such time to run, as would render parties liable to forget, or misremember and misrepresent. The English statute has also a clause providing that a con- tract for the sale of goods, exceeding in value ten pounds, shall not be valid, unless, first, the buyer actually receive some part of the goods, or, secondly, pay something by way of earnest to bind the bargain, or, thirdly, unless the con- tract be in writing. This clause has not been as uniformly adopted in our States as the clauses before named, but will probably be found in the statute laws of most of them, vary- ing somewhat, but of the same general purport. Massachusetts places the limit of the value of goods at $50, and Connecticut at $35, and these limits are adopted by most of the States, a majority of them fixing it at $50. 86 AGREEMENT OB CONTRACT. This is by far tlie most important statute that has ever been enacted, in its bearing iipon the common and commer- cial law of contracts. A statxite against fraudulent conveyances, having similar purpose and effect, was also passed in the reign of Elizabeth, wliich has also been widely, and perhaps universally, copied by all our States. It provides^ First, " That all deeds of gift and conveyance of goods and chattels, made in trust for the use of the per- son making the same, shall be void, and of no effect." This applies only to personal property, possession of which is generally regarded as evidence of ownership; credit is given a person who holds a large amount of it, on the faith of his ownership, and it was quite desirable that all persons should be prevented from successfully conveying its title to another, while retaining its use. Second, " That every gift, grant, or conveyance of lands, tenements or hereditaments, rents, goods or chattels, &c., made or obtained with intent to defraud creditors, &c., is void." All the property of a debtor should be applied to the pay- ment of his debts. The design of this statiite is, to give legal eiiicacy to this principle, and to promote honesty and fair dealing. Stamps. Great Britain, having had occasion for some centuries to obtain all the money she could, for the support of her govern- ment and to pay the interest on her public debt, early in her history passed an act requiring stamps upon all contracts and written instruments. We have now such a law \inder an act passed within the last six years, but it is much less burdensome than the Eng- lish statute.* General contracts require only a stamp of five cents for each sheet of paper on which they are written ; and all our * We had also such a law in the early da3'S of the republic, the practical ope- ration and memory of which have mainly passed away. See Stamp Act of 1797, I. U. S. Stat, at Large, p. 527 and note. AGREEMENT OR CONTRACT. 87 stamps, except those prescribed for conveyances and mort- gages, are quite light. A tabic of stamp duties required upon all ordinary instru- ments is hereto subjoined. The following list covers all stamp duties required to be put upon the instrmnents therein named. If stamps have lieen accidentally omitted, they may be affixed and cancelled under provisions of a statute of Congress. SCHEDULE OP STAMP DUTIES, ISSUED BY THE DliPAKTMENT, MAT 1, 1869. Stamp Duty. Accidental injuries to persons, tickets or contracts for insurance against, exempt. Ajjtihieits exempt. Aijreement or contract not otherwise specified : Tor every sheet or piece of paper upon which either of the same shall be written 5 cts. AgreenuDt, renewal of, same stamp as original instrument. Appraisement of value or damage, or for any other purpose : For each sheet of paper on which it is written 5 cts. Assignment of a lease, same stamp as original, and additional stamp upon the value or consideration of transfer, according to the rates of stamps on deeds. {See Conveyance.) Assignment of policy of insurance, same stamp as original instrument. [See Insurance.) Assignment of mortgage, same stamp as that required upon a mortgage for the amount remaining unpaid. (See Mortgage.) Bank chi-ck, draft, or order for any sum of money drawn upon any bank, banker, or trust company at sight or on demand 2 cts. When drawn upon any other person or persons, companies or cor- porations, for any sum exceeding SIO, at sight or on demand. . 2 cts. Bill of exchange, (inland,) draft or order for the payment of any sum of money not exceeding SlOO, othcnvise than at sight or on de- mand, or any promissory note, or any memorandum, check, re- ceipt, or other -svi-itten or printed evidence of an amount of money to be paid on demand or at a time designated : For a sum not exceeding SlOO 5 cts. And for every additional ^100 or fractional part thereof in excess of SlOO 5 cts. Bill of exchange, (foreign,) or letter of credit drawn in, hut payable out of, the United States : If drawn singly, or othenvise tlian in sets of three or more, same rates of duty as inland bills of ex- change or promissory notes. (Duplicates require same stamp as the originals.) If drawn in sets of three of more, for every bill of each set, where the sum made payable shall not exceed $100 or the equivalent thereof in any foreign currency 2 cts. 88 AGREEMENT OR CONTRACT. Stamp Dnty. Bill of exchange. And for every additional $100, or fractional part thereof in excess of SI 00 2 cts. Bill of lading or receipt (other than charter-party) for any goods, mer- chandise, or effects to he exported from a port or place in the United States to any foreign port or place 10 cts. Bill of lading to any port in British North America exempt. " " domestic or inland exempt. Bill of sale by which any ship or vessel, or any part thereof, shall be conveyed to or vested in any other person or persons : When the consideration shall not exceed $500 50 cts. Exceeding S500, and not exceeding 81,000 $1 00 Exceeding $1,000, for every additional amount of $500 or frac- tional part thereof. 50 cts. Bill of sale of personal property other than ship or vessel 5 cts. Bond for indemnifying any person for the payment of any sum of money : When the money ultimately recoverable thereupon is $1 ,000 or less > 50 cts. When in excess of $1,000, for each $1,000 or fraction 50 cts. Bond-administrator or guardian, wlien the value of the estate and ef- fects real and personal, does not exceed $1,000 exempt. Exceeding $1,000 $1 00 Bond for due execution or performance of duties of office $1 00 " personal, for security for the payment of money. (5«e Mortgage.) " of any description, other than such as maj be required in legal proceedings, or used in connection with mortgage deeds, and not otlierwise charged in this schedule 25 cts. Bond or note, when accompanied and secured by mortgage : But one stamp duty is required on such papers, such being the highest required by either of them. Broker's notes. (See Contract.) Certificates of measurement or weight of animals, wood, coal, or hay. . . exempt. " " " of other articles 5 cts. Certificates of stock in any incorporated company 25 cts. Certificates of profits, or any certificate or memorandum showing an in- terest in the property or accumulations of any incorporated company : If for a sum not less than $10 and not exceeding $50 10 cts. Exceeding $50 and not exceeding $1,000 25 cts. Exceeding $1,000, for every additional $1,000 or fractional part thereof. 25 cts. Certificate. Any certificate of damage or otherwise, and all otlier cer- tificates or documents issued by any port warden, marine sur- veyor, or other person acting as such 25 cts. Certificate of deposit of any sum of money in any bank or trust com- pany, or with any banker or person acting as such : If for a sum not exceeding $100 2 cts. For a sum exceeding $1 00 5 cts. Certificate of any other description than those specified 5 cts. AGREEMENT OR CONTRACT. 89 Stamp Duty. Charier, renewal of, same stamp as on original instrument. Charter-party for the charter of any ship or vessel, or steamer, or any letter, memorandum, or other writing relating to the charter, or any renewal or transfer thereof: If the registered tonnage of such ship, or vessel, or steamer does not exceed 150 tons $1 00 Exceeding 1 50 tons, and not exceeding 300 tons 3 00 Exceeding 300 tons, and not exceeding 600 tons 5 00 Exceeding 600 tons 10 00 Check. Bank cheek 2 cts. Contract. Broker's note, or memorandum of sale of any goods or merchandise, exchange, real estate, or property of any kind or description issued by brokers or persons acting as sucli : For each note or memorandum of sale 10 cts. Bill or memorandum of the sale or contract for tlie sale of stocks, bonds, gold or silver bullion, coin, promissory notes, or other securities made by brokers, banks, or bankers, either for tlie benefit of others or on their own account : For each hundred dollars, or fractional part thereof, of the amount of such sale or contract 1 ct. Bill or memorandum of the sale or contract for the sale of stocks, bonds, gold or silver bullion, coin, promissory notes, or otlier securities, not his or their own property, made by any per.^on, firm, or company not paying a special tax as broker, bank, or banker : For each hundred dollars, or fractional part tliercof, of the amount of such sale or contract 5 cts Contract. (See Agreement.) " renewal of, same stamp as original instrument Conveyance, deed, instrument, or writing, whereby any lands, tene- ments, or other realty Sold shall be granted, assigned, transfer- red, or otherwise conveyed to or vested in the purchaser or pur- chasers, or any other person or persons by his, her, or their di- rection, when the consideration or value does not exceed S500 . . 50 cts When the consideration exceeds $500, and does not exceed $1,000, SI 00 And for every additional $500, or fractional part thereof, in ex- cess of $1,000 50 cts Conveyance. The acknowledgment of a deed, or proof by a witness . . exempt. " Certificate of record of a deed exempt. Credit, letter of. Same as foreign bill of exchange. Custom house entry. (/See Entry.) Custom house withdrawak. (/See Entry.) Deed. {See Conveyance — Trust deed.) Draft. Same as inland bill of exchange. Endorsement of any negotiable instrument exempt. Entry of any goods, wares, or merchandise at any custom house, either for consumption or warehousing: Not exceeding $100 in value 25 cts. Exceeding $100, and not exceeding $500 in value 50 cts. Exceeding $500 in value $1 00 90 ' AGREEMENT OR CONTRACT. Stamp Duty. Entry for the withdrawal of any goods or merchandise from bonded warehouse 50 cts. Ganger's returns exempt. Indorsement upon a stamped obligation in acknowledgment of its fulfil- ment exempt. Insurance (life) poUcy : When the amount insured shall not exceed $1,000 25 cts. Exceeding $1 ,000, and not exceeding $5,000 50 cts. Exceeding $5,000 ' $1 00 Insurance (marine, inland, and fire) policies, or renewal of the same: If the premium does not exceed $10 10 cts. Exceeding $10, and not exceeding $50 25 cts. Exceeding $50 50 cts. Insurance contracts or tickets against accidental injuries to persons. . . exempt. Lease, agreement, memorandum, or contract for the hire, use, or rent of any land, tenement, or portion thereof, whether for one year, a term of years, or the fractional part of a year : Where the rent or rental value is $300 per annum or less 50 cts. Where the rent or rental value exceeds the sum of $300 per an- num, for each additional $200, or fractional part thereof in ex- cess of $300 50 cts. Legal documeiUs : Writ, or other original process, by which any suit, either criminal or civil, is commenced in any court, either of law or equity .... exempt. Confession of judgment or cognovit exempt. Writs or other process on appeals from justice courts or other courts of inferior jurisdiction to a court of record exempt. Warrant of distress exempt. Letters of administration. (See Probate of will.) ' Letters testamentary, when the value of the estate and effects, real and personal, does not exceed $1,000 exempt. Exceeding §1 ,000 5 cts. Letters of credit. Same as bill of exchange, (foreign.) Manifest for custom-house entry or clearance of the cargo of any ship, vessel, or steamer, for a foreign port : If the registered tonnage of such ship, vessel, or steamer does not exceed 300 tons SI 00 Exceeding 300 tons, and not exceeding COO tons 3 00 Exceeding 600 tons 5 00 [These provisions do not apply to vessels or steamboats plying between ports of the U. S. and British North America.] Measurers' returns exempt. Memorandum of sale, or broker's note. [See Contract.) Mortgage of lands, estate, or property, real or personal, heritable or movable, whatsoever, a trust deed in the nature of a mortgage, or any personal bond given as security for the payment of any definite or certain sum of money ; exceeding $100, and not ex- ( ceeding $500 50 cts. AGREEMENT OR CONTRACT. 91 Stamp Duty. Mortgage of lands, exceeding $500, and not exceeding $1,000 $1 00 And ibr ei ury additional $500, or fractional part thereof, in ex- cess of S1,000 , 50 cts. Older for payment of money, if the amount is SlO, or over 2 cts. Passage ticket on any vessel from a port in the United States to a for- eign port, not exceeding S35 50 cts. Exeecding S35, and not exceeding S50 SI 00 And for every additional 850, or fractional part thereof, in excess of S30 1 00 Passage tickets to ports in British Xorth America exempt. Pawners' checks .- 5 cts. Power of attorney for the sale or transfer of any stock, bonds, or scrip, or for the collection of any dividends or interest thereon 25 cts. Power of attorney, or proxy, for voting at any election for ofScers of any incorporated company or society, except religious, charita- ble, or literary societies, or public cemeteries 10 cts. Power of attorney to receive or collect rent 25 cts. " " to sell and convey real estate, or to rent or lease the same SI 00 Power of attorney for any other puiijose 50 cts. Probate of will, or letters of administration ; where the estate and ef- fects for or in respect of which such probate or letters of admin- istration applied for shall be sworn or declared not to exceed the value of $1,000 exempt. Exceeding SI ,000, and not exceeding $2,000 $1 00 Exceeding $2,000, for every additional $1,000, or fractional part thereof, in excess of $2,000 50 cts. Promissory note. {See Bill of exchange, inland.) Deposit note to mutual insurance companies, when policy is sub- ject to duty exempt. Renewal of a note, subject to the same duty as an original note. Protest of note, bill of exchange, acceptance, check, or draft, or any marine protest 25 cts. Quitclaim deed to be stamped as a conveyance, except when given as a release of a mortgage by the mortgagee to the mortgagor, in which case it is exempt ; but if it contains covenants may be subject as an agreement or contract. Eeceipt for satisfaction of any mortgage or judgment or decree of any court exempt. Receipts for any sum of money or for the payment of any debt, or for a draft or other instrument given for the payment of money ; exceeding $20, not being for satisfaction of any mortgage or judgment or decree of court 2 cts. (See Indorsement.) Receipts for the delivery of property exempt. Renewal of agreement, contract or charter, by letter or otherwise, same stamp as original instrument. Sheriff's return on writ, or other process exempt. 92 AGREEMENT OR CONTRACT. Stamp Duty. Trust deed, made to secure a debt, to be stamped as a mortgage. Warehouse receipts exempt. Warrant of attorney accompanying a bond or note, if the bond or note is stamped .* exempt. WeigJter's returns exempt. Official documents, instruments, and papers issued by officers of the United States government exempt. Official documents, instruments, and papers issued by the officers of any State, county, town, or other municipal corporation, in the exercise of functions strictly belonging to them in their or- dinary governmental or municipal capacity exempt. Papers necessary to be used for the collection from the United States government of claims by soldiers, or their legal represen- tatives, for pensions, back pay, bounty, or for property lost in the service exempt. (This does not extend to State, county and town bounties.) Note. — For list of Proprietary Stamps, and Laws, Decisions and Regulations as to Revenue Stamps, see Appendix. FORMS AND ARTICLES OF AGREEMENT. 1. Brief General Form of Agreement for any Purpose. This Agreement made this day of , A. D. 18 , between A. B., of , of the one part, and C. D., of , of the other part, witnesseth : That the said A. B. for the consideration hereinafter men- tioned agrees to (here state the agreement.) In consideration whereof, the said C. D. hereby agrees to pay the said A. B. [here state the conditions.] In witness whereof, they have hereunto intercliangeably set their hands the day above written. Li presence of A. B. CD. agreement or contract. 93 2. For Arbitration. Know all men, that A. B., of ,and C. D. of ,have agreed to submit the demand, which the said A. B. has against tlie said C. D., which is hereunto annexed, (or, and all other demands between said parties, — or the submission may be varied in this I'espect), to the determination of E. P., G. H. and I. K. of , the award of whom, or the greater part of whom, being made and reported within days from this day, to the Court of , for the coiinty of , the judgment thereon shall be final ; and if either party shall neglect to appear before the arbitrators, after due notice given him of the time and place appointed for hearing the parties, the arbitrators may proceed in his absence. Dated at this day of A. D. 18 . In presence of A. B. C. D. Note. — For other forms of arbitration papers, see Post, cliaptcr on Arbitra- tion. 3. For Sale of Real Estate. Articles of Agreement made this day of , between A., of , of the one part, and B., of , of the other part: Tlie said A. doth hereby agree with the said B. to sell to him the lot of ground, [here describe it], for the sum of ; and that he will, on the day of next, on re- ceiving from the said B. the said sum, at his own cost and expense, execute a proper deed for conveying the said prem- ises to the said B., free from all incumbrances; which con- veyance shall contain a general warranty, and the usual full covenants. And the said B. agrees with the said A. that he the said B. will, on the said day of next, and on the execution of such conveyance, pay to the said A. the sum of , aforesaid. And it is further agreed between the par- ties aforesaid, as follows : The said A. shall retain possession of the property, and be entitled to the rents and profits thereof, until the said day of next, when upon the delivery of the deed, the possession is to be delivered to the 94 AGREEMENT OR CONTRACT. said B. It is understood tliat the stipulations aforesaid are to bind the heirs and assigns of the parties. In case of fail- ure, the parties bind themselves, each to the other in the sura of , which they hereby fix and liquidate as the amount of damages to be paid by the failing party for his non-per- formance. In witness whereof the parties have hereunto set their hands the day and year aforesaid. A. B. CD. [An ordinary agreement is seldom any better, for seal, but if one is preferred, add after the word "liands" the words "and seals" and affix seals]. 4. Another Form for Sale op Eeal Estate. [Every agreement for the sale of Real Estate must be in writing. If it be tlie intention of the parties that a simple warrantee deed or quitclaim only be given, it should be so stated in the agreement]. Articles of Agreement made between A. B. of , and C. D. of , as follows: The said A. B., for the consideration hereafter mentioned, doth covenant and agree to convey to said C. D., in fee, all that lot of land, situate in , [give description, bounda- ries, &C.J by a warrantee deed in common form, with good title, [and a release of dower of the wife of said A. B.] (1). on or before the day of next. In consideration whereof, the said C. D. doth agree to pay said A. B. the sum of Dollars in the manner following: dollars in money on the delivery of the deed, and dollars in a negotiable note, payable to said A. B. in two years, with interest semi-anniially, secured by a mortgage of said premises to be made by said C. D. to said A. B., as col- lateral security for the payment of said note. AGREEMENT OR CONTRACT. 95 Witness our hands and seals this 18 . Signed, sealed and delivered day of ,A. in presence of A. B. CD. [L.S.] [L. S.] (1.) Note. — In a State in which a wife has dower only in the land which is owned by her husband at the time of his death, the clause in brackets will be omitted, as also of course where the seller has no wife. [Must be acknowledged and recorded] . 5. Third Form for 8 ale op Real Estate. Agreement made this day of ,A. D. 18 at in the State of , between A. B. of ,and C. D. of in the State of , First. The said A. B. in consideration of the sum of dollars, to him paid by the said C. D. (the receipt of which is hereby acknowledged,) and in further consideration of the promises of the said C. D. hereinafter contained, hereby agrees with the said CD., that he will on or before the day of next, make and deliver to the said C D., a good and sufficient deed, with the usual covenants of warranty, release of dower, &c., of all that tract of land in the town of , in the county of , and State of , known as the , &c., (or, bounded and described as follows : — ) Said estate to be at the date and delivery of such deed free of all incumbrance. Second. In consideration whereof, the said C D. hereby agrees with the said A. B., that he will on such deed being tendered to him by the said A. B. on or before the said day of next, pay the said A. B. the further sum of dollars, in addition to the payment already made, being the balance of the purchase money hereby agreed upon for the said tract of land. To the performance of the agreements herein contained on the part of the said A. B. and C D., each of them binds liimself to the other and his assigns. 96 AGREEMENT OR CONTRACT. In witness whereof, we have hereunto set our hands the day and year first above written. Executed and delivered in presence of A. B. C. D. Payments, &c., will of course be easily variea according to the facts in each case, and covenants as to dower, and home- stead release will be inserted or omitted, with reference to the local statute law. 6. For Purchase op House and Lot. This agreement made this day of , in the year 18 , between A. B. of , and C. D. of , witnesseth: — That the said A. B. agrees to sell, and the said C. D. agrees to purchase, for the price of dollars, the house and lot known and distinguished as number ' in street, in the city of . The possession of the property is to be de- livered on the day of next, when per cent, of the purchase money is to be paid in cash, and a bond or note and mortgage, on the premises, bearing per cent, inter- est, payable in years, (such interest payable on , &c.) is to be executed for the balance of the purchase money ; at which time also a deed of conveyance in fee simple, con- taining the usual full covenants and warranty, is to be deliv- ered, executed by the said A. B. and wife, and the title made satisfactory to the said C. D.; it being understood that this agreement shall be binding upon the heirs and assigns of the respective parties ; and also that the said premises are now insured for dollars, and in case the said house should be burnt before the said day of next, that the said A. B. shall hold the said insurance in trust for, and will then transfer the same to the said C. D., with the said deed. In witness whereof, the parties have hereunto set their hands the day and year aforesaid. A. B. C. D. AGREEMENT OR CONTRACT. 97 Varying the description, the above agreements will answer for any species of property — as an agreement of purchase. 7. Agreement for a Lease. This agreement made this day of , in tlie year between A. B. of , and C. D. of , witnesseth : That the said A. B. agrees by lease, to be executed on or before the day of next, to let to the said C. D. the house and lot known as number in street in said , now in the occupation of E. F., to hold to the said C. D. and his assigns from the day of _ next, for and during the term of years, at the yearly rent of dollars, payable ; in which lease shall be covenants on the part of the lessee and his assigns, to pay rent, (except, in case the prem- ises are destroyed by fire, the rent is to cease until they are rebuilt), and to pay all taxes and assessments, to repair the premises, (except damages by fire, or other casualty happen- ing without fault of the lessee), not to carry on any business on the premises, (except by the written permission of the said A. B.); to deliver the same up at the end of the term in good repair, (except damages by fire, or other casualties as aforesaid), with all other usual and reasonable covenants, and a proviso for the re-entry of the said A. B. or his assigns, in case of the non-payment of the rent for the space of days after either of said rent-days, or the non-performance of any of the covenants ; and there shall also be contained therein covenants on the part of the said A. B. his heirs and assigns, for quiet enjoyment, to renew said lease at the expi- ration of said term for a further period of years at the same rent, on the said C. D. or his assigns paying the said A. B., his executors, administrators or assigns, the sum of dollars as a premium for such renewal, not less than days before the expiration of such lease ; and that in case of an accidental fire at any time during the said terms, or either of them, the said A. B. will forthwith put the prem- ises in as good repair as before the fire, the rent in the mean 7 98 AGBEEMENT OR CONTRACT. time to cease. And the said C. D. hereby agrees to accept such lease on the terms aforesaid ; and it is mutually agreed that the costs of making and recording said lease and a counterpart thereof, shall be borne by the said parties equally. Witness our hands the day and year first above written. A. B. C. D. Note. — It is seldom that parties will desire to make an " agreement for a lease " as the lease itself may with about as little trouble, be immediately drawn, to take effeot when needed, and thus the making of one instrument is sayed. 8. Same, — Shorter Form. A. B. of , agrees to let, and C. D. of , agrees to take on lease, for the term of years, to be computed from the date hereof, the premises situate in , at the yearly rent of dollars per annum, to be paid quarterly and to com- mence from the first day of next, without deduction on account of taxes ; the lease to contain the same covenants as are in the lease from E. F. to the said A. B., and also that all erections now on the premises are to be left. In witness whereof, the parties have hereunto set their hands, this day of , A. D. 18 . A. B. C. D. 9. Builder's Agreement to Build According to Plans. It is agreed by and between A. B. of , and C. D. of , as follows, to wit: The said C. D. for the consideration here- inafter mentioned, agrees with the said A. B. that he will, within the space of next after the date hereof, in good and workmanlike manner and according to the best of his skill, at , well and substantially erect, build and finish, one , according to the plans and specifications hereunto annexed, of the dimensions following, viz.: with such piaterials as the said A. B. shall provide for the same: In consideration whereof, the said A. B. agrees with the said C. AGREEMENT OR CONTRACT. 99 D. to pay to the said CD. the sum of I , in manner fol- lowing: that is, the sum of $ at the beginning of the ■work, and the sum of $ when the same shall be com- pletely finished, and when all builders' and mechanics' liens are provided against by expiration of time or otherwise ; and also that the said A. B. will provide all the materials neces- sary for making and building the said • . And for the performance of all and every, the articles and agreements above mentioned, the said A. B. and C. D. do hereby bind themselves, each to the other, in the penal sum of , firmly by these presents. In witness whereof, the parties have hereunto set their hands at , this day of , A. D. 18 — . Executed and delivered A. B. in presence of CD. [If the builder is to furnish material, the agreement may easily be changed in that respect as in No. 24.] 10. Bdilder's Agreement. I hereby agree to execute the whole of the works requisite to be done in the (erection, enlargement, or alteration, as the case may be), as detailed in the drawings and specification hereto annexed, for the sum of dollars, and to complete and finish the same, according to the conditions before speci- fied, and to the satisfaction of the architect, on or before the day of next, or to forfeit the sum of per week, for every week the works may be delayed beyond that date. Dated at , this day of , A. D. 18 . B. P. 11. Another Form. A. B. of , and C D. of , agree as follows : — The said C D., for the consideration hereafter mentionedj 100 AGREEMENT OR CONTRACT. agrees to build and complete for said A. B., a story brick , on lot No. , in the town of , in accord- ance with the plans and specifications signed by the parties, and to which this agreement is annexed ; to provide all necessary materials for constructing the same ; and the work to be done in a faithful and workmanlike manner, within months from the date hereof. In consideration whereof, the said A. B. agrees to pay to said C. D., dollars, as follows : [Here state the sums and times of payments]. Witness our hands this day of , A. D. 18 . In presence of . A. B. C. D. 12. Same, with Special Covenants. This agreement, made this day of , one thousand eight hundred and , between B. of , and D. of , Witnesseth : That, in consideration of the mutual promises herein con- tained, the parties hereto agree as follows : Said D. will provide the materials for, forthwith com- mence, and build without delay, (except from necessities of weather), a house for said B., on his lot in street, in , according to plans and specifications drawn by F., architect, to be signed by the parties hereto ; and deliver said house, completely finished in every respect, ready for occupation, to said B., on or before the day of next. No departure from the plans and specifications shall be made, unless assented to in writing by said B. If any de- partures are otherwise made, said B. may require said D. to take down the work, and do it over again in the manner pro- vided ; and if said D. shall neglect or refuse so to do, said B. may have it done by other persons, at said D's expense. Whereas, said B. is to employ a superintendent of the work, it is expressly understood that he does so for his own convenience and security, and he is not to be bound by any AGREEMENT OB CONTRACT. 101 agreement, admission, waiver or acceptance by said superin- tendent, express or implied. Said B. may at any time require, in writing, alterations in said plans and specifications ; in which case said D. shall have reasonable additional time for finishing said house, to be fixed by said F. ; and if the alterations require a change in the price, such change of price, if not specified in the writing, shall be left to the decision of the said P. If the work is not prosecuted in the manner set forth in this contract, as to time, quality or manner of work or ma- terials, said B. may dismiss said D., and employ other persons to complete the house, and deduct from the amount con- tracted to be paid to said D., the expense thereof, and all damages caused by said D's default, and recover the surplus, if any, from said D. And said B. agrees to pay said D. the sum of dollars in full for his work and materials, in installments, as follows : dollars when the frame of the house is erected ; dollars when it is roofed and finished on the outside ; dollars when the house is completed and ready for occupa- tion ; and the balance in three months therefrom. If said B. shall see fit to accept said house, or any part of the work, with defects or departures from the contract, with- out requiring the same to be changed, he may still deduct any damage sustained thereby. And it is also understood, that said B's entering into and occupying said house, shall not debar him from objections to said D's performance of the contract. In witness whereof, the parties have hereunto set their hands, the day and year first above written. Signed and delivered B. in the presence of D. 13. Specification fob House, with Short Form of Ten- debs OB Proposals to Build. Drawings. — The drawings referred to herein, are to be considered as forming part of this specification. 102 AGREEMENT OR CONTRACT. Dimensions. — Dimensions are to be taken from the figures upon the drawings ; or, where they are wanting, from meas- urements of the drawing, upon the largest scale shown. Outside measure, by ; L, by . First floor to contain a Parlor by , Sitting Room by , Kitchen by , Hall feet wide. Second floor to contain three chambers, by , by , by , and a Bed-room by . The first story is to be feet high, and the second story, feet inches, in the clear. Hxcavation. — The ground hne on the plans represents the height of the earth at the completion of the work. Cellars to be dug feet and inches below the ground line, under such parts of the house as may be agreed upon, the bottoms to be levelled and cemented. Trenches for walls to be dug at least 8 inches, with bottoms even and hard. Superfluous earth, stone and rubbish, accumulated during the work, to be removed to such place as directed by the owner or his agent, not to exceed 500 feet haul. Soil to be deposited by itself, and replaced when the grounds are leveled and graded, as agreed upon, and the lot left in a neat condition. MasorCs Work. Foundations. — The foundation walls to be of the dimen- sions and thickness as shown in the plan, and built in such a position upon the lot as the owner may direct. Footing stones, firmly laid, to extend through the wall. The walls, chimney and verandah piers to be of , solidly laid in lime mortar, thoroughly bound, built plumb, neatly pointed where in sight, and finished true and level at the top. Ver- andah piers to be feet below the surface. Cellar window frames to be built in, secure and tight. Openings in the cellar walls, required for passages, to be made with well laid jambs. Chimneys. — The chimneys, of the sizes and shapes as shown in the plan, are to start from stone foundations, and run up straight. The flues to be laid smooth and pargeted. Sheet iron thimbles, with cover, to be inserted where requested. AGREEMENT OR CONTRACT. 103 All bricks to be of good quality, and those used in top to be hard burnt and smooth. Wood is not to be introduced into any part of the chimney. Filling in, ^c. — The whole thickness of the walls, inches high from the sills, to be filled in with brick or broken stones and mortar, so as to exclude air and mice ; crevices under the sills to be well pointed. Lathing. — The plastered walls to be lathed with good pine laths, four feet in length, and each lath nailed with four nails ; heading joints to alternate, Plastering. — Inside walls, except in cellar, to be plastered and finished with skin coat ; the plastering to be made even and true with the grounds, and to form ^ solid connection with the filling in the floor. Whitewashing. — The cellar walls, framing and floor above, to be whitewashed with two coats. Materials, Sj-c. — Lime, sand and hair to be of good quality, well mixed and worked up, and the mason work to be done in a workmanlike and thorough manner. No injury is to be done to the woodwork by the mason or the persons he em- ploys, and all defects must be repaired after the carpenter's work is done. Carpenter's Work. Frame. — The sills, by , to be laid firm, square and level, on the foundation walls ; posts, by , to be ten- oned inches into the sills, and tenoned into the plate, and placed accurately ; tie beams, by , to be tenoned into the posts ; plates, by , halved on £|,ngles and pinned ; window and door-posts, by , to be tenoned in ; gird- ers, by , will be placed where shown in the drawing ; floor beams, by , for first tier, to be level with the sills, and framed as shown in the drawing ; those of the sec- ond tier of same size, to rest on the tie beams and on the central partitions, where they will lap by and be nailed to each other ; partitions to have by heads and sills ; where one partition is directly under another, its head will make the sill of the one above ; inside door posts by , 104 AGREEMENT OR CONTRACT. and studding by , placed inches on centres, to be well nailed at top and bottom ; outside studding by , to be well nailed at top and bottom ; rafters by , placed not over inches on centres, and bridged if re- quired ; trimmers to be framed around the chimneys. The frame is to be securely stayed, to keep it true and plumb while unfinished. All timber to be of , sound, straight and true, and of the sizes specified, and jJut together in a firm and workmanlike manner. Roofs. — The roof to be covered with inch boards, of uniform thickness, laid^with close joints, and well nailed to the rafters. Gutters are to be formed in , as shown on the section, placed and made to carry water where directed. Roof of the main house to be overlaid with best of , laid to the weather, in the best manner. Verandah roof to be covered with tin, and immediately painted. Boarding. — Outside walls to be covered with good hemlock boards of uniform thickness, overlaid with good sap-clear pine clapboards, mill planed to even thickness. Floors. — Double floors throughout the house, nailed with two nails to each beam, and planed level and smooth. Ver- andah floors inches thick, narrow, sloped inches to tlie outside, worked with a nosing as shown in the drawing, and laid in white lead. Inside Trimmings. — Base Boards as follows : in the first story, inches high, and inches thick, with moulding ; in second story and closets, inches high, plain. The casings of doors in closets to be inches wide, plain ; all others as shown in drawing. Door jambs inches thick, and rebated. Outside Trimmings. — All cornices, &c., to be like the draw- ings, solid and weU secured. Grounds to be provided to receive inside trimmings, and no trimmings will be put in till the plastering has hardened. Stairs. — Cellar stairs to be provided with 1 inch risers and 1 inch treads ; main stairs same, supported on three car- riages, to have moulded nosings. AGREEMENT OB CONTRACT. 105 Doors. — Inside doors on the first floor to be by , and inches thick. Chamber doors to be by , and inches thick ; all to be four paneled, with moulding. Fi'out door as shown in drawings. Windows. — Tlie frames of cellar windows to be inch jambs and straight soffits, and inch sills, rebated to re- ceive the sash, and set close under tlie sills where directed ; the sashes to be hung with bolts at the upper edge, provided with buttons to hold them closed, and to have three lights. All others are to be like drawings, double-hung, with cords, pulleys and weights. Closets. — Closets to be furnished with hanging strips and hooks as required ; and feet of plain shelving is to be placed where directed. Door-bell. — A bell is to be hung in the kitchen, connected with a pull at the front door. Materials. — All the lumber which is to show when finished, is to be of good, clear, sound and well seasoned white pine, worked and put up in a workmanlike manner. All hardware and furnishings needed to make the house complete are to be fitted in a proper manner. Hardware. Tlie outside door to be hung with three pair of butts ; all others with two pair each, of good manufacture and proper size. Hemp or cotton cord, of good quality, axle pulleys, weights, of a size to balance the sash and to run easily in the boxes, to be furnished for each window. The first story win- dows to have sash fastenings of a pattern to be approved by the owner, not to cost over dollars per dozen. All doors to be fitted with mortice locks and latches, half each. All door knobs to be . All nails, spikes, screws, &c., needed, to be of proper size and best quality. Leaders. — There will be two inch tin leaders connected with the gutters, to be neatly and securely attached to the house, and made tight ; two inch leaders will connect witli the verandah gutters at their junction with the house. 106 AGREEMENT OR CONTRACTS. Painting, ^c. The sashes to be glazed with first quality window glass, well bradded, puttied and back puttied. All outside wood- work to be primed as soon as it is put up. All the outside and inside woodwork, except inside floors, will be properly puttied, and painted two coats of pure white lead and lin- seed oil, and colored as directed. Greneral Clauses. All the materials are to be furnished, and the work done necessary to complete the house, according to the drawings, though the same may not be specially mentioned herein. The work and materials, not otherwise specified, are to be of the best qualities of their several kinds. The contractor must guard against any injury to trees or fences about the house ; he must not employ incompetent or improper persons about the work ; and he is to remove all dirt and rubbish from the premises, and deliver the same finished and in a peat condition in every respect. Alterations. — All alterations and deviations from this spe- cification, and all additions to the same, are to be fully stated in writing and appended hereto : otherwise the contractor will receive no pay therefor, and be liable in damages if objected to. Pboposals to Build. Nb. 1. Sir: I hereby propose to execute the works required to be done in the (erection, alteration or enlargement, as the case may be,) in conformity with and to the true intent and mean- ing of the drawing and specification of the same, for the sum of dollars, payable as proposed. A. B. Dated this day of , A. D. 18—. AGREEMENT OR CONTRACT. 107 UTo. 2. Sir: I have examined the specification and drawings of the work intended to be done in the erection of , situate, and being No. , and hereby offer to execute the same in a good and workmanlike manner, agreeable to the true intent and meaning of the said specification and drawings, and to the satisfaction of the architect, for the sum of dollars, payable as proposed. Dated this day of , A. D. 18 A. B. 14 Notice of Intention to Build, and Requesting Grade, &c. To the Son. the Mayor and Aldermen of the City of [or Selectmen of the Town of J. Gentlemen: I intend to erect a building on street, and request that the grade and line of said street may be given me, with permission to occupy such portion of the street in front of the premises as may be necessary for the deposit of building materials. B , Jan. lOthj 18 . A. B. 15 Agreement for Apprenticeship. This agreement made this day of ,18 , by and between A. B. of , in the county of , carpenter, and C. D. of , in the county of , mason, witnesseth : That the said A. B., in consideration of the agreements of the said C. D. hereinafter set forth, and with the consent of his son S., of the age of years, who hereby signifies his as- sent by subscribing this indenture, doth intrust, bind and hereby indent the said S. to the said C. D. to learn the art and trade (here describe the particular trade or business,) and with Mm, as an apprentice, to serve from the day of the 108 AGREEMENT OB CONTRACT. date of tins indenture, until the day of , at which time the said S. will arrive at the age of twenty-ono years. And the said A. B. doth covenant with the said C. D., that for and during the term aforesaid, the said S. shall faithfully serve him, and shall give and devote to him his time and la- bor ; that he shall not destroy or injure the property of the said CD., but shall endeavor to advance the interest and profit of his business, and shall conduct himself in a tem- perate, honest and industrious manner. And tho said C. D. hereby agrees with the said A. B. that he will truly and faithfully instruct and teach the said S. in the art and trade aforesaid, to the best of his knowledge and skill, and as far, and as fast as the said S. may show himself disposed and capable of learning the same ; that he will , during the term aforesaid, supply him with good and suitable food, lodging and clothing, and all things necessary, in sick- ness and in health, and teach him habits of industry and good morals. And the said C. D. further agrees with the said A. B. that will pay to the said S. the following sums of money : for first year of his service dollars ; for the second year his service dollars ; and for every subsequent year till he shall arrive at the age of twenty-one years, dollars ; the said sums to be paid quarterly on the first days of And the said S. hereby assents to the terms and agree- ments in this indenture, and promises to keep and perform the same on his part. In witness whereof, we have hereunto set our hands, the day and year first above written. Executed in presence of A. B. C. D. S. B. 16. Agreement op Compromise with Creditors. Know all men by these presents, that whereas A. is justly indebted unto us, C, D. and E., creditors of the said A., in AGREEMENT OR CONTRACT 109 divers sums of money, which he has become unable fully to pay and discharge: therefore we, the said creditors, do con- sent and agree with the said A. to demand and receive less than the full amount of our respective claims, and to accept of cents for every dollar owing to each of us the said creditors of the said A., in full satisfaction and discharge of our several claims and demands ; the said sum of cents on a dollar to be paid to each of us, our heirs and personal representatives, within the space of from the date hereof. And we, the creditors aforesaid, further severally agree with the said A. that he may within the'said time of from this date, sell and dispose of his goods, chattels and effects, for the payment of the cents on the dollar of each of our respective debts, and that neither of us will at any time here- after commence proceedings at law or equity against the said A. for any debt now due and owing to us, or any of us : pro- vided the said A. does within the time before limited, well and truly pay, or cause to be paid, the said cents for every dollar of each of our several and respective claims against him. This deed is not to become valid between the parties unless executed by every creditor of the said A. whose debt exceeds dollars. In witness whereof, we have hereunto set our hands and seals this day of , A. D. 18 . A. [l. s.] And other Creditors. [l. s.] The creditors to save multiplicity of seals may adopt that of the first as their common seal. 17. Agreement for Sale of Shares op Stock. This agreement, entered into this day of , in the year , between A. B. of , of the first part and C. D. of , of the second part, witnesseth : That, in consideration of the agreement of C. D. hereinaf- llO AGREEMENT OR CONTRACT, ter contained, the said A. B. agrees to sell, transfer and con- vey to the said C. D. on the day of next, and upon payment of the money hereinafter stated, shares of stock of the , now owned by the said A. B. and stand- ing in his name on the books of the said , and to exe- cute and deliver to the said C. D. all necessary assignments, transfers and conveyances, to assure and convey the same to the said CD. and his assigns forever. In consideration of which the said CD. agrees with the said A. B. to pay to him dollars for each share of the said capital stock, on the day of next. In witness whereof, we have hereunto set our hands and seals the day and year above written. A. B. [l. s.] C. D. [L. s.] CHAPTER VI. OP SALES. Section 1. — WTiat Constitutes a Sale. Personal property is generally transmissible by delivery. Sliipping, and negotiable securities and contracts, are ex- ceptions. Tlie transfer of vessels must be by bill of sale, which should be duly registered ; and negotiable contracts and securities should be transferred by endorsement. In speaking of contracts as affected by the Statute of Frauds, we have already seen that no contract for the sale of goods, exceeding a limited value, (in some states $35, and in others $50), is valid, unless the buyer actually received some part of the goods, or give something as earnest to bind the bargain, or in part payment ; or unless some memorandum, in writing, of the bargain be made, signed by the party to be charged therewith. What is a part payment, or delivery and acceptance, be- comes frequently a question of great difficulty ; we shall here give only the general principles which govei-n all cases. — Part performance, and delivery and acceptance, call for some- thing more than mere words, there must be some act, in- tended and understood by the parties to accomplish the de- livery and acceptance, or part performance, required by the Statute. For example : I go to a lumber yard, and find some plank, piled separately and apart, which suits my purpose as a piir- chaser, I enquire the price, it is named to me, and is more than $50. I reply that the price is satisfactory, and I will take the pile. The seller replies, " the pile is yours." So far as mere words can go, it would be difficult to see how anything more could be done to constitute a sale, and yet the 112 OP SALES. sale is not completed, and cannot be enforced. If, withont more, the seller should present the bill to me for payment, and I decline, — the sale being imperfect, — he cannot enforce collection. If the value had been less than the amount limited in the Statute of Frauds, the sale would have been perfect, — above that limit, it is voidable. To complete a sale ' -within the Statute of Frauds, there should be : First, a bargain intended to change the right of property. This is, of course, the act of both parties. Second, a delivery of the property and of the possession to the vendee. This is the act of the seller. Third, an acceptance and receipt of the property, and actual possession of some part of the goods, as absolute owner. — This is the act of the purchaser. In the case given, there was notliing but the bargain, no delivery and no acceptance. I am, of course, aware that it is not always easy, or even possible, to make actual and manual delivery of bulky and ponderous articles ; but there are other ways of satisfying the calls of the Statute of Frauds. The parties may put their agreement in writing ; or the buyer may pay a part or the whole of the purchase money. Practically, I think, but little attention is paid to this branch of the statute ; and I presume not one in twenty, of parties who buy goods exceeding |50 in value, even when purchasing, so far conform to the statute as to make a pur- chase, which they could, at any time before receiving the ar- ticle, be compelled to carry out. Little practical harm results from this, for, happily, among honorable business men, an honorary obligation is as sure to be discharged, as a legal one. Section 2. Of Conditional Sales. A Seller may, by express stipulation, retain the property in the goods delivered upon contract of sale, till the price is OF SALES. 113 fully paid, and may at any time take possession, if the pur- chaser fails to pay according to his contract. This, of course, enables a purchaser, upon condition sub- sequent, to be the apparent owner of that in which he has only an imperfect and conditional ownership and property ; and undoubtedly there is a possibility that fraud may arise out of it. For example : you sell to John Smith a horse. You think he is honest, but he is not at present able to pay. Believing he will take good care of the horse, you sell to him, taking his note for the price, and stipulating in the note that the horse is to remain your property till the full amount of the note is paid. Of course John Smith, being the apparent owner, may sell the horse to one who supposes him to be the real owner, for a full price ; and, being himself poor, the purchaser may, when you take possession of the horse for non-payment, as you have full right to do, be remediless against the seller. This possibility of fraud has led some courts to doubt the legality of such sales.; but when made in good faith, there would seem to be no reasonable doubt but that they are per- fectly valid and unobjectionable. It is quite manifest, that the fraud cannot be perpetrated without false representations and deceit, and the same false representations and deceit would enable the hirer of a horse and carriage to perpetrate the same fraud ; and yet no one doubts your right to let a horse or any other chattel, for any time longer or shorter, at the pleasure of the parties, thereby giving the hirer the same opportunity to defraud. These sales have been sustained by the highest courts of several of the States, and may probably be now considered a safe and settled mode of conditional conveyance. No record or registration of such a sale is required ; and still, as has been seen, the person retaining the property as security, need not retain the possession. This, however, is not an evasion of the laws of registration, of mortgages. Those laws provide for a case where " A." secures to " B." a debt due him, by a transfer of " A's" property. It is important 114 OP SALES. that the -world, and especially that portion of the " world " who are creditors of " A," should know it, in order that, heing thereby informed that " A." is using property, which should pay or secure all his creditors equally, to secure pay- ment in full to one, they may proceed in bankruptcy to se- cure equal distribution. Thus a creditor, wishing to avoid such a security, (as he may, where it is given for an anteced- ent debt), must do so within four months after the convey- ance ; and he has no other means of knowing of the mort- gage, (where possession is not given), except by the record. In the other case, the debtor is not making security for a debt ; he is simply making a purchase of property, and has in the purchased property no other or greater right than he buys ; and this right is to be held by him, subject to every honest stipulation between him and the seller. Section 3. Subject of Sale. It used to be held in early times, that a man could not sell that which he did not own or possess ; and, strictly, this may still be true ; but any person familiar with the Stock Boards in any of our larger cities, now knows that, practi- cally, and speaking in ordinary commercial language, such sales are constantly made, not only by and among stock-bro- kers, but among general factors and brokers, and ordinary business men. I am inclined to believe that old idea has been pretty thor- oughly exploded, although it, of course, still holds its place in some of the more venerable authorities of the law. The thing sold must have an actual or potential existence, and be specified or indentified, and be capable of delivery ; otherwise it is not strictly a contract of sale, but a special or executory agreement to sell. A hope or expectation of results founded on efforts in progress, in which the seller has an interest, as the next cast of a fisherman's net, or fruit from an orchard, not yet grown, or an animal not yet in life, or the good will of a trade, may be the subject of a sale. OP SALES. 115 But a mere possibility, oi* expectation, -not coupled mth an interest in efforts in progress, or growing out of property owned by tlie seller, as a sale of the wool of a flock of sheep which the owner may thereafter buy, or the expectation of an heir, is not proper subject-matter of a sale. Section 4. The Article sold must he in Existence at the Time of the Sale. Therefore, if " A." sells his horse to " B.," and it turns ou.t that, at the time of sale, the horse was dead, though the fact was unknown to both parties, the contract is necessarily void. So, if " A.," at Washington, sell to " B.," at Boston, his house and lot, and the house has really been destroyed by fire at the time of sale, the sale is void, if the house and not the land was the chief inducement to the purchaser. There must be agreement between the parties as to the subject-matter of sale, and any essential error or mistake as to the nature of the article, or as to the location or descrip- tion of a piece of real property, would usually vitiate the contract. In a case in Rhode Island (Sheldon vs. Capron, 3 R. I. 171), an auctioneer knocked off No. 25 to a bidder who supposed he was bidding for No. 24 : it was held that noth- ing passed, for want of agreement between the parties. Section 5. Of Implied Warranty of the Article Sold. When the article sold is in the possession of the seller, there is an implied warranty of title ; otherwise if the seller has not possession: in that case the party buys at his peril, and if he would be sure of title must take special contract of warranty. There is no implied warranty of soundness in any case in which the buyer has had an opportunity of inspection. The law requires a person to attend, when he makes his 116 OP SALES. contract, to the quality of the article he purchases, and, if he distrusts his own judgment, he may protect himself by tak- ing special warranty. In sales by sample, there is an implied warranty, that the bulk shall on delivery correspond to the sample shown; and in sales by description and without inspection, that the arti- cle shall be of the hind described. The law presumes every person of full age to be possessed of the ordinary skill and information belonging to the sub- ject matter in hand, and will not relieve him against a loss resulting from the want of it, unless his incapacity amounts to idiocy, lunacy or drunkenness. Section 6. What Title Passes on Sale. In England, a buyer at what is there known as a " market overt," (that is a market where goods are publicly exposed for sale,) takes good title to the article purchased, however defective may be the title of the seller. Here we have no markets " overt," in the sense in which they are known in England, and no person in this country can transfer a greater right or better title to any article than he himself possesses. A thief, or hirer of a chattel, selling for a full price and to an honest purchaser, conveys no title against the true owner, who may reclaim it, whenever and wherever he can find it, and however many hands of innocent purchasers it may have passed through. Section 7. Of Representations and Express Warranties. An express warranty need not be in any particular form of words, but any positive affirmation made by the vender at the time of the sale, which is intended to have that eifect, or which the seller supposed the purchaser understood as hav- ing that effect, will amount to a warranty. An express warranty is to be construed and enforced like OP SALES.* 117 any other contract, and the party entering into it is to make it good, and that whether it relate to a material matter or not. "Wherever there is an express warsanty as to a single point, the law will imply none beyond its terms as expressed. A warranty must be made at the time of the sale, or previ- ously, and must have express reference to the sale ; if made subsequently it would be Without consideration (arising out of the sale), and could not be enforced. A writing containing words of description, and also of warranty, is sometimes given : as when, upon the sale of a horse, a receipt was given, " Received of John James, three hundred dollars, for a six year old black horse, warranted sound and kind, and free from vice," it was held that the warranty did not apply to the age, which was mere matter of description, and therefore the vendee, (purchaser) to recover upon that, must prove, that it was a willful misrepresentation. As before stated, the warranty need contain no particular form of words, and need not include the word warrant. A receipt thus: "Eeceived of John James, f300, for a horse this day sold him, — said horse is sound, kind and free from vice, and not more than six years old," would be a war- ranty of all those qualities and of the age. A representation differs from a warranty mainly in this, that the one is a contract, and to be performed according to its terms, while the other (a representation) must be honestly made, and believed to be true, at the time it is made, and when this is the case, the seller making it is not responsible, though it turns out that he was mistaken. Section 8. Of Rescission. The same power and authority, which creates a contract, may of course annul it. This is called rescission. Both parties to a contract (no intervening rights having ac- quired) may at any time rescind ; — and where one party is guilty of a wilful breach of a contract, the other party, in ad- dition to his right to recover damages (perhaps rather instead 118 OP SALES. of that right), may, if he can restore the dehnquent to his original position, rescind the contract. The right to remind may always be, and frequently is, re- served in the agreement itself ; and, when so reserved, it must of course be exercised according to the terms of the reservation. Section 9. When a Personal Contract Dies with the Person. Many personal contracts so terminate. A French Law writer (Pothier) gravely states that, " if a barber contract to shave a man for a year and the man dies, he is not bound to shave his executor." If one is bound as an apprentice or a clerk, to be taught by " A." in an art or mystery with which " A." is personally familiar, the death of A. or his personally retiring from the business, will discharge the apprentice ; as the father, or who- ever bound him to such service, may have had especial con- fidence in A., and is not to be held to his contract when B., to whom he would not have entrusted the boy, is to be the teacher. And wherever the personal skill or capacity of the con- tractor is stipulated for, his death terminates the contract. In other contracts, in which confidence is not reposed in a particular person, nor the service to be performed upon, or with reference to, a particular person, death merely throws the burden of performance upon the personal representative. Section 10. Construction of Contracts. In the construction of contracts the rule is, that they are to have the meaning which the contractor supposed he com- municated to the contractee. If I choose to use ambiguous phrases, I am to respond to the meaning, which I suppose the party with whom I bargain attributes to my words. This is morality, and I am glad to believe that the true OP SALKS. 119 law, when perfectly understood and rightly applied, is the highest and truest morality. That this is eminently true of the rules and principles, constructions, implications and interpretations, which govern the laws of contract and general commercial law, I think all, who are reasonably familiar with its teachings, will readily and heartily agree. Section 11. Of the Seller^ s Right to Stop Goods in Transitu. •Tliis is a right which a seller has of reserving possession of goods sold on ci-edit, while they are in the hands of a car- rier or middle-man in transit to the purchaser, and before they come to the actual possession of the purchaser. The right is as old, in its existence and recognition as a part of the law merchant, as the 26th of March, 1760. It is an exceedingly important right, especially among a commer- cial community, and its rules should be so in the mind of every seller of merchandize that he may avail himself of it at a moment's notice, by telegraph if necessary. I shall, to make it more simple and clear, speak of it under the follow- ing divisions : First. When does the right exist ? Second. Who may exercise it ? Third. How long does it continue? Fourth. How is it exercised ? First, When does it exist ? Whenever the purchaser becomes insolvent after the sale, and before the goods come into his actual possession. Actual application for the benefit of the acts in bankruptcy, or an assignment, or anything amounting to technical insol- vency, is not necessary. " Insolvency" is an inability to pay one's debts, in the or- dinary course of his business ; and, I suppose, that if the purchaser has, from inability, failed to meet his obligations, a bank note or any other obligation, in the regular way, and when it becomes due, (it not being a mistake or otherwise 120 OF SALES. explainable,) insolvency has arisen, and the right of stop- page in transitu exists ; provided the goods are still in transit. Second, Who possesses and may exercise the right ? Any seller, — either personally or by his agent, clerk, or some friend acting for him ; provided, in the last case, the act of the friend be ratified before the goods reach the pur- chaser, so as to make it by adoption the act of the seller. Not by a surety or guarantor, unless acting on behalf of the seller. As a practical example : I am in Buffalo, and learn t]iat " A." in that city has just failed to meet his obligations. I know that my friend in New York has within a few days sold him flO,000 of goods, — I presume they have been shipped, and that they will probably go by N. Y. Central Railroad, per- haps are now at the depot in Buffalo, — I should go to the depot, and if the goods were there undelivered, I should take immediate possession of them, on behalf of my friend the seller, — I should then telegraph what I had done, and, if my act is ratified, the right is well exercised. If the same information came to my friend in New York, he should telegraph instantly to the freight agent and other officials, making it reasonably certain that it will reach some one who will have control of the goods ; to hold them for the consignor and not to deliver. If such notice reaches the carrier while they are in his hands, he must hold them, or if he delivers them it is at his peril and loss, if the right turn out to have existed. Third, How long does it continue ? I answer, so long as the goods are in transit, that is, at any time before they come to the actual possession and control of the purchaser. They are in transit while they remain in the hands of the carrier, though he be appointed by the vendee, and though the freight is to be paid by him ; and the right may be ex- ercised although a creditor of the vendee has attached them while in transit ; and it is immaterial whether the attach- ment be made while the goods are en route, or after arriving OP SALES. 121 at the freight depot, from which the purchaser receives his goods. Being an adverse right, it cannot be defeated by any act of the consignee or of his creditors, till actual possession is ob- tained by the purchaser, except (in the case of goods shipped upon the water) by bona fide sale, and endorsement of the bill of lading. A Bill of Lading, being by the custom of merchants ne- gotiable, the same effect is given to a Bill of Sale, accom- panied by its transfer, as is given to the transfer by endorse- ment and sale, in good faith, of any negotiable security. To illustrate by familiar example : — All business men know, that a seller has a lien on goods sold, to be paid for on delivery, while they remain on his premises ; and he may hold them till full payment is actually made. Now whenever insolvency of the purchaser supervenes, between the sale and an actual, perfected, delivery to him, — extend this same lien and make the premises of the seller, for the working out of your lien, include all places till the goods are actually re- ceived by the purchaser, and you have the extended lien aris- ing out of this right of stoppage in transitu. Fourth, How is the right exercised ? Not, necessarily, (as we have seen) by actual seizure of the goods, — though, of course, to save trouble and complica- tion, it is desirable to do so if it can be done, — but it is suf- ficient to give notice to the carrier in whose hands they are ; on the receipt of which notice, it becomes the duty of the carrier to retain the goods for the consignor ; and if afterwards, even by mistake, he delivers them to the vendee, he would become liable in trover or other suitable action, on behalf of the consignor, who has right to them or their value, even against the assignees in bankruptcy of the insolvent vendee. The notice, to be effectual, must be given to the one who has the actual custody of the goods. If given to a principal, whose servant has the custody, it should be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, can communicate it to his servant. 122 OP SALES. The seller may still sue for the price, or prove his debt, against the estate of the bankrupt, — if he is ready to deliver the goods when he is paid the amount due, — although he has seized and is holding the goods. If part payment has been made, he may still seize the goods in transitu for the balance, — as part payment only diminishes the lien pro tanto. The seller, who stops in their transit, goods sold by him, does not thereby become again their owner ; he has only a lien for payment of the amount due him upon their sale. The vendor should, therefore, after he has seized the goods, request the vendee or his assignee to pay for, and take them. If, on such request, he or his assignee does not take them away and pay for them in a reasonable time, the sale may be treated as dissolved, and the seller may dispose of them again. The taking of a note of the purchaser, for the price of the goods, will not amount to such payment as will prevent the seller from exercising the right of stoppage in transitu, even in a state in which the taking of such a note is presumed to be in payment of the purchase money ; as this presumption is met by the fact, that the seller would, if the note were taken in payment, lose this right, and the presumption will therefore not be made. If expressly agreed to be in payment, the right is of course gone. 1. Bill op Sale, with Warranties. I, A. B., in consideration of dollars to me paid before the delivery hereof by C. D. of , the receipt whereof is hereby acknowledged, have sold, and by these presents do convey to said CD. and his assigns, the following articles of personal property : — [Here specify the articles sold]. And I hereby agree with said C. D. to warrant and defend the title of said goods and chattels hereby sold, to him and his assigns against all and every person. [If to the warranty of title there is to be added other warranties as to quality OF SALES. 123 &c., add:] And I hereby warrant the said flour to be " P. F. F. G." as to brand, and in perfect condition. [Add any otlier warranty as to quality or otherwise as may be de- sired] . Witness my hand this day of , A. D. 18 . A. B. Same — Shorter Form. I, A. B. of , in consideration of dollars paid by C. D., of , hereby sell and convey to said C. D. the fol- lowing personal property, [Here insert schedule of articles], warranted against adverse claiihs. Witness my hand this day of , A. D. 18 , A. B. 2. Bill op Sale with Warranty. Hartford, , 18 . I have this day sold to A. B. of Albany, one gray horse for three hundred dollars, the receipt whereof I hereby acknowl- edge, and in consideration thereof I warrant said horse to be sound, kind, free from vice, and not more than years old. C. D. Note. This may be raried to suit different cases, and the foregoing seventh section of the chapter on sales will show what words or acts are sufBcient in any case to constitute a guaranty. It is a general rule, that if a seller of personal property make any statement respecting the kind, quaUty or condition of the article, upon which he intends the purchaser should rely as a fact, and upon which he does rely, such statement is to be deemed a warranty. Warranty must accompany the sale, unless fresh consider- ation be given, otherwise, if made afterward, it is void for want of consideration. 124 OP SALES. 3. Bill op Sale — Common Form — Without Warranty. Hartford, , 18 . Messrs. S. J. Havens & Co., Bought of F. E. Betts & Co., One set Hawthorne's Works, 14 vols., complete, f 35.00 One " Schiller's Works, 4 vols.^ 1-2 calf, - 12.00 One " Olshausen's Commentaries, 7 vols., - 28.00 175.00 Received Payment, F. E. BETTS & CO., By Fenton. CHAPTER VII. OP LIENS. Section 1. — Definitions. One definition of a lien is, " a right to retain possession of property till some obligation or claim, arising out of some- thing done upon it by way of repair or addition, or in some ■way attached to it, has been paid. This restricted definition implies, that the property upon ■which the lien rests is in the possession of the party claim- ing the lien. Tliis ■was true as to most, if not all, liens aris- ing out of the common law. In maritime law, liens exist, where the party never has possession, actual or constructive. ' A bottomry bond gives such a lien. Equity also works out, in favor of a seller, a lien upon land for the purchase money, which remains unpaid. A lien is not a right of property in the thing, but an in- cumhrance resting upon it, till some charge upon it has been paid. The existence of the lien does not prevent the party en- titled to it from enforcing at law, by suit or otherwise, collec- tion of his debt. The follo^wing classes of persons are entitled to a lien at common law : First, Bailees who perform service upon the thing put into their hands at the request of the bailor. Second, Hotel Keepers have a lien upon the baggage of their guests, for the amount properly charged for accommo- dations. Third, Common Carriers, upon land and water, have a lien upon the goods which they carry, for the amount due for freight. 126 OP LIENS. Fourth, Vendors, or sellers of goods, have commonly a lien for the price, upon goods sold without credit. Fifth, Agents or Factors have a lien upon the goods of their principals, for advancements made for their benefit. Sixth, At common law. Ship Builders have also a lien upon the ship, while in their possession. In addition to these common-law liens, there are now, in nearly or quite all our States, provisions for securing to me- chanics, their wages ; and to those who furnish materials for a building, their pay. These provisions are called. Builders' Lien, and Mechanics' Lien laws. Every mechanic employed upon a house or vessel, and, in some of the States, upon any sort of property or thing, either in its construction or repair, has a lien upon it for the amount of his wages ; so the material man for the amount due him for materials furnished. This lien is fixed for a time named in the statute, and within that time the party, in whose favor the lien exists, must take steps to enforce it, in the mode pointed out by the ■statute. In some States, he files a petition to the proper court, set- ting forth the facts ; in others, he is to sue and attach the property. In all, the end sought is the same, — the appropri- ation, within a limited time, of the property, in payment of the debt, unless the owner discharges the lien by its pay- ment. The purpose of these laws is, to aid the mechanic and ma- terial man in securing Ms pay, without fraud upon, or injury to, Ms neighbors. There are, therefore, provisions which are designed to protect third persons against being defrauded by these liens. These provisions are quite various. Generally, something must be done to enable the party to acquire the lien. In some of the States, the contract, under which the work is done or materials furnished, must be written and re- corded in some specified public registry. In some, notice of the intention to acquire a lien must be given to the owner of the property. OP LIENS. 127 Generally the lien expires in a limited time, — tliirty, sixty, or ninety days, — imless it is enforced by proper proceedings. The reasons of these precautions are manifest : it would be unjust, while providing for the security of one class, to allow a third party, dealing in good faith, and without oppor- tunity of knowing of any encumbrance, to purchase and pay for a house, or other property, and afterwards learn that the builder or material man has a lien upon it, of which he knew nothing, and against which he has, perhaps, now no means of adequate protection. And it would be equally un- just for an ownier, who had carefully contracted with a master workman, builder or employer, to repair his house, after settling with his contractor, and paying him the full amount of his bill, to find that he was still obliged to pay each indi- vidual woi-kman employed by the builder. With all the care that may be bestowed upon this class of legislation, injustice will sometimes result from it. A late mechanics' lien law of Massachusetts was so imperfectly guarded in these respects, that, under its express provisions, a building committee of a religious society, who had fully paid their builder (with whom they had a written contract) for all work done and materials furnished for a churcli, were compelled to pay several hundred dollars to individual work- men, employed by the builder in his shop, miles away, in another town, and who had never seen the building, but had prepared the doors, blinds, windows, &c., for it, while work- ing by the month for their employer ; and this was a case where the builder had become insolvent, and the loss came upon a religious society, who were poorly able to be so vic- timized by imperfect and, therefore, unjust legislation. Tlie statutes upon these subjects undergo frequent changes of more or less importance, and an attempt to give the statu- tory provisions of the different States in detail, would be more likely to mislead than to benefit. My purpose, therefore, will be to give the principles upon which this clause of legislation is predicated, and to advise the mechanic or material man who would avail himself of them, or the owner who wishes to protect himself against a double payment, to look carefully 128 OF LIENS. to the statute law of the State in which his property is, and observe and conform to its directions. In a matter of this importance, no mechanic would be likely to trust his own skill to file his petition or enforce his lien ; nor would a wise owner act without counsel, in a case where he had reason to apprehend existing encum- brances ; and the counsel employed can easily advise what may then and there be tlie precise local law upon this subject. Section 2. Common Law Liens, how Acquired, and Different Kinds. These liens are not only reserved to the various classes named in Section 1, but are of two kinds, — general, and par- ticular, or special. A special lien gives only a right to retain the particular property upon which it rests. The workman may retain the article upon which his labor has been expended, the expressman the goods he has carried, and the seller the thing sold. This sort of lien is a favorite of the law, and is liberally construed. It is not barred by statutes of limitation, or lapse of time. The claimant of it is in possession of the property, and, so long as he retains that, is secure of his lien till the debt or charge is paid. The thing, so in possession of the claimant of a lien, can- not be attached or seized on execution by the creditors of its owner, till the lien is paid ; as it takes precedence of all claims of creditors, purchasers or an assignee in bankruptcy. The law may sometimes give a sheriff, messenger, or assignee, a right to take possession and sell, but always subject to the lien ; and if sold, the proceeds must first be applied in dis- charge of the lien. General liens are usually claimed by factors and agents upon property in their charge, to secure a general balance of account. Unlike the special lien of the workman, these receive a strict construction. Hotel keepers and common carriers are bound by law, the one class to receive as guests such persons as apply, and the OP LIENS. 129 other to carry such goods as are offered. This arises out of their holding themselves out to the world as ready to furnish such accommodations to all who may apply, and they are bound to make good their representations. Being under these extraordinary obligations and burdens, it is certainly no more than equitable that they should be entitled to extra- ordinary remedies. The right to retain baggage of a guest has sometimes been given by special statute to a boarding house keeper, but without special legislation this class of per- sons have no lien xipon the property of their boarders. An agistor (pasturer of cattle) or livery stable keeper has no lien, in the absence of an express agreement therefor. Sailors at sea have a liberal lien upon goods wrecked, but finders of goods upon land have no lien, unless by statute regulation and provision. No man has a lien upon goods which he has acquired by a wrongful act. As, if you pay charges upon goods without request of the owner, for the purpose of obtaining possession and a lien xipon them, you do not thus secure a lien. Nor can one, who has acquired possession by misrepresentation and falsehood, although a debt is actually due him. A lien is not trans- ferrable, therefore you cannot acquire one by assignment. You cannot acquire a lien where the person, who gave you possession of the goods, had no authority to give possession. As, where a thief delivers goods to a common carrier to be carried, the carrier acquires no lien. An exception to this rule has in some cases been made in favor of an inn- keeper, on the ground that the animal fed by him had been benefited, and kept in life thereby for the owner. Section 3. Hoiv a Lien may be Lost. We have spoken of a general common law lien, as a " right to retain possession of property till some charge upon it is paid." As to all such liens, the general principle is, that the lien ceases when the possession is voluntarily relinquished. If the surrender be induced by fraud, or compelled by force, the lien is not lost, but possession may be retaken, peaceably 9 130 OP LIENS. if there is no resistance, and if there is opj^osition, by re- plcvhi. Any change in the character of the holding destroys the lien ; as, if the party entitled to it attaches the goods, or seizes them on execution. If, when the goods are called for, the party does not assert his lien and his intention to rely upon it, but claims to retain them on some other ground, this would be evidence that lie intended to waive his lien. If a debt is secured by a lien upon property, and the par- ties agree subsequently upon a specified mode of payment, the creditor should expressly reserve his rights of lien, if he does not intend to waive them. In all the cases, in which a lien is provided and secixred by statute, the party entitled to its benefits will lose them, if he fails to proceed according to the requirements of the' stat- ute, to perfect and enforce it. A giving of credit to any extent is inconsistent with tlxc light of lien, and after the lien has been enjoyed by the sel- ler's continuing possession, he must, if he would give time for payment, expressly stipulate that the lien shall continue, or it is lost. Mechanics Lien. ' Nearly all states have enacted lien laws, (to which refer.) Three things are usually required to be done by the person furnishing materials or performing labor, to secure his lien : First. Notice must be given, by the person furnishing materials, to the owner, that he intends to claim such lien. Second. The contract, specification, certificate or claim, should be filed or recorded within a certain time. The following form may generally be safely followed : Certificate for Work or Labor. — To be Recorded. I, A. B., of , hereby claim a lien upon the estate situated (here describe the premises) ; to secure payment of dollars and cents, being wages due me, after de- ducting all just credits, for work done and performed in OP LIENS. 131 building, (altering or repairing, or fui'nishing materials, as the case may be,) said premises, according to the following bill :— (Here insert the bill.) ■C. D.. of , is owner of said premises, and E. F., of 5 the contractor, under whom the work was per- formed. A. B. ss. B , , 18 State of , County of , Personally appeared the above named A. B., and made oath (or affirmed) that the foregoing certificate by him sub- scribed is true. Before me, E. G., Justice of the Peace. Third. It is necessary that action or suit on the lien should be .commenced within a specified time. A petition to enforce a mechanics lien must contain a brief statement of the contract, upon which it is founded ; that is, it must show what the contract was. The petition must aver that the person, with whom the contract was made, was either the owner of the premises, or yf&s a person who had conti-acted'with such owner for erecting, altering or repairing the building. Merely alleging him to be the contractor and supposed owner thereof is insufficient. — 11 Cush. Eep., 308. CHAPTER VIII. OF TITLE BT GIFT. Rights in property may be acquired by gift, as well as by purchase ; and of gifts there are in law two kinds : 1. Gifts simple and absolute, and to take effect immediate- ly in the life time of the giver. 2. Gifts in apprehension of death, and which are not to take effect till after the death of the giver. To perfect a gift of either species, delivery of the thmg given is essential, which delivery must in this, as in other cases, be conformed to the nature of the thing given. It must be an actual delivery, if the subject-matter given be capable of such delivery. The giver must part with the possession, and with the con- trol of the property. If it be of a negotiable security, or other similar property, requiring an assignment or endorsement, the instrument of transfer must be actually executed. When the gift is perfected, by delivery and acceptance, it becomes irrevocable, unless it be in fraud and prejudice of creditors, or unless the giver was under some legal incapacity, or was imposed upon and circumvented by artifice, misrepre- sentation or fraud. A gift which would so divest the giver of estate, that his creditors could not secure their claims, would be voidable at their option. A promise to give, however carefully made and clearly ex- pressed, cannot be enforced, for reasons given in the chapter on contracts. It is, till delivery, at the utmost, not more or higher in character than a promise or contract and, being without con- OP TITLE BY GIFT. 133 sideration, the la-w -will not enforce it, but leaves it to rest upon the conscience and morality of the giver. It is of course immaterial that the promise to give is in writing, the defect not being one of form, or of evidence, but of substance ; it is a naked promise, and the law does not respect it. Gifts in apprehension of death are in this respect like a legacy, they do not take effect, and are not designed to do so, unless or until the giver shall die ; but they differ from a legacy in several important respects. A legacy is secured by the formalities of a will, and the property given therein need not be delivered to the legatee, as in the case of a gift it must be ; and a legacy takes effect upon the death of the giver, whenever he may die, and although he may have recov- ered from one or more sicknesses between the date of his will and his death ; while if a donor of a gift causa mortis recovers from the sickness, which awakened apprehensions of death, he may recover the gift and retain it, as if no do- nation of the article had been made. Though an ^ception to this would occur when the appre- hension of death ai'ose from old age and infirmity, as old age must continue and increase till the gift is perfected by the occurrence of that which was apprehended. The delivery of a note of a third person, or of bank bills, or of a bond and mortgage, would probably be held good as a gift in apprehension of death, though the cases are not uni- form. 3. Gift of chattels to a married daughter to her separate use. I, A. B., of , in the County of , and State of , merchant, in consideration of affection for my daughter E. A., wife of R. A., of , aforesaid, and for divers other good and valuable considerations, do hereby give to my said daughter E. A., her heirs and assigns, all and singular the goods and chattels following, to wit : (or, say, goods and chattels mentioned in the schedule hereto annexed.) 3 Bureaus, — marked E. A. on the back. I Table, — niarked E. A. on the leaf. II Mahogany Chairs, — marked E. A. under the bottom. 134 OP TITLE Br GIFT. 3 Silver Table Spoons, — marked E. A. on the handle. 13 Silver Tea Spoons, — ^marked E. A. on the handle. 2 Silver Tankards,— marked E. A. on the side. To hold the above described chattels to her sole and sepa- rate nse, free from the interference and control of her pres- ent, or any future husband, and to her heirs and assigns, to her and their sole use and behoof forever. In witness whereof, I, the said A. B., have, " Hartford National Bank, pay to (the order of) or (the bearer) five hundred dollars. " James Johnson." Some of the most ingenious and troublesome forgeries, which have occurred in the commercial world, have been accomplished by changing the amount of a genuine check, note, or bill of exchange. Many of these would have been prevented by the exercise of reasonable care on the part of those filling out such in- struments. Blanks are carelessly left, inviting dishonest holders to fill them. It is well to draw a pen along, with such mark as will leave no open and blank space unfilled. The parties to a note are, the maker, and the person to whom it is payable, who is called the payee. When signed by some friend of the maker, to give it additional credit be- fore it is delivered, such friendly signer is called a surety. If payable to the order of any person, it is properly negotiated by putting the name of that person upon the back. This is called an endorsement, and the party so putting his name upon the back is called an endorser. If the endorser wishes to avoid personal liability upon the note, after it has passed from his hands, he should write above his name the words, " without recourse," which is a very brief, but effec- tive, way of informing all parties who afterwards receive it, that they have not, under any circumstances, a claim upon him. This is the only safe way of avoiding such liability ; an agreement at the time of the transfer, that the party en- dorsing shall not be liable, will not prevent a subsequent purchaser of it, without notice, before it is due, from holding the endorser ; the paper itself should notify all persons to whose hands it shall come, as it does when the words " with- out recourse" are written over the name of the endorser. OF COMMEECIAL OR NEGOTIABLE PAPER. 13T There are two kinds of endorsement, general and special. A general endorsement is, where the name of the endorser is written without any direction to pay to any specified person. This is an ordei- to pay to whoever shall present it, and the note thereafter is as if payable to bearer, and need not be again endorsed, upon its subsequent transfer. A note so endorsed, if lost or stolen, may be enforced by any party purchasing it before it is due, even of the thief or finder, in good faith and without notice that the thief or finder has not a good title. Here the effect is, that one, who has no title, by sale to a bona fide purchaser vests a perfect title in his vendee. Now, it is generally true that a man, who has no title to property in Mm, can convey nothing out of him ; but here the party purchasing for full and fair consideration, and in good faith, takes, by force of the superior faith and sanctity at- tributed to negotiable paper, perfect and unimpeachable title, when he from whom he purchased had none. This is a quality in which negotiable securities differ from all other property. A special endorsement is one, in which a particular person is named to whom payment shall be made, and is in this form: " Pay to John Jones." " James Johnson." A note so endorsed can only be paid to John Jones, and can only be sued in his name, and, consequently, if lost or stolen, is useless to the thief or finder, as no person can take title to it except through, or in the name of, John Jones. If the party endorsing wishes to continue the negotiability of the instrument, beyond John Jones, he may still vary the endorsement thus : " Pay to the order of John Jones." "James Johnson." This is equally safe with the last form, as it cannot be transferred, so as to make title beyond John Jones, without his genuine endorsement ; and, if it is paid upon a forged 138 OP COMMERCIAL OB NEGOTIABLE PAPER. endorsement of his name, it must be paid again to liim, or- to his genuine endorsee. Tliis protective character of such an endorsement, is that which renders it necessary for bankers and others, upon whom cliecks and drafts payable to order are drawn, to have the person presenting them, if unknown to the presentee, identified. The parties to a bank bill are merely the bank, (usually represented by the signatures of the president and cashier), and the hearer ; and such bills pass from hand to hand, as is familiarily known, without endorsement, and are never pay- able to order. The parties to a " check" are, the maker, commonly called the drawer, the person to whom it is payable, called as in a note the payee, and the bank or banker upon whom it is drawn, who is usiially called the drawee. When payable (as they frequently are) to the order of the payee, they are transferrable by endorsement, in the same manner, and with the same effect of general and special en- dorsements and endorsements "without recourse," &c., as in the case of promissory notes. The parties to a "bill of exchange" (sometimes called a " draft ") are, the drawer, who makes it, the person to whom it is to be paid, who, as in the case of a check, is called the payee, and the person to whom it is directed, who is called the draivee. If payable otherwise than at sight, it is usually expected that a bill of exchange will be presented to the person upon whom it is drawn, for acceptance, and if he accepts, he is called the " acceptor," and he is thereafter the party prima- rily liable ; that is, he is, like the maker of the note, supposed to be, and treated as, the real debtor. If payable to order, they are, like notes and checks, transferrable by endorsement, and the remarks made as to endorsement of promissory notes apply equally to them. The signature of any of the parties to these instruments may, as is the case in reference to other contracts, be made by the party himself, by another person in his presence and by his direction, (which makes it his), or by a duly author- OF COMMERCIAL Oli NEGOTIABLE PAPER. 139 ized aggnt ; and in the case of a partnership name, any one of the partners is such duly authorized agent. As WG have seen by the forms given, a bill of exchange is a written request or direction, and a promissory note a writ- ten promise by one person to another, for the payment of money at a specified time. Section 2. History of Bills and Notes. Of the different classes of commercial paper, Bills of Ex- change are oldest in history. They seem now to be of such indispensable necessity for the transaction of business, that we wonder how any ex- tended commerce could have existed without them, and they are so obviously feasible an arrangement for transmitting funds from one part of the world to another, without the actual carriage and risk of a real transportation of coin in bulk, that they must probably have early occurred to those who had occasion for their use. This country sends of its cotton and other productions a very large amount annually to England, and we receive from England a much larger amount of manufactured goods. Every merchant understands, that only the halainv of our indebtedness is really transmitted across the water, and a very great saving is thereby made. How is it done? Simply thus: "A" has sold $100,000 worth of cotton to a firm in Liverpool, he sells to a banker in New York his drafts on the Liverpool house for an actual premium, (exchange being against this country, because a balance is always due from us), and thereby not only saves the carriage and the insurance of the money, but the time, which is equivalent to so much interest ; for his drafts are saleable the moment his goods are consigned and insiu-ed. An importing merchant in New York has purchased $100,- 000 worth of goods in Liverpool, and owes for them ; instead of sending the money across, he buys of the banker the drafts of the cotton seller. The banker is a convenient medium between tlie two par- 140 OP COMMEBCIAL OR NEGOTIABLE PAPER. ties ; of course, the one could as well sell directly to the other, without his intervention, if both should happen to meet at the right moment, and be possessed of siich informa- tion as to rates of exchange, responsibility of foreign houses, &c., as would be needed. But such meeting would not al- ways occur at the convenient moment, and such information could not be had, except by a man who should give to it time and attention. It is cheaper and more convenient for both parties, to pay him such commission for buying and selling the exchange, as will reasonably compensate him, than to undertake to do the business between themselves. Now, notwithstanding their simplicity, obvious convenience, and, to our modern commerce, apparent necessity, it is reason- ably, certain that ancient commerce did not employ them. We first hear of them as used by the Jews, when they were driven from country to country, in the transmission of their funds. Why were they not used ? It has been suggested, and is the most probable reason which can be given, that the basis on which the fabric of " exchange " rests being commercial integrity, it was pre- vented by the lach of that basis. There was no such confi- dence in the honesty and honor of commercial and mercantile men in distant parts of the world, where law is feeble and remedies expensive, and where honor is the only practical reliance, as would warrant their use. A case referred to by Chancellor Kent, (3 Com. p. 88), of an Athenian banker, who sold such a bill to Stratocles, shows that its convenience was then well understood, and the fact stated in that case, that the payee took security from the banker for the payment of the bill, shows that it was not deemed at that time a safe mode for the transmission of money, without such special security as would destroy its convenience for the purposes to which it is now so universally applied. ^ Now, as is well known, a circular letter of credit (which is one form of " exchange ") is taken from " Brown Brothers," or any other prominent banking house, upon which the payee OF COMMERCIAL OR NEGOTIABLE PAPER. 141 obtains money from time to time, during a journey of years, and in every principal city of the entire commercial world. No other security but the high standing and commercial honor of the house is needed, to assure to the payee prompt attention to his pecuniary wants, by a banker on the other side of the globe. Occasional transactions have undoubtedly occurred from time to time for many centuries, but tlie en- tire silence of the Roman law in reference to them indicates, that even in the days of Roman pride, power and civilization, they were so exceptional as still to have no history. Their negotiation and regulation by law can be traced back to the year 1394, and to an ordinance of Barcelona. They are of two classes, foreign and inland. Foreign bills are those drawn by a person in one State or country upon a person in another State or country. The States of our xmion are for this purpose foreign ; so that a bill drawn by a man in New York upon a citizen of Hartford, woiild be a foreign bill. Inland bills are those drawn by a citizen of one State or country upon another citizen of the same State or country. The par of exchange is fixed by the proportions of pure gold and silver, and of alloy, in any given weight. The rate of exchange between countries is the actual rate at which bills, drawn in one country upon another, can be sold. This is affected first, by the quality of the coin, and sec- ond, by the demand for exchange upon the country upon which it is drawn. As in the case named, of a balance against this country and in favor of England, the cotton and other products exported from this country to that being less than the amount of our imports from England, there would, of course, be a demand for exchange on England, which would carry up the rate. The general principles, upon which a bill of exchange rests, are, that the person drawing it has funds in the hands of him upon whom it is drawn, and that from those funds he, by drawing the bill, assigns to the payee so much thereof as is equal to the amount of the bill. Of course, when the 142 OF COMMERCIAL OR NEGOTIABLE PAPER. drawee accepts the bill, he owes the drawer so much less. This is the reason why, as we have stated, the acceptor be- comes, after acceptance, the primary debtor ; the drawer and indorsers are then only secondarily liable. Tlie law, which regulates and governs bills of exchange, is known as the law merchant, and is spoken of in the intro- duction as the growth of centuries, and as arising out of cus- toms and usages adopted by merchants and bankers for their accommodation and convenience. Promissory notes are next in historical sequence, and their origin is not more distinctly traceable than that of bills of exchange. They were first known in England about the middle of the 17th century, nearly or quite three hundred years after " bills" came into use among the Jews, and also with the Lombards and on the Mediterranean coasts. They were at first treated and regarded like any other con- tract, and were not so assignable or negotiable as to give a party purchasing them a right of action in his own name. They are now, and have been usually in all commercial countries for some hundreds of years, governed by tlie same laws of negotiability which apply to bills of exchange. This was accomplished in England by statutes, passed in the 3d and 4th years of the reign of Queen Anne, and the 9th and 10th of William III., and these statutes have been generally adopted in this country, either in form or effect, and promissory notes are everywhere negotiable. The local laws of some of the States have slight pecul- iarities, — as in Connecticut, in which State notes under $35 are not negotiable, and in Indiana, only notes payable at a chartered bank within that State are negotiable. But these local exceptions and variations are not import- ant, and do not affect the general principle stated. Section 3. Essential Features of Negotiable Paper. Bills and notes are not confined to any set form of words, and while the forms we have given are those most commonly OF COMMEiiCIAL OS NEGOTIABLE PAPER. 143 in use, a promise or order to deliver, or to account for, or be responsible at a specified time for, so much money, Avould be a good bill or note. It must, however, be payable absolutely and without con- dition, and must be payable in money, although, in some of the States, notes payable in specified personal property are made negotiable, by express statute. In this country we have generally held, that a note payable in bank bills would be a good negotiable note, within the law merchant and our statutes, if confined in its terms to a species of bills universally current as cash. To make the instnnnent negotiable, it must be payable to the payee, or to his order, or assigns, or bearer ; that is, it must have nego- tiable words on its face, which show that its maker meant it should be transferable. Section 4. Difference between Negotiable and Non-negotiable Commercial Paper. Negotiable paper, when transferred before it is due, in good faith and for a valuable consideration, passes to its purchaser a right of action for its amount, without liability to make deduction on account of counter claims against the party to whom it was made, and without being subject to any of the defences, which might have been made against it in the hands of the payee. Paper not negotiable may be assigned and transferred, but a purchaser takes it subject to all defences, which could have been made against it if owned and sued by the original payee. The title to negotiable paper passes to a purchaser by de- livery, if payable to bearer ; if to order, by endorsement and delivery. The amount of a bill or note must be fixed, and if it be fixed in the words in the body of the note, and also in the marginal figures, the words will govern. A note signed by several parties is a joint note, and, if designed to be joint and several, it should be so expressed. 144 OP COMMERCIAL OR NEGOTIABLE PAPER. " For value received, I promise to pay," &c., if signed by more than one, would bind all, but would be a joint and several note. Section 5. Accommodation Paper. An accommodation bill or note is one, which is given or accepted without consideration, when the credit of the maker or acceptor is loaned to the payee or drawer. In the hands of a bona fide holder, it is precisely as bind- ing upon such an accommodation maker as it would be if he had received full value for it. But he is not bound to the party accommodated ; Jie is bound to take it up, or furnish funds to the maker or acceptor to do it with. If an in- dorser pay a bill, he may afterwards sell it ; for all parties to "it, whose names precede his, are liable to him, and he can transfer his right of action ; but when a payee of an accommodation note, having endorsed it, takes it up when or after it becomes due, he, being the party primarily liable, cannot transfer it, but it is a paid and discharged instrument, and is not susceptible of being again negotiated, so as to give to a purchaser a right of action against any other party to it except himself. Section 6. Liabilities of an Indorser, and Notice to him. An endorsement not only transfers the title to a negotiable instrument, so that if received by a purchaser before it is due, in good faith and for value, he takes it free from all defences arising between the original parties, but the endorser (except when the endorsement is " without recourse ") guarantees that the instrument, and all the signatures upon it which precede his are genuine, and that he has good title to the bill or note he endorses, that the party making or accepting is competent to bind himself to the payment, and that if, when presented at maturity, it is not paid by the maker or acceptor, he will, if notice is duly sent to him, pay its amount to the holder. OF COMMERCIAL OR NEGOTIABLE PAPER. 145 To fix the liability of the endorser, when a note is not paid by the maker at matm-ity, the holder should gi^-e immediate notice of the dishonor, to all persons whose names precede his upon the paper, except the party primarily liable, and who has refused payment. If the holder should fail to make demand on the last day of grace, and give immediate notice to the preceding endorsers, they will be discharged. The law merchant annexes " days of grace " to the time named in the note, which in England and the United States are uniformly three days, and a note or bill is not overdue at law till the expiration of business hours on that day ; that is, the maker has the whole of that day in wliich to make pay- ment, before it can be deemed dishonored, or be protested, or notice of non-payment be sent to the endorsers. A note dated on the 20th of December, and payable three months from or after date, would (the day of the date being excluded^ seem, bt/ its terms, to be due on the corresponding (20th) day of March, but it really is due three days later, on the 23d of March. On the evening of the last day of grace, or before the first mail of the next day goes to the town wliere the endorser lives, the party owning a dishonored note should see that notice of its dishonor is sent to «ach of the parties, to whom he has a right to look for payment. When the endorser lives in a different town from that in which the note is payable, it is sufficient to send the notices by mail, duly directed to the post office address of each of the endorsers. But, if the endorser to be notified lives in the same town, it should be delivered to him, or left at his residence, in the evening of the day of dishonor, or during the following day. It is sometimes customary to send a notice only to the last endorser, and leave it for him to notify those who precede him ; and, where the holder does not care to hold any except the last of the endorsers, this is proper and sufficient ; but, if he wishes to retain all the security he has, he should send notices to all, as he cannot otherwise be sure that it will be done. This business is usually done by a "notary," or a 10 146 OP COMMERCIAL OR NEGOTIABLE PAPER. banker's clerk, where the paper is made payable. If it be a foreign bill, (which includes, as will be remembered, drafts or bills of exchange drawn in one State upon a party in an- other), the paper should be protested, and this must be done by a " Notary Public." Unless the holder of endorsed paper is quite familiar with the business, it will always be safer to entrust the giving of the notices to one who has, as a " notary public " should have, skill and experience in such business. The first endorser is liable to every subsequent hona-fide holder, even though the paper be forged or fraudulently put in circulation ; and, if a llaiik (as to amount) note or check be endorsed, the endorser will lie Ijound to pay such amount as the person, to whom he trusts the paper, chooses to insert in it. We have said, that the hona-fide purchaser and holder of negotiable paper is entitled to recover, and to exclude almost every equitable defense, which might have been made against a prior party. This protection is, however, extended only to paper negotiated to the holder, before it is due ; if overdue when negotiated, it is considered as dishonored, and the pur- chaser is properly put upon enquiry, why it was not paid at maturity, and if he enquires of the parties whose names are on the paper, (as he should do before purchasing overdue paper), he will be advised of all such defenses. It has often been made a question, when a note or bill, pay- able on demand, is overdue, so as to subject a piirchaser to the operation of this rule, and, as reasonable time is the only cri- terion, and, as what is reasonable depends upon circumstan- ces, which can rarely be fully known to a purchaser, this (paper payable on demand) is an unsafe species of paper to purchase, when the endorsers are relied upon to make it en- tirely secure, unless, as in some States, there is an express statute provision, fixing the time beyond which an endorser shall not be holden upon such paper. In the absence of such a statute, the reasonableness, or not, of time, is, when the facts and circumstances are fixed, a matter of law, and every case will depend for its decision and result upon its own pe- OP COMMERCIAL OB NEGOTIABLE PAPER. 147 cnliar facts, — eighteen mouths, eleven months, eight months, seven months, five months, three months, and even a less time, have, when nnexplained, been held an um-easonable de- lay, and it must be remembered that, if the demand be not made in what is finally held to have been a reasonable time, the endorsers are discharged. If the note be on interest, and especially when it is payaljle with annual interest, it is a material circumstance accounting for delay. Each party, successively, into whose hands a dishonored bill shall pass, is allowed an entire day in which to notify the endorsers which precede him ; but the holder can only look to those who have had notice in proper time after the dis- honor, without allowing for time to afford to each intervening endorser his day. That is, the holder of a bill or note, to avail himself of notice to a remote endorser, must give it (or see that it is given) within the time in which he would be requii-ed to give notice to his immediate endorser. I have stated, that the notice shoidd be sent on the evening of the day of dis- honor or in season to go by first mail of the succeeding day ; this is entirely safe, and therefore desirable ; but it has com- monly been held, and probably would be in most, if not all, our State courts and courts of the United States, that the law gives the entire next day, (not regarding the fractions of a day), in which to give the notice, and, therefore, if no- tice should be mailed at any time during the next day, in season to go by the next mail thereafter, it would probably be held sufficient. If the party to be notified live out of town, the putting of the letter, properly directed, into the post office is sufficient, though it should happen to miscarry, and notice may be sent to the post office of the party's residence, though he receives his mail at a nearer office in another town. If the endorser has changed his place of residence, with- out the knowledge of the party giving the notice, notice at his former residence will be sufficient, and if the endorser has affixed the name of a place opposite or under his name, 148 OF COMMERCIAL OR NEGOTIABLE PAPER. in such way as to lead reasonably to a belief that it indicated his place of residence, notice may be sent there, though it should prove to be neither his residence nor place of busi- ness ; the rule being, that the law does not presume tiiat the holder is acquainted with the place of residence §f the en- dorsers, and if he follows the best lights he has, and the full- est information he can with reasonable diligence obtain, and cannot aseertain it, or is misled and gives it a wrong direc- tion, the remedy against the endorser is not lost. The rule requiring notice to the endorser is not a trap to catch all parties alike, who, whatever their diligence, hapjien to mistake, but is designed to secure reasonable effort to notify an endorser of his liability, and it must be remem- bered, when his i-esidence is unknown and cannot after proper mquiry be ascertained, that he is not himself without fault, as, by indicating his residence on the paper, he might have secured a proper direction to the notice. The notice should specify the dishonor of the note, and should indicate to the party notified that the holder looks to him for payment. It may come from any person who is a party to the bill, and, if in time, will eiuire to the benefit of every one, who claims against the party notified as a subsequent transferree. No precise form need be followed, but it should state the fact that the instrument is overdue and unpaid, and that the holder looks to the party notified for payment. Wlien it is payable at a particular place, it should set forth its due presentment at that place, as, if such a note has not been duly presented, it may be over due and unpaid without having been dishonored, and without rendering the endorser liable, even if he be duly notified. As, when a note is pay- able at a specified bank, and the maker has funds in the bank for its payment, it will be readily seen that, if not pre- sented at that bank, it is not the fault of the maker that it is not paid, and the maker must be in fault, and his note dis- honored by his neglect, in order to lay the foundation for the liability of an endorser. OF COMMERCIAL OR NEGOTIABLE PAPER. 149 It is best for each endorser, iipon receiving notice, to send notice to those who precede him, as he cannot Icnow that it has been duly given, except (as is the practice of some no- taries) \ylaere tlie notary or clerk minutes upon each notice sent the names of other endorsers notified. The endorser may, and frequently does, waive demand and notice, and such an agreement is valid and binding, without any special consideration. The words over the name of the endorser, and wi'itten by him or with his sanction, " demand and notice waived," are sufficient, and is the \iSTial form. It has been held in one case in a highly respectable court, (Coddington vs. Davis, I. Comstock, N. Y. Court of Appeals, 189, 190), that the words, " protest waived," would be suffi- cient, but this is doubtful, as promissory notes need no pro- test, and a waiver of protest might properly be held to apply only to such official action as would properly be connected with a protest and notice, and not a waiver of proper primary demand by the holder. The holder may not give time to the maker of a note or the acceptor of a bill, iinless he would risk the loss of his claim upon the endorsers, and if he agree to delay collection, by a contract, for such consideration and so made as to be vahd and binding, the endorsers are thereby discharged. A simple forbearance to sue, or taking collateral security from a maker, is no discharge, and is perliaps for the benefit of the endorsers ; but giving a new credit and time by a valid agreement, or accepting a composition and discharging the maker or acceptor, (unless the rights against the endorser or surety are specially reserved in the instrument of discharge), will work such discharge ; the principle being, that the maker of a bill and the endorsers of a note are in the light of sure- ties, and the holder may not in any way diminish or delay the claim, which they would, upon payment, have against their principal. Eeceiving a composition or a dividend from the estate of a bankrupt will not work a discharge of sureties or endorsers, as that cannot prejudice them, but is in aid of their rights and claims. 150 OF COMMERCIAL OR NEGOTIABLE PAPER. What the rule requires is simply, that the holder shall not so deal with the acceptor of the bill or maker of the note, by giving new credit, or additional time, or discharging him upon part payment, as to prejudice the rights of other par- ties to the bill, without their assent. A holder may give time to an endorser, and proceed against prior parties, but he cannot reverse the order. I have said that endorsers are in the " light of sureties," but this must be taken with qualification, for though a surety is discharged, if the party to whom he is bound discharges securities held by him as collateral, the same rule does not apply to an en- dorser, and he will not be discharged, though the payee or a subsequent endorser takes security of the maker and dis- charges it without his assent. Not only does the release, or giving time or new credit to the maker, discharge an endorser, but the release of a p7-ior endorser dischai'ges all subsequent ones. If due notice be not given or demand be not made, yet this may be waived by an endorser, and a subsequent promise to pay, clearly and unconditionally made, with knowledge of the facts, will be evidence of such waiver, even when the party does not ac- tually know the law ; arid any declaration or promise made by ail endorser or his agent, which is equivalent to an ac- knowledgment of liability or a promise to pay, may go to the jury as evidence of due receij)t of notice. There is an anomalous liability, growing out of the e»- dorsenient of a note by a third 'party before it is endorsed by the payee, or of a note payable to bearer, and whenever a party holds such a note it will be well for him to take advice as to the local law, where his claim is to be enforced, or where the contract was made or is specially made payable. In Massachusetts it has been held in a series of cases, and may be considered settled law for that State, that such a writing of the name of a third party upon the back of a note, before the note is delivered to the payee, renders the party liable as a maker and principal, precisely as if his name had been written upon the face of the instrument, under the signature of the principal maker, and he is entitled neither to demand or notice. OF COMMERCIAL OR NEGOTIABLE PAPER. 151 In New York and Connecticut, the liability of sncli a signer upon the back of an instrument is neither that of maker nor endorser, but is that of a guarantor, or surety ; so that, while a holder would not be bound to give him notice, he must not give time to the maker, or release collaterals, and must proceed to collect his note, or give notice to the guarantor witliin a reasonable time, or else, if the yuarantor has been damnified, he will be discharged Section 7. Of the Acceptance of a Bill of Exchange. "We have seen that the maker (or drawer) of a bill of ex- change is presumed to have drawn it upon funds of his in the hands of the drawee, and by drawing and delivering it he is understood to contract that the drawee will, upon pre- sentment, accept it, and that he will pay it according to its tenor, and that if he fails to do so, the drawer will, upon proper notice, pay the amount of the bill himself. This state of law and fact implies that it is the duty of the holder at some time to present it to the drawee for acceptance. This need not usually be done immediately, but, before it is presented for acceptance, Jt may be, and frequently is, passing from hand to hand, and, if the drawer is beyond question good and responsible, it may pay for half the goods in a commercial city before it be really presented for accept- ance. One of the first enquiries a holder of a bill of exchange would be likely to make should be, in what cases an accep- tance must be applied for and either obtained or refused, and in what cases it may or may not be at his election. It is obvious that where the bill is payable by its terms, so many days "after sight," or after demand, the only mode of determining the time of payment is by presenting for accept- ance. Those are the only cases in which presentment for accept- ance is necessary. If payable at a specified day, or so many days after date, the holder, if he does not wish to add to the strength of his 152 OF COJIMKRCIAL OB NEGOTIABLE PAPER. bill by the name of the acceptor, may hold it till it becomes payable, and then present it for payment. Of course he may, in all cases, present and demand acceptance, or refusal to ac- cept, and, as the marketable value of the bill is increased by having on it the name of the pai'ty who is to be primarily lia- ble, it will generally be done. On presentment for acceptance, the drawee should, before accepting, satisfy himself that the handwriting of the drawer is not a forgery, as he is bound to know the signature of his commercial correspondent, and his acceptance precludes him from denying the genuineness of the drawer's signature, and, unless he chooses or expects to become an accommodation acceptor, that he has sufHcient funds of the drawer in his hands to meet the draft. If he has sufficient funds, and they arc due and payable to the drawer, he is still not bound to accept, unless he has agreed to do so, and no action lies against him for a refusal, unless he has received the funds for that purpose or expressly agreed so to do. A promise to accept is equivalent to an ac- ceptance, in fixing the liability of the party so agreeing, where such promise sufficiently describes and identifies the bill, and the party calling for an acceptance has been advised of the promise and has purchased the bill upon the faith of it. The bill must, however, be drawn and presented within a reasonable time after the promise is made. An acceptance may be by parol and become binding, but is inconvenient and troublesome in the proof, and it should be, and usually is, in writing, across the face of the bill. It may be general or special. If special, (as if accepted payable at a particular place), it only binds the acceptor ac- cording to its terms. Any qualified or special acceptance, varying the sum, or time or place of payment, the holder is not bound to accept, but, if he does accept it, he must con- form to it. Any act, the natural and reasonable effect of which is, to give credit to the bill, will be treated as amounting to an ac- ceptance ; as, a retention of it, without explanation, for an un- reasonable time. OP COMMERCIAL OR NEGOTIABLE PAPER. * 153 So, it •would be deemed accepted if the drawee should de- stroy the bill, or refuse to return it. "Wiieu once an acceptance is made, the acceptor becomes tlie principal debtor, and all other parties, including the drawer, are in the light of sureties or endorsers, and while all the others may be discharged by any of the acts, which have been named as sufficient to discharge an endorser, tlie acceptor can be discharged only by payment, or a release. He is boimd to a purchaser in good faith, though he accepted for the accommodation of the drawer and without considera- tion. Though the acceptor is bound to know the signature of the drawer, he is not necessarily acquainted or presumed to be so, with the handwriting of the body of the instrument, and he may be permitted to prove that that is a forgeiy. If acceptance be refused, notice sliould be given as in case of non-payment, but the bill should be retained and again presented for payment, for it cannot be known that the ac- ceptor may not in the meantime liave received funds and be ready and willing to pay. Section 8. Form of Protest for Non-Payment. United States of America. ) State [or " Commonwealth" in Mass. or Virginia.] of \ On the day of ,A.-D. , at the request of , I , a Notary Public, duly admitted and sworn, dwell- ing in the of , did present the original bill, [or note] which is hereto annexed, and demanded payment thereof, which was refused. I therefore, on the same day and year above written, and after said demand and refusal, duly noti- fied the drawer and the several endorsers, of the non-pay- ment, as follows: By sei-ving personally a notice on , at his office. No. Street, in the of : By leaving at the place of residence of , at No. Street, in the of , and by putting in the Post 154 (Jf commercial ob negotiable paper. Office in this city, postage prepaid, notices addressed as follows : One for , directed to him at ; One for , directed to her at ; Each of the above named places being the reputed place of residence of the person to whom the notice was addressed, and the Post Office nearest thereto. Wliereupon I, the said Notary, at the request aforesaid, have protested, and do hereby publicly and solemnly protest, against the drawer and endorsers of the said , and all others concerned, for all exchange, re-exchange, costs, dam- ages and interest, incuiTcd by reason of the non-payment of the said . I also hereto affix a copy of the said notices. In witness whereof, I have hereto subscribed my name and affixed my seal of office: (Seal). A. 'Q., Notary Public. Notice to a Drawer or Endorser. Sir: — Take notice, that a for dollars, indorsed by you, was this day protested for non-payment, and that the holder looks to you for the payment thereof, payment of the same having been this day demanded and refused. Yours, &c., A. B., Notary Public. Note. — Protest for non-acceptance of a bill of exchange may be easily Taried from the above, by inserting, wherever payment and non-payment occur, accept- ance and non-acceptance, instead. For law and directions as to sending of no- tices, time of sending, and as to what paper needs to be protested, see Section 6, of this chapter. CHAPTER X. OF GUARANTY AND SURETYSHIP. Section 1. — Definitions and General Principles. A GUARANTY IS defined to be, " 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 is in tlie first in- stance liable." The engagement is a common one in the business world, and it is important that we should have a clear idea of its general jDrinciples. We have seen that a section of the statute of frauds re- quires the contract of a surety or guarantor to be in writing, because it is " for the debt of another." Like other contracts, it must be upon sufficient considera- tion, but whether the consideration should appear in the writing has been a vexed question, and is differently held in the different States. Where it is held necessary that it should be so expressed, the strictness of the former rules has been relaxed, so that the words, " for value received," are deemed a sufficient ex- pression of the consideration. The person primarily liable is called the principal debtor, and the collateral debtor is called "guarantor," or "surety." It is the distinguishing characteristic of this contract, that there is an original debt or duty, for payment or performance of which a third person agrees, (or in some way intervenes), as an additional security. This suretyship may be by a pledge of property, real or personal, for the payment of such debt, or performance of such duty, as well as by an agreement; and the same gen- 156 OP GUARANTY AND SURETYSHIP. eral rules apply in either case. The guaranty must be upon sufficient consideration, but where it is given at the same time with the making of the original contract, which it se- cures, and the original contract would not have been made without it, that, of itself, is a sufficient consideration. This is, perhaps, much the most frequent example of the contract: "A"is willing to loan money to "B," if he will se- 'cure the payment by a note, with satisfactory surety ;" C " signs the note as surety. The loan is the consideration, not only for the note, but, for the suretyship of the guarantor. Every guaranty, however simple, must, to bind the guar- antor, be in writing; and, as has been stated, the test is, whether there is a principal debt and debtor and a collateral one. "A" goes into a store with " B," and proposes to the mer- chant, " let ' B' have what goods he wants and I will pay for them." It is clear that in this case the merchant would have right to charge the goods sold directly to " A," in which case the contract of "A" need not be in writing, as he is the princi- pal debtor ; but, if the merchant understands it to be an agreement autliorizing him to look to both parties for pay- ment, or if the terms of the proposal and contract be slightly varied, as, "let ' B' have what goods he wants and I will see you paid, or see that he pays you for them," then " B" is the principal debtor, and unless the contract of "A" is in. writ- ing, it is not a valid contract. The contract of guaranty need not always have a valid and binding contract to rest upon as collateral; as, where the principal is an infant, his contract is voidable, but the surety is bound, and can take no advantage of the infancy of his principal. The contract between the principal parties can- not be varied or in any material matter departed from, with- out the consent of the surety, or he may say, " this is not the contract into which I entered," and he will be no longer bound. This result follows equally whether the suretyship is by OP GUARANTY AND SURETYSHIP. 157 the pledge of the property of the surety for the debt of his principal, or his personal contract for its performance. If the debt guarantied become due, any valid agreement for a further extension of credit will discharge the surety. An agreement to guaranty payment for goods, to be sold on six months' credit, will not be yalid if they be sold on three months, not even if the debt is permitted to lie six months. Tliere must be no variation. A guaranty, that a mechanic shall build and complete for me a specified article within a given time, will be dischai'ged if I add in any respect, even with the full consent of the me- chanic, to the labor to be performed upon the article, or, in any essential particular, change its character. A guarantor of payment of a note should have notice, within a reasonable time, of the non-payment of the note, or else he will be discharged, if the maker was solvent when the note became due and has afterwards become insol- vent, so tbat the remedy over of the guarantor is impaired. The difference between his case and that of an endorser being, that the neglect to give notice to a guarantor must have produced some loss or damage. If the guaranty be absolute, and the failure of the princi- pal be a matter equally within the knowledge of the surety, as of the creditor, or, if it can be learned by reasonable dili- gence, the guarantor is bound to inquire of his principal whether he has performed, unless notice be required by the contract of guaranty. \ When a guaranty is, that a debt is ov shall be collectable, legal proceedings must be resorted to, against the parties pri- marily liable, before the guaranty can be enforced. If the creditor has property of the principal debtor in his hands, by way of mortgage, or pledge, or collateral deposit, he must not release it or any portion of it, or he will release the surety, absolutely or pro tanto. In case of payment by the surety, he is entitled to all the securities and collaterals held by the principal creditor, and equity will compel their assignment to him. This is gener- ally denominated subrogation. 158 OF GUARANTY AND SURETYSHIP. A very common form of suretyship is by letters of credit. These may be general, that is, to all or any persons furnish- ing goods upon the faith of them ; or special, to some one person, and they may be confined to a single transaction or be continuing. They should be written with care, and the guarantor may easily confine his guaranty within the limits which he de- signs to observe. There may also be a propqgal to guaranty, which will not amount to a contract binding the proposer, unless the party, to whom it is made, upon accepting it gives notice to the pro- poser, of his acceptance, and that he is acting upon it. The proposer of such a prospective guaranty has clearly a right to know, whether he is acting in that capacity or not, and to give him such knowledge, he must have notice from the party accepting and acting upon, his proposal. Section 2. Forms of Contract'. Some forms of guaranty may perhaps be given here with advantage, even at the risk of their repetition among the forms at the end of the principal text: "Hartford, Dec. 18, 1868." " To A. B. — If you will furnish goods to C. D. to an amount not exceeding two thousand dollars, on a credit of four months, I will guaranty his payment therefor." "E. P." " To Mr. Belknap." " Hartford, Dec. 18, 1868." " A. B. tells me that you propose to furnish him books to the amount of f 1000, if he can procure satisfactory guar- anty therefor, on a credit of six months. I am willing to be his guarantor for that amount." These are both, mere proposals, and the party to whom they are made, if he intends to accept and act upon them, should so inform the party making them. "Hartford, December 18, 1868." " In consideration that A. B. furnish to C. D. goods to the OP GUARANTY AND SURETYSHIP. 159 amount of two thousand dollars, on a credit of four months, I guaranty due payment therefor." " E. F." This is a contract of guaranty, and no notice of its accep- tance need be given to the guarantor. If the purchaser (principal debtor), at the expiration of the credit, desires an extension of time for payment, the sel- ler should require the special written assent of the guaran- tor, which may be in this form: "In consideration that A. B. gives to C. D. additional time to the extent of four months, for payment of the indebted- ness due him from said C. D. guarantied by me, I hereby continue my guaranty for due payment thereof." Hartford, Dec. 18, 1868. "E. P." These are all specimens of special guaranties. A general guaranty may be as follows : " I hereby guaranty payment to any person, who shall ac- cept and retain this instrmuent as a guaranty, for all goods which he may from time to time supply to A. B., of Hart^ ford, not exceeding at any time the amount of one thousand dollars. This to be a continuing giiaranty till specially re- voked. Notice to be given me within ten days after accept- ance." "E. F." Hartford, Dec. 18, 1868. If it is designed to cover only one transaction or amount, it may be as follows : "Hartford, Dec. 18,1868." " I hereby guaranty payment to any person, who shall ac- cept and retain this instrument of guaranty, for goods which he may supply to A. B., to an amount not exceeding one thousand dollars, on a credit not exceeding four months." E. P. If it is desired to prevent the possibility of its being mis- understood and supposed to be a continuing guaranty, these words may be added : 160 OF GUARANTY AND SUEETYSHIP. " This is intended to cover only one amount of $1,000 \rorth of goods, and not as a continuing guaranty." An undertaking to guaranty payment of an existing debt, in consideration of farther ci'edit, may be as follows : " To E. F. :" "Hartford, Dec. 18, 1868." " If you will extend to A. B. 4 months additional credit on his $1,000 note due you on 20th inst., I will guaranty its payment at the expiration of that time." " C. D." An unlimited undertaking may be as follows : " To A. B. :" " Hartford, Dec. 18, 1868." I hereby guaranty payment for all goods which you may sell C. D. after this date." E. P. A guaranty to a lessor, for payment of rent, should usually be written upon the lease, and may be as follows : " In consideration of the execution of this lease, I hereby guaranty punctual payment of the rent received, at the times and in the manner mentioned therein, and in default thereof promise to pay the same on demand." "A. B." This need not be sealed or witnessed, as a consideration is expressed, and the only advantage of a seal is, to make it good and valid in the absence of a consideration. It will be seen that this guaranty is confined to " payment of rewi;" — if the lessor desires a guaranty of performance of all the agreements of the lessee contained in the lease, he will, of course, so express it, which may be done as follows : " In consideration of the execution of this lease, I hereby guaranty performance, according to their tenor, of all the agreements herein contained, on the part of the lessee to be performed. [And in case of default of the lessee, we agree to perform or pay damages on demand.] " OP GUARANTY AND SURETYSHIP. 161 The part in brackets may be left out without weakening the efficiency of the instrument, if one prefers brevity. If tlie guaranty is not endorsed on the lease, it should refer to it in such manner as will insure its identification. A guaranty upon a promissory note may be as follows : " Pay the bearer, and, for value received, I guaranty pay- ment of the within." "Dated, &c." "A. B." I have written these forms so that they will be valid in all the different States, the expression of the consideration being required in some of them, and being harmless and not bur- densome in those in which it is not required. I have stated that the provision of the Statute of Frauds, which requires that any promise to " answer for the debt, de- fault or miscarriage of another, be in writing, signed by the party to be charged," applies to this class of contracts. I may properly add, that it is not only to be in writing, but must be strictly construed ; that is, to bind the guarantor, a case must be brought within the express terms of the in- strument, and there must have been no departure from its terms. Tor example : if the guarantor agree to pay drafts at sixty days sight, this will not bind if they are drawn on 30 days, or 90 days. As an example of construction, a guaranty that an officer or clerk in a bank shall well and faithfully perform the duties assigned to, and the trusts reposed in, him," is applicable only to his honesty, and not to his ability. These instruments are frequently drawn without sufficient care, and it becomes difficult to determine their limit and effect. Take this example : " I guaranty payment of all such sums, not exceeding Three Thousand Dollars, as shall at any time hereafter be advanced by A. B. to C. D." Is this a continuing guaranty, so that, however numerous the charges may be, the guarantor shall ultimately be held liable for any balance of |3,000, — or is it limited to an ad- 11 162 OP GUARANTY AND SURETYSHIP. vance once made to the extent named ? It is not an easy question to answer. It should undoubtedly be decided by the mtent of the parties, but that intent must be ascertained from the words they use, and it would, perhaps, be differently determined in different cases, and by different tribunals. It is an instrument to be avoided, as likely to bring a better harvest to lawyers than any judicious and prudent business man should voluntarily arrange for in advance. Section 3. How Discharged. A limited guaranty will be terminated and discharged by the expiration of the time, or the filling of the amount, speci- fied in it. If without limitation, it may be discharged by notice from the guarantor, that he will be bound for no supplies thereafter furnished. It would, of course, be extinguished by payment, either of the principal debtor or the guarantor. A compromise between the creditor and principal debtor will also (where the surety has not made the debt his own, by special agreement or arrangement with the creditor) discharge the surety, unless the creditor, in compromising with the principal, specially reserves all his rights and reme- dies against the sureties, in which case the sureties are still liable and, upon payment, they may of course look for indem- nity to their principal, notwithstanding the compromise he has made with his creditor. A creditor may, of course, compromise with a surety with- out discharging the principal, but he can collect only the bal- ance beyond what he has received from the surety. So, he may compromise with one, or a part, of the sureties, without impairing such rights as he would have against the others ; except, that he can recover against them only the same amount or proportions, which they would have paid, if the compromising surety had paid his full share. We have before seen that the giving of time to the princi- pal debtor, upon & valid agreement, discharges the surety. OF GUARANTY AND SURETYSHIP. 163 So, also, the release of security held from the principal as collateral, or any change in the contract. The guaranty will not be effective, and, therefore, never be- come binding, if it has been procured by fraud, misrepresenta- tion or artifice, to which the creditor was a party, or assent> ing, or privy. So, also, if the obligation and indebtment of the principal debtor was procured by such fraud, misrepresentation or arti- fice, it may be avoided by him ; and the same facts will avail the surety in discharge of his agreement. Section 4. Mights of Creditor against Surety. •The liability of the surety is perfected and complete, when the debtor makes default. The creditor may then call upon the surety for payment, having, of course, complied with all stipulations (if any) contained in the agreement of guaranty ; as, to make demand of the principal debtor, to proceed against him at law, to sell and apply any collaterals ui his hands, or any other such stipulation. The creditor is entitled, not only to enforce his agreement against the guarantor persmmlly, but he is also entitled to demand and receive from him any property held by him from the principal debtor as his security. For example : a purchaser of land gives his note, guaran- tied by a third person, for payment of the purchase money, and gives to such guarantor a mortgage to indemnify him for such suretyship. Before the note becomes due, the maker of it fails. The seller of the land (holder of the note) is entitled to the ben- efit of the mortgage, and a court of equity would enforce his right thereto. Section 5. Rights of Surety and Cfuarantor. And, First, as against the creditor. Under the civil (Roman) law, which is now the law of 164 OF GUARANTY AND SURETYSHIP. Louisiana, a surety had, and has, a right to compel the cred- itor, first to enforce compulsory proceedings against the debtor and his property before calling upon him. Our common law, as administered in our States (other than Louisiana), does not recognize this right ; but a creditor may proceed against and enforce his remedies upon all persons and property liable to him, at the same time limiting him, of course, to a single satisfaction. Courts of Equity in this country (as in England) have sometimes given relief ; as. where a creditor has in addition to his persona] remedy against the surety, a fund, a mortgage of realty, or personal collaterals, to which he may resort. A court of equity will, generally, upon oifer of the surety to indemnify the creditor against cost and the risk of delay, compel the creditor, first to apply the fund towards the pay- ment of his debt, or to allow the surety to do it in the name of the creditor. Similar to this equitable right of the surety is his right of subrogation, to which we have before alluded, and which con- sists in the right, upon payment of the debt, to demand and receive from the creditor an assignment of all collaterals, securities and remedies, which the creditor has against the principal debtor, or any other party whose liability is prior to that of the paying surety. ■ This right has been sometimes recognized in cases, where there has been no contract fixing the relative rights and liabil- ities of the parties. For example : a party, whose buildings, being insured are destroyed by fire, upon being paid the amount of his loss by the insurers lias been held, impliedly, to have assigned his claim against a railroad corporation, by whose negligence the fire was occasioned. And where the insurers, in a Case of this kind, without special assignment or license from the owner of the property to sue in his name, commenced and prosecuted such suit against tlie railroad company liable for the loss, the court dis- regarded a release from the owner of the buildings, and held OF GUARANTY AND SURETYSHIP. 165 that the uisured was, notwithstanding such attempt to dis- charge the action, entitled to recover. Second, against the principal. Against the principal a surety has no right, till he is in default. . ^ He may see that he is approaching bankruptcy, and that delay will render his loss certain ; he can take no steps till the debt becomes due, and the debtor fails to pay as stipu- lated. Then he may immediately pay, and take by subroga- tion whatevter collaterals or other advantages are in tlie hands of the creditor, and proceed at once to secure, by suit or otherwise, his indemnity. He need not actually pai/ money. If he has made the debt his own, by his note accepted by the creditor in discharge of the principal debtor, or in any way discharged the liability of the debtor, he may proceed for his indemnity. He may compromise the debt, and discharge all parties, by paying a less amount ; but, in that case, lie will be entitled to recover only the amouut actually paid by him. Section 6. Mights and Remedies of Sureties among Themselves. Where several are equally bound, as sureties, to pay, and one has discharged the entire liability by payment, he is en- titled to rateable contribution from his co-sureties. Tins riglit is implied ; — originally equitable in its character, and enforced in the courts of cliancery, it is now recognized and enforceable at law ; and, bemg an implied right and not depending upon contract, it may be enforced, not only wliere there was no such understanding between the sureties, but wliere they were unknown to each other, and even where the paying surety, at the time he assumed his liability, was igno- rant that he had any co-surety. The real question being, whether they are equally removed from the principal debt and debtor, or are without priority against each other. I have said that this right is recognized and enforceable at law ; but it is a claim within the jurisdiction, in most of the 166 OF GUARANTY AND SURETYSHIP. States, of a court of chancery, and sometimes there are clear and decided advantages from proceeding therein. For example : there are five sureties, — one has paid the whole debt, each should contribute to him one-fifth ; — one is utterly insolvent and unable to pay anything, it clearly is equitable that each of the remainijig three should contribute, to the party who has paid, one-fourth. But the law will not enforce this ; in a suit in such a court, the paying surety can only recover the one-fifth, which is the rateable proportion. Equity apportions the burden and, in such a case, so arranges and enforces the contributions, that each of the solvent sureties shall bear it equally with the others. A paying surety is not entitled to recover interest of his co-sureties upon the money paid by him, nor is he entitled to contribution for the expense of defending a suit brought against him by the creditbr. The reason being, that he might have prevented the cost by paying the debt ; and, if his co-sureties refuse to pay their rateable shares, he has an immediate right of suit, and in his suit may recover interest, — it is not due till he demands it, and, when he demands it and is refused, he should sue. It may always be shown by parol (that is, proof outside of the writing itself), what relation the sureties sustain to each other, with a view to secure, prevent or regulate, con- tribution. Several parties may all appear to be co-sureties, equally and without priority liable to pay the debt and to contribute between themselves. It may be proved by any competent evidence that, in point of fact, " A." was to be primarily liable as between themselves, so tl>at, if he pays, he will be entitled to no contribution, and if another or others pay, they may recover the whole amount of him. of guaranty and suretyship. 167 Section 7. Letter of Credit, General Form. ^ Hartford, March 31, 1869. Gentlemen : — Please deliver to Sydney Jones, books and merchandise in your line, such as he may select, to an amount not exceeding, altogether, the sum of Fifteen Hun- dred Dollars, and I will be responsible to you for his pay- ment for the same, upon such terms as he may ai'range ; you to notify me of the amount and terms of the credit you may give him, and if default is made in the payment to give me notice without unreasonable delay. I am, gentlemen, yours faithfully, Jonathan Goldthwaite. To Messrs. 0. D. Case & Co., Corner Pearl and Trumbull Sts., Hartford, Ct. CHAPTER XI. OF BAILMENTS. Section 1. — Definitions and General Principles. "Bailment" is the delivery of personal property by one person to another, in trust, for the performance of something in relation thereto. The person entrusting and delivering the property is the " bailor." The person receiving it is the " bailee." There is always, upon such delivery by the bailor to the bailee, a condition, either express or implied, that the property shall be restored by the bailee to the bailor, or disposed of ac- cording to his directions, as soon as the purpose for which they are bailed, is answered. There are few men in any kind of business, who do not every week, and very many men every day of the week, con- tract the obligation or acquire the rights of a hirer or a letter to hire, of a borrower or lender, of an expressman or com- mon carrier or of a sender by the expressman or the common carrier, of an innkeeper or a guest at an inn, of an employer of mechanical services upon personal property or a person performing such service, or of a receiver of a deposit, or pledge, or a pledger or depositor. It would, thei'efore, seem to be a subject in which nearly all business men would feel a special interest. First, let us try to get a clear idea of a Bailment, as dis- tinguished from a sale ; for while there is a clear and broad distinction between them, a contract may be so drawn or stated between parties, as to leave, not merely those who made it but, the courts in some doubt to which class it pro- perly belongs. Take the following: " I, W. B. Willard, agree to take of OP BAILMENTS. 169 Keeney Bros, all the corn of good and merchantable quality at their storehouse, and to give them one hundred and ninety- four pounds of first rate meal for every three bushels of corn." He also takes another agreement from the same par- ties, as follows : " We, Keeney Bros., agree to deliver to Wm. B. Willard, a thousand bushels of good mercliantable corn, to he ground into meal. For every three bushels of corn we are to receive two hundred pounds of first rate Indian meal." The first would generally be held by lawyers and courts to be a sale, although the decisions are not entirely uniform, some of the Southern courts having held that this would be a bailment. The last is clearly a contract of bailment. Now it is ex- ceedingly important that these parties should know their rights and liabilities in« the quantity of corn, wliich is the subject-matter of both agreements. If, in the first case, it be a sale, the title passes on delivery, and the property is at the risk of Mr. Willard, and in case of loss by fire, it is his loss, and he must still ^az/ the agreed quantity of meal. While, in the last case, the title to the corn does not pass, and in case of its loss by theft or acci' dental destruction, without fault of the bailee, the loss would fall upon Messrs. Keeney Bros., the bailors. A reasonably clear ground upon which to distinguish is this, where the property is to be kept separately, so as to be. capable of identification, and returned, (the same froferty), in whole or in part, after the service is bestowed upon it or in relation to it, it is a case of bailment. Otherwise it is generally a case of ^le. Now it will be readily seen how easily all question in the first contract could be avoided, and how surely it would be by one whose attention has been called to it, by changing the word, '■'■take" to the word, " buy" — so that the first agreement shall read, " I, Wm. B. Willard, agree to buy," &c. Tliere are several different species of bailment, as the " der posit," or a naked deposit without reward ; — the " marv- date" a gratuitous commission, where the bailee is (without 170 OF BAILMENTS. compensation) to do something upon, or in relation to, the thing bailed ; — " an accommodation,^^ (technically called " coramodatum"), a loan for use, without pay ; — a ^'■pledge" when a thing is bailed as security ; — a hiring for use or let- ting to he used, for reward, including also a hiring of mechani- cal labor ; — an innkeeper's special care of the goods of his guest ; and the special care and service of common carriers, expressmen and telegraph operators. Section 2. Of '■'Deposits." A deposit is a naked bailment without reward, being a simple delivery of goods, monies or securities, by the bailor to the bailee, to be kept by the latter without compensation, and to be returned when called for. . In this case, as the bailee derives no benefit from tlie bail- ment, he is only bound to a reasonable or ordinary, care; and, if there is no special undertaking or agreement on his pai't, is responsible only for gross negligence. Ordinary diligence or care, is that care, which every man of common prudence bestows upon his own concerns. Exti-aordinary care is that, which unusually thoughtful, skilful and prudent persons employ, about their own con- cerns. Slight negligence, is the omission of extraordinary dili- gence. Gross negligence is the omission of ordinary diligence or care. The degree of care and circumspection called for, and the neglect of which would render a bailee responsible in dam- ages, will of course vary with the character of the property bailed. What would be ordinary care, or even extraordinary care of lead, or iron, in bulk, would be gross negligence if the property were diamonds or rubies. The question, whether the bailee has exei'cised due diligence, is always a question of fact for a jury, and is to be decided by them upon the evidence produced before them. The keeper of a OP BAILMENTS. 171 deposit without reward, we have said, is responsible only for gross negligence ; which is ahnost equivalent to a breach of good faith, being the want of that care, which every man of common sense would be expected to take of his own property uuder the circumstances. The law implies (in the absence of an express agreement) a promise, in all cases, even in that of a bailee without reward, that the bailee will keep and deliver, safely and se- curely ; which of course means due care in all cases, but the degree of care varies according to the nature of the bailment, and becomes stringent in cases of Carriers, Inn-keepers, and bailees for hire. The care to be taken of a deposit may be varied by the terms of the acceptance; as, where it is made subject to its being kept in a particular place, as on the deck of a steam- boat, or in a building tlie roof of wliich is somewhat open to the weather; and, when the depositor entrusts his goods, knowing where and how they are to be stored, he is held as assenting to that mode of keeping them, and cannot com- plain if they are injured or destroyed by the ordinary and naturally to be expected perils to which they would be there- by subjected. The degree of care required of a bailee has sometimes been attempted to be limited and fixed by the care which he bestows upon his own property ; and it has been said, that if the bailee be an idle, careless, drunken fellow, and comes home drunk, and leaves all his doors open, by reason where- of the goods deposited are stolen, together with his own, he shall not be charged, because it is the bailor^s own folly to trust such an idle and worthless fellow. Has a bailee on deposit a right to use the thing bailed ? He has not without the assent of the depositor ; but such assent need not, in all cases, be express. It may be, and often is inir plied; as, where the use would obviously benefit the thing, without exposing it to extraordinary peril. For example: a horse may be moderately used, for this is for his health ; he needs the exercise ; and a cow may of course be milked, for this is a necessity, which it would be 172 OP BAILMENTS.' destructive to omit. On the other hand, jewels deposited should not be worn, for, while they will not be thereby in- jured, they would be exposed to greater risk of loss. Tlie bailee is of course bound to return the thing bailed, whenever required to do so. This should be in the same condition in which it was received, unless where it changes by force of its own inherent character, as fruit, or fish, or meats. Wlien a deposit of a perishable nature is decaying and will be ruined, the bailee may, without express direction, make sale of it ; and he will be excused from a return, where he can show that it has been destroyed by an accident, or where it decays and perishes by its own inherent defects and without the fault of the bailee. A bailee is always responsible to the true owner when called upon for any thing in his care, and he cannot in such case shelter himself behind the fact that he has returned the goods to the person from whom he received them, if at the time he returned them he had been notified of the claim of the real owner. He can be in no better situation than he woiild be from whom he received the goods. But, if he have returned them in good faith and without knowledge of the claim of the true owner, he is thereby protected. In this case the bailee, while not entitled to compensation, is entitled to re-imbursement of all necessary expenses ; the request that he would take care of the property giving an implied authority to expend such monies as may be needed for its preservation. A very, common example of this species of bailment is, the deposit by customers of a bank, and other persons who have friendly relations with its officers, of valuable securities„to be kept in the vault with those of sim- ilar character owned by the bank. Section 3. Of Oratuitous Commissions, where the bailee is, without conv- pensation, to do something upon, or in relation to, the thing bailed. The bailee, here is called a^' mandatary P The leading distinction between this and the last species of bailment is, OF BAILMENTS. 173 that tJds consists in something to he done, while in the otlier there is to be mere custody and return. Hence, a difference arises between the degree of care stip- xilated for, in the one case and in tlie other. A hailve of a de- posit without reward is, as has been seen, scarcely liable for anything more than good faith, but he who (even without compensation) undertakes to execute a commission, impliedly stipulates to use a degree of diligence and attention, adequate to its performance. Even good faith requires that every man should perform his actual engagements, and, therefore, this sort of bailee should be held bound to exert himself in proportion to the exigency of the affair he has attempted. It was at one time seriously questioned, whether the neg- lect to perform the commission entrusted to a " mandatary " would subject him to legal liability, — the objection being iirged that it was merely a neglect to do that which a party had undertaken, without consideration. This case arose: B. voluntarily undertakes to carry sev- eral hogsheads of brandy from one cellar and dc]i()sit tliem in another. He receives the hogsheads and enters upon his undertaking, but performs it so carelessly that, by his negli- gence, one of the casks is staved and the brandy lost. This in its day was a famous case, and was most elabo- rately and ably argued by counsel, and discussed by the judges; but, although the undertaking was gratuitous and B. no common carrier, the coiirt held that the plaintiff could re- cover, and it was said by the court that, "the owners trust- ing him with the goods is a sufficient consideration, to oblige him to a careful management." If, in this case, B. had simply agreed to carry the brandies, and had not taken the goods into his possession, or entered upon performance of his agreement, no action would have lain ; for it would then (before the goods were delivered and entrusted to him), have been a naked promise, without con- sideration to support it. The difference here lies between the Mow-doing of a thing, the obligation to do which rests upon a promise without con- 174 Of bailments. sideration, and the mis-doing of the thing, performance of which has been entered upon. A neighbor promises to call and get a letter to be delivered in a neighboring town. He does not call, and ' by reason of the failure to obtain the delivery of the letter you lose an important contract. No action will lie on your behalf. But, suppose he calls and receives the letter, the receipt of that by him is a sufficient consideration, — not necessarily of benefit to him, — but of loss to you in parting with its con- trol ; so that, now, he is responsible to you for all damages sustained by you by reason of his negligence. Of course the question here, as in other cases, is, what is negligence ? If the mandatary be a professional man or a mechanic, he is bound to exercise such skill, in the perform- ance of even a gratuitous undertaking, as one reasonably skilled in the business should possess. But if he is neither a professional man or a mechanic, and not otherwise so situated that his occupation, employment or representations, imply any special knowledge, skill or ca- pacity, he is, if a gratuitous bailee, responsible only for gross negligence or bad faith. As, when a farmer at the request of his neighbor undertakes to obtain a policy of insurance upon his neighbor's house. Having no skill in the business he so negligently drafts the specifications and representations upon which the policy issues that, upon loss by fire, the poli- cy proves to be worthless. It appears that he prociired insu- rance upon his own property similarly situated at the same time, and was guilty of making the same mistake and omis- sion. This would be conclusive evidence of his good faith, which is all that such a person, so situated, stipulates for, and he is not responsible in damages ; but, if he had been an insurance broker, he would clearly have been liable. Although a mandatary is not entitled to compensation for his services, he is entitled to be reimbursed such expenses and charges as he has properly and reasonably incurred in the execution of the mandate, and to be indemnified from liability upon such contracts as he has entered into with OF BAILMENTS. 175 others, and which were reasonably necessary to the proper discharge of the duties he has undertaken. The mandatary is under an imphed obUgation to render, upon request, a full account of his doings, showing that his duties have been properly performed, or, if not performed or imperfectly performed, his excuses therefor. If a mandatary, whose duty consists in the carriage or delivery of articles, should purposely omit to deliver at the proper time, and to the proper person, his possession thereafter becomes wrong- ful, and he is responsible for all loss or damage subsequently occurring to the article, even without his fault. Section 4. Of ^^Accommodation" (^Technically called " Commodatum"^, Being a Loan for Use without Pay. In this case, as the benefit and advantage are entirely with the borrower, he is bound to bestow uncommon care and cir- cumspection in the use of the article, and is to return it in the same condition as when received, subject only to the deterioration, arising from its reasonable use in the business for which it was loaned. He may not apply it to any other use than that for which it was borrowed, nor permit any other person to use it, nor keep it beyond the time limited, nor detain it as a pledge or security for any debt due him from the lender. If the article loaned be perishable, and should deteriorate by natural decay, or be lost by theft, or be injured by an ac- cident or casualty which could not be prevented or guarded against, by diligence and circumspection, or be worn or torn in its reasonable use, without blame properly imputable to the borrower, the owner must bear the loss. The extraordinary diligence, to which such a borrower is bound, is not necessarily satisfied with that degree of care, which he exercises over his own property. If, in the man- agement of his own affairs, he is natm-ally /careless and neg- ligent, this will not excuse him for the want of diligence and 116 OP BAILMENTS. circumspection in the care of an article, the loan of which is made to him for his sole benefit. Still, the lender cannot require a higher degree of dili- gence or care than the known character of the borrower would reasonably entitle him to expect. As, if one lend a powerful and spirited horse to a rider whom he knows to be inexpert, he cannot require of him the care and skill in his management, which he might reasonably expect from an ex- perienced rider. What would be reasonable care in the one, might be negligence in the other. In this case also, what is due diligence or neglect will depend, not only upon the character of the borrower, but upon the nature of the article loaned, and the uses to which it is agreed it may be put. As, if a saddle and its housings be loaned for use on parade upon a gala day, the care it should receive from the borrower should be much higher in degree than that, which would properly be expected, in case of the loan of an ordinary sad- dle for the uses of a long journey. Of course, the borrower is not liable for the loss of an article from the wrongful act of a third person, which he could not foresee or prevent, nor for its destruction by fire or by inevitable casualty. But if his building burns, in which the borrowed article is kept, and he saves his own goods in preference to the borrowed article ; in that case he should pay the loss, for he must bestow upon the borrowed article a degree of care at least equal to that which he bestows upon his own. Questions of great difficulty might here arise. As, in a case where his own goods were of great value and the bor- rowed article comparatively of little worth. Must he here prefer the less valued borrowed article ? It would seem that he should be responsible, as he ought, in no case, to bestow less care upon the borrowed article than upon his own goods ; but as the question, whether there has been negligence, is always one to be decided by a jury, upon the facts in each particular case, upon proper instructions as to the law from the court, it may safely be expected that, in no case, will any practical injustice be done. The borrower is ordinarily to return the article upon de- OF BAILMENTS. 1T7 maud made by the lender. But suppose a case, in -which a pair of horses and a carriage are loaned for a journey of five days, and in the middle of a journey, after three days only have expired, possession is demanded by the lender and he is refused : but tlie borrower returns them at the time origin- ally a!::reed, having only performed the contemplated journey, and in good condition. May tlie lender here maintain an action, on account of refusal, and, if so, to what damages is he entitled ? May not the borrower in defence set up an im- plied contract, that, having borrowed tlie property for the entire journey, there was a contract, implied if not expressed by the lender, that he should have the use thereof till the journey should be completed ? The difficulty, if any, is with the consideration for such contract with the lender. Is there any, and, if so, what is it ? The borrower contracts to exercise care and diligence in the iise of the horses for the entire journey, and at the expiration of the stipulated time to return them. Tliis con- tract he performs. It may, perhaps^ properly be held that the mutual promises are sufficient consideration, each for the other. And if it still be doubted whether the promise of the borrower, which brings or secures neither profit dr advantage to the lender^ would be a sufficient consideration, I thinli it may be replied, that as the borrower has entered upon the journey, the incon- venience, which would result to him from being arrested in its performance, is such consideration of loss to the promisee as, upon pi-inciples which we have heretofore explained, will constitute such sufficient consideration. Tlie borrower has neither general nor special property in the thing loaned ; but his right of possession and temporary use will sustain him in an action of trespass against a wrong- doer, for wrong done to the article while in possession of the borrower, of such character as to diminish its value. The lender may always maintain an action for his damages. The borrower may also have an action, whenever the in- jury goes to his possession, or reduces the value of the article for the temporary use to which he is entitled. 12 178 OP BAILMENTS. The return of the article should properly be made to the owner at tlie place where it belongs, — as the dwelling place, farm, or place of business of the owner, although it may have been taken by the borrower at a different place. The ordinary expenses naturally attendant upon the thing loaned, as the feed of a horse or the supply of a shoe lost in the journey, are hohie by the borrower ; but, if the expenses are extraordinary, and arise from the inherent defect or inferiority of the thing loaned, as the breaking of some portion of a carriage, arising from imperfect and defective construction, without negligence on the part of the borrower, they should be paid by the lender, and the borrower has a lien upon the article for the reimbursement of such extraordinary expenses. Section 5. '^Pledges," or Bailments as Seeurity for the Payment of some Debt, or the Performance of some Agreement. This is a delivery of some article of personal property to a creditor, or contractee, to be kept till the debt is paid or the contract performed. All kinds of personal property, includ- ing negotiable paper, and claims resting vipon written con- tract, may be delivered in pledge. As it is an essential prerequisite of a pledge that the article should be delivered to the pledgee, it is of course necessary that it should be in actual existence and susceptible of de- livery. It is not, in all cases, necessary that the possession of the pledgee should be actual and manual. A large proportion of the capital of every country consists of shares in corpo- rations or joint stock companies. The assignment in pledge of such shares is usually effected by delivery of the certifi- cate of the company, stating the number of shares to which the pledgor is entitled, with a power of attorney to the pledgee, authorizing him to transfer the shares on the books of the company to himself or any third person. The actual transfer is frequently postponed, and, if the pledge is re- deemed, entirely omitted ; but notice of the transfer as such OF BAILMENTS. 179 security should be immediately giveu to the company, other- wise a bona fide purchase and transfer on the company's books by the borrower, in fraud of his pledge, might embar- rass and perhaps destroy the security ; as, until the actual transfer, he would appear on the books to be the true owner. The limitation to property in actual existence precludes, generally, the pledging of that, which is to be acquired in the future ; but an incomplete article, as the hull of a ship, or the body of a carriage, may be pledged, and such pledge will carry with it, for the benefit of the pledgee, such additions as may be made to it by the pledgor during the continuance of the pledge. So, a manufacturer may stipulate with tlie owner of the establishment in which he operates, that he may retain the goods there manufactured, as security for material fur- nished and all advances. In this case there would seem to be lacking those elements of actual existence and delivery, which we have spoken of as essential to a pledge ; but it is in the nature of a pledge, creating a similar security, technically denominated a liypoth- ecation, and it is sufficiently accurate for our purposes to class it among pledges. It is not easy in every case to determine, whetlier the trans- action amounts to a mortgage, or is a conditional sale or a pledge. The question, whether it be a pledge or mortgage, may generally be decided by determining whether the legal title has passed, with a condition revesting it upon payment of the debt or performance of the duty, (which constitutes a mortgage), or whether a mere right of possession with au- thority to sell, in case of default of payment, or non-perform- ance of contract, (which creates a pledge), is the effect of the agreement. A mortgage, a conditional sale, and a pledge, are distinct modes, a choice of wliich has frequently to be made by business men, in selecting and obtaining securities. The first two will be particularly described in other chap- ters, but it may be convenient here, to state such essential elements of difference as characterize tliese different modes of security, with a view to aid the discretion of those, who may be called iipon to choose between them. 180 OF BAILMENTS. In a mortgage, the legal title passes conditionally to the mortgagee, and, if the debt is not paid, or the duty per- formed, the title becomes absolute at law, though regulating statutes, in the various States, usually fix a time, within which it may be redeemed, and, in the absence of such stat^ ute provisions, equity will sometimes interfere, to secure a redemption. As, by the mortgage, the right of property passes to tlie mortgagee, his possession is not, at common law, essential to support his title; But to prevent frauds upon creditors, and bona fide purchasers for full and fair price, thei-e are statute provisions in most, if not all, the States, providing substantially, that no mortgage shall be good and valid, except between the original parties and their heirs, and persons having actual notice thereof, unless the mortgage shall be recorded in the proper registry ; which is usually, in the case of a personal mortgage, the Clerk's office in the town in which the mortgagor lives, or has his principal place of business. This enables parties, exercising proper diligence, to ascer- tain all incumbrances, by mortgage, existing upon the prop- erty of those with whom they deal. In case of a conditional sale, no record of the terms of the sale, or other registration, is required ; but the seller may stipulate in the contract of sale, that he shall remain owner of the property, until the price is ftilly paid. The goods may be delivered to the purchaser, and he acquires the right of using them till the day of payment is reached, when, if he makes payment, his title is perfected. If he makes default, his right in the property ceases. Upon such conditional sale the purchaser acquires no right in the property, till after payment of the price, which can be attached for his debt, or be the subject of levy and sale on execution against him, or by force of which he can make title, even to a purchaser in good faith, for full price, and without notice. This clearly puts it in the power of such conditional pur- chaser, by dishonesty and fraud to deceive parties to whom he may offer to sell the property. It has, for this reason. OP BAILMENTS. 181 been sometimes claimed and strongly urged, that such condi- tional sales should be deemed invalid, as against creditors trusting the purchaser, in the faith of his ownership, and hona fide purchasers without notice of the conditions of the sale. Birt such sales have been recognized, and their conditions sustained against such purchasers and creditors, by the high- est judicial tribunals of several of the States, and their validity may properly be considered settled. The mortgagor is the owner of the property, which he conveys in mortgage, and it may well be held, that creditors, who have known of its ownership, shall have right to presume upon its continu- ance while it remains in his possession, unless they have no- tice to the contrary. But the conditional purchaser does not become the owner of the property until payment is made. He has only the right of using it, and it is a fundamental principle, applicable to all classes of property except nego- tiable securities, that no party can convey any other or higlier right therein, that that of which he is himself the owner ; and, as to the fraud, which such conditional purchaser may by the possession of the property be enabled to perpetrate, the same difficulty exists in the case of hirers and borrowers of property. A pledge differs from a registered mortgage, in that the right of the pledgee is not perfected till he obtains possession, and when that is relinquished his right is extinguished or waived. It also diifers fi-om a mortgage, in that the legal title, which always vests in a mortgagee, does not iimally pass to a pledgee; though the transfer of the legal title to the pledgee is not inconsistent with a pledge, if the debtor has a right to a return of the property, at any time, upon payment of the debt, though it be after it falls due. A pledgee, like a lessee, is estopped from denying the title of him from whom he derives his interest. But when the title of the pledgor is limited, as to an estate for life or for years, the security ob- tained by the creditor is of course limited to such temporary interest, and when that expires he must surrender to the owner of the reversion. 182 OP BAILMENTS. This form of bailment, being for the beneiit of both parties, or one of tliem and a third person, where the pledge is in suretyship, tlie pledgee is bound only to the exercise of ordin- ary care. We have stated that a pledge, must be delivered as security for some debt or duty, but it may be for any sort of duty, so the debt which it secures may be one to be in- curred in the future. The pawnee is secure in the payment of his debt. If the pledge be such as will be injured by use, as clotliing or a carriage, the pawnee cannot use it ; but, if it be jewels, or other property which will not be injured, he may use it, at his peril however in this, that if it be lost or stolen, while he is using it, he shall be responsible therefor, because he is at no expense for keeping such a pledge. But if the pledge be of such a nature that the pledgee is obliged to be at expense in the keeping of it, as a horse, cow, or other animal, he is entitled to the milk of the cow, and may use the horse or other animal, in reimbm'sement of such expense. The pledgee, like a depositary, is entitled to his necessary expenses in the keeping and care of the pledge, unless they have been re-imbursed to him, by the use or profit he has re- ceived. If the pledge be lost or stolen, without fault of the pledgee, he is not responsible for its value, but may collect the debt of the pledgor. He is bound to deliver up the pledge, on payment or ten- der of the debt, or performance of the duty. If he refuse so to deliver up the pledge he becomes a wrong doer, and will be answerable, notwithstanding all care on his part, for any loss or damage, which may afterwards happen to the property. The burden is always upon a pledgee, who refuses to deliver up the property upon proper demand, to excuse himself therefor. This he may do by proving that it has been lost by casualty, or unavoidable accident, or has per- ished from inherent defect or infirmity, without fault on his part. Theft of the article makes & prima fade case of negligence OP BAILMENTS. 183 of the pledgee, which he is bound to meet by proving that he was not in fault. While possession of the article pledged secures payment of the debt, it does not pay it. The pledgee has, therefore, a further right, if the pledgor fails to perform his agreement, to sell the property and re-imburse himself from the proceeds. K the debt be payable on demand, a demand must be made before he has a right to sell ; an agreement in such case, that the pledge may be sold without notice, would nob authorize its sale, without demanding payment of the debt. If the pledge has been improperly sold, the pledgor may sue for its value, without tender of payment of the debt for whicli it was pledged. When commercial paper is pledged, unless there is special agreement for a sale upon default, it cannot be sold, but must be held till it matures aird then be collected. The pledge covers not only the original debt, but interest upon it and all proper expenses attending its collection. The pledgor, having still the general property in the pledge, is en- titled to all things accessorial thereto, as the young of ani- mals, or the wool of sheep. The right of the pledgee to retain the pledge is usually limited by the original debt or duty, as security for whicli it was delivered, but where circumstances Varrant the presump- tion, that a further credit has been asked and given upon the faith of the pledge, it will be extended to such new transac- tion. Where no time is limited for performance of the pledgor's engagement, it must be performed upon demand. The effect of demand and refusal, or of the debts becoming due and re- maining unpaid, does not, as in the case of a mortgage, vest the legal title to the pledge in the pledgee; and most im- portant questions to him are ; what further right this gives him, and how is he to exercise that right ! His rights are twofold : he may proceed personally against the debtor, and collect the, debt without reference to the pledge, or he may proceed against tlie thing pledged, and take the necessary steps to apply that in payment of the debt. 184 OP BAILMENTS. This requires caution, as the pledgee must see that all the rights of the pledgor are secured to him. He should first, in all cases, demand payment or performance, of the pledgor ; this he should do, though the debt is overdue, and though, by the express terms of the pledge, he is authorized to sell at public or private sale without notice to the pledgor. After demand and refusal, he may file his bill in equity, and ob- tain a judicial decree of sale ; or, if he prefers it, may pro- ceed more summarily by selling without judicial process, upon giving reasonable notice to the debtor. He can in no case become owner of the pledge. His only remedy against it is, to sell it and apply the proceeds to the payment of the debt. Nor can he become the purchaser of the article pledged, upon its sale. The law secures to the pledgor a fair sale of his property, by preventing the pledgee from being in any manner interested in its purchase. Upon sale, he may apply of the proceeds a sufficient amount to pay his debt, interest and expenses, and must 9,0- count to the pledgor for the balance. If, where the pledge is of greater value than the debt, the pledgee should attempt a practical appropriation of it, in payment of -the debt, hj re- fusing to sell it, the pledgor would have relief in equity, and could obtain a decree of sale and payment of any surplus to himself. The contract of pledge may be discharged, by payment of the debt, by the destruction or loss, without fault, of the thing pledged, or by a waiver of his rights by the pledgee, as by giving possession of the article. Section 6. Of Hiring and Letting for Reward. This is a contract by which the use of a thing, or labor upon it, are stipulated to be given, for compensation, ex- pressed or implied. We will consider. First, Contracts for the use of a thing. These are among the most frequent contracts in daily life. It has familiar illustration in the hiring of a horse and car- riage at a livery stable. There is usually an express con- OF BAILMENTS. 185 tract, -which not only stipulates for the compensation, but limits the time and purpose, for which the thing hired is to be used. The lettor is bound to fm-nish an article reasona- bly adapted and competent to the uses stipulated for. For example : if a man apply to a stable keeper for a horse to perform a journey of fifty miles in a single day, and the sta- ble keeper upon such an application should let a horse for that use, he woidd be liable in damages if he has good rea- son to believe that the horse furnished cannot perform one half the journey. The hirer is bound to ordinary care and diligence, and is answerable only for want of common diligence ; this species of bailment being like a pledge, one of mutual benefit. He is bound, to use the article with proper care, to apply it to no other use than that stipulated for, and to return it at the expiration of the period for which it was liired. If the article be used for a purpose other than that for which it was hired, the hirer will be liable for any damage which it may receive. The appropriation of an article hired, for any other purpose than that stipulated for, will generally amount to a conversion of the article ; and the k-ttor may refuse to receive it on its return, and demand its value of the hirer. As, where a horse was let to an infant, to be driven from Boston to Salem, on Sunday, and the hirer drove him to Gloucester, he was held liable, in an action of trover, or trespass, for the wrongful appropriation of the horse, although, as an infant, he would not have been responsible upon his contract for him. It follows, from the statement that the hirer is bound to bestow only common diligence, (that is, the diligence which every man of common prudence bestows upon the care and keeping of his own property), that, if the property is in any manner injured while in the custody of the hirer, he, exer- cising such diligence, is not responsiljle therefor. As, if a horse break from a reasonable fastening, or a car- riage be overturned or driven against, with reasonably care- ful guidance the hirer would not be responsible. If the article be lost or damaged, by the hirer or those act- 186 OP BAILMENTS. iug under him, from want of common prudence, he is an- swerable. If a horse let for a journey become lame, without fault of the hirer, and is vmable to perform the journey honae, the owner must pay the expense of his care, and doctoring, and of his return. Second. Another species of hiring is, where the labor and services of others upon an article is the subject of hiring. As, where furniture is sent to a workman to be upholstered or repaired. The article is, of course, liable to be destroyed by accident, or to perish from its own intrinsic defect ; the loss in such a case falls upon the owner of the article, where it occurs without fault or want of diligence on the part of the workman. Whether he can recover compensation for his services upon the article so destroyed depends upon the nature of the contract. If it be so made, that he is to complete his work before payment, and receive a specified sum therefor, and the arti- cle is destroyed by fire or other casualty before the work is completed, he can recover nothing. The article being de- stroyed, he can never fully perform that which was to jpre- cede payment. This species of bailment, being also for the mutual benefit of the parties, only ordinary diligence is required in the care of the property. But where the labor to be performed upon the article requires skill in the performance, and the party employed professes to be competent to the undertaking, he, impliedly if not expressly, stipulates to apply a degree of skill equal to the task. If he performs the service unskil- fully, he not only is entitled to no compensation, but, if dam- ages are sustained, he becomes responsible therefor. The degree of skill stipulated for, is that possessed by a majority of persons employed in the business or profession. In some instances, as in the case of svirgery, he must fol- low settled rules of professional practice. Ordinary skill in that profession has been defined by the Supreme Court of New Hampshire as being, " that degree and amount of knowl- edge and science, which the leading authorities have an- OP BAILMENTS. 187 nouiiced as the result of their researches and experience, vip to the time, or within a reasonable time before, the question to be determined is made." Every man is presumed to possess the ordinary skill requi- site to the proper exercise of the ])rofession, art or trade, "which he undertakes. No general rule here can be laid down ; but the degree of skill and diligence required in- creases in proportion to the value of the article to be operated upon, and to the delicacy and difficulty of the undertaking. Nothing can, however, in any case, be legally required, beyond the ordinary or average skill in the profession or business, to which the person employed belongs ; and where the bailee or person employed does not profess, and is known by the em- ployer not to possess skill in the business, he is responsible only for the reasonable exercise of the capacity and knowl- -edge which he actually has. An important question sometimes arises, as to the rights of a person so employed, where the work fails of completion through his fault or neglect. The answer to this depends upon the nature of the contract. If the employer derives no benefit from the labor performed, the bailee is clearly entitled to no compensation ; and wliere a person agrees to erect a building upon the land of another, on a specified plan, and with certain materials, and he de- parts from the special terms of his contract, by following a different plan or using other materials, it has been held that the builder is entitled to no compensation. Wharf owners, warehouse men, forwarding merchants, and agistors of cattle or other stock, all come under this head of bailments, and are severally responsible only for good faith, ordinary care, and reasonable diligence, unless the duty of common carriers be attached to their other business or character. 188 op bailments. Section 7. Of Common Carriers. A common carrier is one who, as a regular business, un- dertakes, for hire, to convey and deliver the goods of such persons as may employ liim. The occasional transportation of goods, upon special con- tracts, does not render one a oommon carrier. To give him that character, he must be a person, whose position in refer- ence to the public implies a continual offer to carry goods, generally, and for every person, upon being paid a reason- able reward. Familiar illustrations of the common carrier are express- men, railroad companies who transport goods, truckmen, proprietors of stage-coaches who carry goods for hire, and other persons or corporations similarly employed. What specially defines and sets them apart is, that they all carry for hire, without making a particular contract upon each occasion of service. This is by far the most important of all the species of bailments. From a very early time, the common carrier has been held to a stringent and onerous responsibility. He is in the nature of an insurer, and is answerable for every form of accident, including even de- struction of the goods by fire without his fault, and theft or robbery. He is responsible for all losses, not coming within the special exception of the act of God, (meaning inevitable accident, as a stroke of lightning, or other act occurring without the intervention of man), and public enemies. This has been the general and established rule of the com- pion law, in this country and in England, for ages, and the rule is intended to guard against fraud and collusion. It is founded on public policy and convenience, arising out of the ease with which a carrier, having entire control of goods, frequently of great value and far removed from personal supervision of the owner, might fraudulently collude with a robber, make sale of the goods, and appropriate the proceeds, or in some other way cheat and defraud the owner ; and the extreme difficulty which there would be of making proof against him. OF bailment:^. 189 A distinguished English judge says in an early case, (Coggs vs. Bernard), " For though the force be never so great, as if an irresistible multitude of people should rob him, neverthe- less, he is chargeable. And this is a politic establishment, contrived by a policy of the law, for the safety of all persons, the necessity of whose affairs obliges them to trust these sorts of persons, that they may be safe in their way of deal- ing : for else these carriers might have an opportunity of Undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a man- ner as would not be possible to be discovered. And this is the reason the law is founded upon, in that point." The reason, upon which this rule is founded, has less force now than at the time Lord Holt expressed himself in the language jiist quoted. But the rule is still enforced, subject only to modifications arising out of special contract limiting it within narrower bounds, and sometimes it may be limited by general notice, as, that the carrier will not be answerable for goods of special and high value, or beyond a limited amount, without notice, or without extra compensation. It has been held that such notice, if brought to the knowledge of the owner of the goods, is equivalent to a special accept- ance, and is as effective in limiting the liability of the carrier as a special agreement would be ; and the owner must dis- close the value, and pay the premium, or himself bear the risk. Important questions frequently arise where there are suc- cessive carriers, or companies of carriers, over a continuous line of transportation, and no mutuality or copartnership ex- isting between them. Is the company receiving the goods liable for their loss, while being transported by another com- pany, to whom they have been properly delivered at the end of the route of the first carrier ? A package of goods marked for St. Louis, is delivered in Boston to the Boston & Albany railroad, who deliver it in good order to the New York Cen- tral railroad at Albany, and, while being carried on its route between Albany and St. Louis, it is lost. Is the Boston & Albany Railroad Company liable ? Or, must the party ship- 190 OF BAILMENTS. ping the goods look up the wrong-doer, perhaps rendering it necessary for him, to go personally or send over tlie whole line from Boston to St. Louis ? The question is one of great importance and interest to business men, as every one, who has had the misfortune to have goods injured while upon such a transit, has practically learned. In the English courts, the company or carrier receiving the goods, is held liable, and some of the earlier decisions in this country follow the English authorities ; but the general rule in this country is, that, in the absence of regulating stat- utes, carriers receiving goods to transport to a certain place, and at that place transferring them in the ordinary course of business to a responsible carrier, over the continued route, if they are lost after being so transferred, the receiver of the goods is not responsible for the loss. In New York, a statute affecting the case of railway car- riers makes the receiving company responsible, and gives him a remedy over against the company through whose fault the loss occurred. Where a number of railroads, steamboat lines, or other carriers, running a continuous line, though by different com- panies, and perhaps chartered by different States, arrange for the sale of through tickets, and for checking baggage over the entire route, any party receiving sueli check may, in case of loss, recover of the company from whom the ticket was purchased. Whether the same rule would be es- tablished in relation to freight, received under agreements to be shipped by the blue, red, or other lines of cars, running by special agreement between companies owning detached and independent portions of the route, has not yet been judi- cially determined. Wherever the contract of through carriage is of similar purport and effect with that held by the purchaser of a through ticket and baggage check, probably the same rule woidd be applied. A general arrangement for such through lines of freight and passenger transportation, between points as widely separa- OF BAILMENTS. 191 ted as our Atlantic and Pacific seaboard cities are, wonld greatly promote the convenience of those who are obliged to forward goods and baggage, by the different railroad and steamboat companies, whose combined routes make up the entire line. It would be comparatively easy for such companies, to as- certain between themselves by whose fault the loss has occurred, and to make a proper distribution of the burden. With the increased and constantly increasing length of our long lines of railroad communication, and the constantly in- creasing volume of our inter state commerce and traffic, leg- islation, similar to that referred to as existing in New York, would probably promote the convenience of a large portion of our citizens, who have to do business of this sort with these lines of public carriage and transportation. The common carrier, by reason of his public employment as such, is bound to take all the goods offered him, if he be a carrier of goods ; and the persons of passengers, who are in a fit condition to be transported, if he be a carrier of passen- gers. If he should refuse to receive goods in the line of his business, except from inability to carry them, he would be liable in damages. But, to lay the foundation for a recovery of damages, the owner, when offering the goods for transpor- tation, should offer to prepay the amount of the fare or car- riage ; as, although the carrier has a lien upon the goods transported, and upon the baggage of the passenger, for the payment of his hire, he is not bound to give credit relying upon this, but may, in all cases, require payment to be made in advance. The carrier's liability commences from his receipt of goods delivered to him for carriage, and when he advertises or otherwise directs them to be sent to a particular depot or booking office, his liability commences from the time of their delivery to him or his agent at such place. It is not suffi- cient, however, that goods are simply left at such place, but some kind of acceptance of them is indispensable. The same rule holds as to goods and as to the personal baggage of the traveller. The attention of the carrier, or of some au- 19^ OP BAILMENTS. thorized servant dr agent who is in the habit of receiving such goods or baggage, niust be called to it. Hence, if a truckman should leave goods at the freight depot of a rail- way company, without calling the attention of the company or any authorized servant or agent thereto, and the goods should be lost, stolen, or destroyed, before coming to the ac- tual possession or control of the company, the truckman would be answerable, the liability of the company not having commenced. So, if a passenger should leave his valise or overcoat upon the seat of a car, without calling the attention of the con- ductor thereto, and it be lost, the company is not responsible. As before stated, he is liable^ having received the goods or baggage under his charge, for their loss or any injury they may sustain, though ho be wholly free from negligence, unless the loss happens from the act of God or the public enemy. The liability to a passenger for baggage is restricted to such ordinary quantity as travellers usually carry with them, for their personal pleasure or convenience. A large sum of money, not required for the purposes of the journey, carried in a trunk or bag and lost, cannot be recovered under the name of baggage ; though it has been held in reference to the liability of an innkeeperj that he would be responsible to his guest, who had a large amount of money with him, which he kept in a trunk with his ordinary baggage, without calling the attention of the landlord or his servants thereto, that in the event of its loss by tligft or otherwise, the inn- keeper tnust answer therefor. This was in a case decided by the Supreme Court of Massachusetts (Berkshire Woollen Company vs. Proctor, 7th, Cush. 417), and there is a conflict in the cases upon this point. Note. — The guest was .attending to a lawsuit and the money was needed for the purposes of his journey, in the payment of witness' fees and other expenses. A carrier of money will be under the same liability for its loss as a carrier of goods, if that be his business ; as iii thd case of expressmen and proprietors of stage coaches, who are in the habit of carrying packages of liioney and other af- ticles of special value. The same person or corporation may, in additibn tb the OF BAILMENTS. 193 business of a common carrier, be engaged in the business of a warcliouseman, or forwarding merchant. His peculiar lia- bility as a common carrier does not attach to either of these last named employments. He is liable in them, only for the ordinary care of which we have spoken in a former section. It often becomes an important question, whether the lia- bility of such a person or corporation, at the time of the loss, was that of a warehouseman or common carrier. The ques- tion is ably discussed by the Supreme Court of Massachu- setts, in the cases, Thomas vs. B. & P. R. R. Co., 10th Met. 472, and in Norway Plains Co. vs. B. & M. R. R. Co., 1st Gray, 263, and by the Supreme Court of New Hampshire, in a case of Moses vs. B. & M. R. R. Co., 32nd N. H. 523, and by the Supreme Court of Michigan, in case M. C. R. R. vs. Ward, 2nd Mich. 538. The result arrived at by these different courts differs in some particulars. The general rule may be stated with suffi- cient accuracy as follows : If a railway or other carrier re- ceive goods at its depot, to be stored until they can be car- ried, or, if at the end of the transit, they are thus stored for the convenience of the owner ; while thus stored at either end of the route the carrier is liable only a^a warehouse- man ; but, if they are kept for the convenience of the carrier at either end of the transit, his liability is that of a carrier. Thus, in a recent case in Maine, a railway company having a depot at which goods were received with directions to for- ward them, it was held, that while the goods remained in the depot for the convenience of the railroad, mitil they could be forwarded in the usual course of business, the company held them as common carriers and were liable as such. But if the goods are kept in depot, for the convenience of the owner, or of the next carrier upon the route, the transit being as to the receiving company ended, the owners of the depot under such receiving company will be liable, not as common carriers, but as warehouse men only. In the carriage of particular articles, as glass or other fra- gile material requiring peculiar care, the owner may prop- 13 19-4 Of bailments. erly endorse upon them appropriate directions with reference to their care; as, "glass with care," or, "this side up," or, " to be kept dry," and the carrier is bound to follow such di- rections at his peril ; as the owner has a right to judge for himself what position is best adapted to carrying liis goods with safety. The liability of the carrier of passengers is not as broad and unlimited as that of tlie carrier of goods. We have seen that no proof of care will excuse the carrier of goods, if they are lost, damaged, or stolen. He is an insurer against everything but the act of God and the public enemy. But in the case of passengers, proof of the utmost ^-igilance and care will excuse the carrier for damage received by them. While the liability of the carrier of passengers is some- what mitigated, it is still stringent and extreme. Especially in the case of railway companies, there is authority for hold- ing them liable for all injury sustained by passengers, with- out negligence on their part, which it was possible for the company to avoid. We have said that the passenger carrier is obliged to carry all persons who oifer to pay for their trans- portation ; but this statement should be limited, by the con- ditions, first, that he is a fit person and in a fit condition to be received, second, that the carrier have sufficient room, and third, that he has no design to interfere with a carrier's interest, or to disturb his business. A carrier may eject or remove persons, who refuse to obey his reasonable regulations. Hence, where a railway company had a rule requiring passengers, soon after entering the cars, to deliver up their tickets and receive checks in exchange, and a passenger refused to deliver up his ticket, it was held that the conductor might require him to pay his fare, and if he should refuse, might remove him from the car. So, a regulation requiring passengers to exhibit their tick- ets whenever required by the conductor, and directing the removal from the cars of those who should refuse to comply, has been held reasonable and proper, and one the passenger must conform to, under penalty of ejectment. A passenger carrier is bound to transport his passengers OP BAILMENTS. 195 over the whole route, in fit and proper vehicles, at proper speed, and for the reasonable or usual compensation ; to notify his passengers of any special dangers ; to afford similar accommodations and treatment to them all, unless a distinc- tion be justified by the filthy appearance, drunken or danger- ous condition, or misconduct of a passenger. His vehicles must be kept in good condition, and not overloaded, must have suitable and sufiicient motive power, competent and trust- worthy drivers, conductors, and engineers, must take the usual route, stop at the ordinary places with proper intervals for rest and food, and leave the passengers wherever their agreement stipulates, and, in the absence of express agree- ment, at the usual stopping place. In case of railway com- panies, passengers are usually and (in the absence of special agreement) properly received and discharged, only at the depots of the company. The passenger, to become entitled to compensation for in- juries received, must himself have been in the exercise of proper care of his own person. Therefore, it has been held, that where a passenger was injured, while riding with his arm out of the window of the car in which he was seated, the injury occurring by reason of such exposure of his arm, he would not be entitled to compensation ; and the courts have in several recent cases, upon such an admitted state of facts, refused to allow the question, whether the passenger was in the exercise of proper care, to go to a jury, deeming it conclusive evidence of such negligence as should pi^event a recovery. Tlie fare of a passenger includes compensation for the conveyance of ordinary baggage. The term baggage prop- erly includes wearing apparel usually worn by travellers, and articles of ornament and use, or of amusement, as fishing tackle or implements of hunting. In America, a check is usually affixed to each parcel of baggage received by a railway company for transportation, and a duplicate delivered to the passenger. Upon producing the check at the termination of the route, the passenger is entitled to his baggage, and. If it is refused, may maintain 196 OP BAILMENTS. an action therefor. If the check be lost or stolen, the pas- senger may still, upon proper evidence of ownership, main- tain an action for the baggage, if the company refuse to de- liver it to him. The ticket usually given to a passenger may be, and frequently is, limited by writing upon its face the words, "for this day only," or other words of limitation. Such a ticket is not good on any other day, and while it is frequently received as matter of comity to the passenger, the company has a right to refuse it and demand fare. If pay- ment is refused, the passenger may be removed from the cars. The question has come up for judicial consideration, how far it is competent for a passenger carrier to limit his liabil- ity for injuries to the person of his passengers. It is settled that he may, by express stipulation, relieve himself to a lim- ited extent, from the consequences of his negligence, or that of his servants. He is, however, still liable for what would be regarded as a fault or misconduct on his part, and is still bound to observe reasonable care and diligence ; to employ persons of requisite skill, and proper and fit motive power and carriages. It is common for railroads to give a " pass " to drovers and other persons having large business for the road ; those to drovers have usually endorsed upon them, a provision substantially as follows : " The persons riding free, to take charge of the stock, do so at their own risk of personal in- jury, from whatever cause." Sometimes an endorsement upon the back of a general " pass," is still more explicit, as fol- lows : " The person who accepts and uses this free ticket thereby assumes all risk of accident, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence by their agents or otherwise, for any loss or injury sustained by him, in his person or property, while using this ticket." Neither of these stipulations exempts the carrier from lia- bility for gross negligence, or for the want of ordinary care. If an accident occurs, negligence is always presumed on the part of the carrier, and the burden is upon him to show that OF BAILMENTS. 19T there has been no disregard of his duties, and that the acci- dent resulted from a cause, which care and diligence could not prevent. On the other hand, the passenger claiming damage is bound to prove, that he was in the exercise of due care of his own person, and that no fault of his contributed to pro- duce the injury. Printed rules and regulations of railroad corporations and steamboat companies are frequently posted up, for the gui- dance of passengers ; for example, passengers are forbidden to ride on tire platform or in the baggage car. Wherever the regulation is reasonable, as in the examples given, the passenger is bound to conform to it. If an accident happens, and he is injured in consequence of his disregard of such a regulation, the carrier is not liable ; but if a collision should occur, and such passenger be injured thereby, his disregard of the regulation not contributing to produce the injury, the carrier would be responsible. If a servant or agent of such a company is injured by the fault of a fellow servant or agent or by reason of any accident, occurring without gross neg- ligence on the part of the company, he is without remedy. It is one of the risks of the business in which he is engaged. Section 8. Of Innkeepers and their Liabilities. An innkeeper, at common law, was held to the same strict and severe responsibility as a common carrier. The principle was taken from the Roman law, and has been adopted into all modern jurisprudence. He is responsible for the property of his guests, properly committed to his care ; unless the loss is caused by the fault, negligence, or omission of his guest, 'by inevitable accident, • by the act of God, or of the public enemy. Under so rigorous a responsibility it becomes an important question, who are innkeepers, and who are to be considered guests ? An " inn " is usually defined to be, a place for the lodging and entertainment of travellers, their attendants and horses, 198 OF BAILMENTS. for a reasdnable compensation. It is a house where travellers, as distinguished from neighhors and townsmen, are provided with rest and refreshment on their way. The innkeeper, like the common carrier, holds himself out to the public as ready to receive and accommodate all, with- out special agreement in each particular case. In this he differs from a boarding house keeper, who selects the persons whom lie will accommodate, and makes a special contract in each case. The former is like a common carrier in his respon- sibility for the goods of his guests, as well as in the general accommodation which he offers to all. In most of the States there are statute regulations, apply- ing to inns and taverns. They must usually be licensed, and the special privileges thereby conferred upon them constitute a personal trust, not susceptible of being enjoyed by any per- son, other than him upon whom it was originally conferred. In most of the States there are also statutes allowing the innkeeper, to provide a " safe," or other convenient place, for the keeping of money, jewels and valuables belonging to his guest, and to post a notice to that effect in each room occu- pied by guests, in such conspicuous place as to be likely to attract their attention. The posting of such notice is treated as notice to the guest, and he is required to deliver his money and other specified valuables, to the proprietor, to be de- posited in the safe, if he intends to hold him responsible for their safety. An innkeeper is bound to receive as guests and entertain, to the extent of his accommodations, all ordinary travellers, who call upon him. His refusal would expose him to an action and, under some circumstances, to an indictment. He may refuse one whose conduct is disorderly, or who has an infectious disease, or whose character is such as to justify the presumption, that his presence would endanger the safety of his other guests, — as a pickpocket, or a notorious fighting character. The principal arrangement relates to the accommodation of the guest ; but incidental thereto, is the receipt and care of his baggage. This he may not refuse, because of unwill- OP BAILMENTS. 199 ingiicss to ti-ust his own servants, or because of suspiciuus characters stopping at his house. Ue is answerable for the conduct of his servants, and is not obliged to entertain sus- picious persons in his house. He also, like a common carrier, has a right to demand payment in advance, and he may refuse one unable to pay proper compensation for the accommodations furnished. He has a lien on all the goods of his guest at the inn, for his ex- penses there. Purchasing liquor at a licensed inn has been held sufficient to constitute one a guest, and to entitle his clothing and bag- gage to protection. In Dickenson vs. Winchester, 4th Gush. 114, it was held, that where a landlord engaged to take travellers " free," from the station to his hotel, he would be liable for a trunk lost on the way. The relation of innkeeper and guest ceases, when the latter has paid his bill and left the house, with a declared purpose of not returning. A traveller stopping at an inn does not cease to be a guest and become a boarder, by making an agreement to pay by the week. The length of time he remains, whether an hour, or a week, or a year, does not necessarily determine his char- acter. If he takes a room, and leaves his baggage there, paying the compensation demanded for a gnest, and goes elsewhere to lodge, he is still a guest, and his baggage is entitled to tlie extraordinary protection required from a landlord : but the relation of guest is not created, by simply leanng baggage at an inn, without taking a room or paying a compensation. Although the general liability of a landlord, for the goods of those stopping in his house, is that of an innkeeper, it may become, by special contract to board and live there, the restricted liability of a boarding house keeper, who is respon- sible only for ordinary care, like a common bailee. In most of the States, parties may now be witnesses in their own cases. In other States, no person can testify in any case in which he is a party, or has any pecuniary interest. Everywhere, however, under the common law, in an action 200 OF BAILMENTS. against an innkeeper for the loss of baggage, the guest is permitted to testify to tlie character and value of personal baggage lost. This is from a necessity of this particular case, where other evidence could rarely be expected, and to prevent a failure of justice. The liability of the innkeeper extends not only for the per- sonal baggage of the guest, but for the horses, hariiess, car- riages, and wagons of the guest, and for their contents. He has been held responsible for a theft of bags of grain in a loaded sleigh of a guest, which was in an out house with fastened doors. The sleigh was deemed to be in the care of the host as innkeeper, and he liable therefor, without negli- gence being proved against him. In short, he is, like a common carrier, substantially an in- surer of the goods of his guest, and can only limit his liability by express agreement or notice. Contracts for carriage of goods by railroads and other common carriers, are quite various, the following, with its conditions, is a common form : No. 1. Eeceipt and Contract for Transportation, with Conditions. Eailroad Company, No. 186 . Received from , as Consignor, the articles marked, numbered, and weighing as follows : articles. MARKS AND NUMBERS. WEIGHT. OF BAILMENTS. 201 To be transported over said railroad to tlie depot in , and there delivered to or order, upon the payment of the charges thereon ; and subject to the Rules and Regulations established by the Com- pany, a part of which notice is given on the back hereof. This receipt is not transferable. Freight Agent, E. R. Co. I ( Conditions Endorsed on Back.') Absteact from the Rules and Regulations op Ereight- iNG, AS PER Published Freight Tariff. The Company will not be responsible for damages occa- sioned hy delays from storms, accidents, or other causes ; or by decay of perishable articles, by heat or frost, to such articles as are affected thereby ; or for damages to the hidden contents of packages ; or by leakage or bursting ; or by reason of im- proper packing when received at their depots ; nor will it be responsible for any merchandise, unless receipted for by a duly authorized Agent ; nor for a greater amount than $200 on any one package, except by special agreement and upon the payment of extra rates ; and all goods and merchandise will be at the risk of the owners thereof, while in the Com- pany's warehouses, except such loss or injury as may arise from the negligence of the Agents of the Company. Goods consigned to irregular Stations, (those not in capi- tals on Freight Tariff), will be delivered at the nearest regu- lar Station, unless the owner gives a written order to deliver them at the irregular Station at his risk. Freight delivered at side tracks will be accounted for as it is tallied or weighed into the cars by the Company's Agent, at the point where it started. The contents of all boxes or packages containing gold, sil- ver, jeweli'y, or plate, and all similar articles, must be dis- closed to the officers of the Company at the time the same shall be delivered to them, or the Company will not be re- sponsible therefor in case of loss. CHAPTER XII. OP PARTNERSHIPS. Section 1. — Definitions, What is a Partnership f It is aji arrangement by wliich persons combine their money, or other property, for a joint business, agreeing to divide tlie profit and bear the loss, in such proportions as they may stipulate. The leading principles of a copartnership relation are, a common interest in the joint stock, the power in each mem- ber of a general partnership, as to third persons, to enter into engagements which shall bind the company, and a per- sonal responsibility for all partnership engagements. All persons, competent to transact business on their own account, may properly become partners. There must in all cases be a community of profit. There is sometimes a stipulation for protection against loss, as to some of the partners. This will be good as between the parties, but will not prevent the personal liability of such partners to third persons. There may be a sharing in profits, or a right to a per cent- age upon profits, as a mode of determining the compensation of an agent or clerk, which, while in many respects resem- bling a partnership, and especially in the community of profit to which such a clerk or agent is entitled, does not constitute him a partner, even as to third persons. The distinction is well established, and rests upon a satisfactory basis, although it is sometimes quite thin, — as in the following example: One, who is entitled to one-third of the profits of a business as profits, is a partner, authorized to bind the firm as to third persons, and personally liable to third persons for its in debt- OF PARTNERSHIPS. 203 edness. He may contribute to the joint fund only his per- sonal services. Another person, engaged as a clerk or agent, may receive, as compensation for services, thirty-three and a third per cent, upon the profits, as a basis of salary ; he is not a partner, is not interested in the joint funds, may not bind the partnership by his act, except within the scope of the powers conferred upon him by his employment, and is not liable to third persons for the debts of the firm ; although he has in a manner such participation in the profits as in some sense amounts to a community therein. Section 2. Of the Formation of Partnerships. The mutual assent of all members of a partnership is re- quisite to its formation, but no special form of agreement is required. Each must assent that every other member shall be a partner. If, therefore, one of the members of a part- nership, sell or transfer his interest, the purchaser would not become a partner, without the special assent of every member of the copartnership ; and such an admission of a nc\v mem- ber, would constitute a new firm. The evidence, upon which a partnership rests, may be : 1st, — written agreement, with or without seal, duly execu- ted and interchanged. ^d, — a verbal agreement. 3d, — the acts or conduct of the parties. In case a written agreement is entered into, everything agreed upon should be written out fully. The parties should see that all the provisions or stipulations they desire to en- force against their copartners are inserted, and clearly ex- pressed ; for it is a rule of law, that no oral testimony shall control a written agreement, unless fraud can be proved. Fraud vitiates and annuls everything. This rule of law, however, is not as strictly adhered to in reference to copartner- ship agreements, and especially in their relation to third persons, as in most other cases ; but, though partners have specifically stipulated in their articles of agreement, yet the 204 OF PARTNERSHIPS. acts of the partners will control the provisions of a written agreement, and a long neglect of such stipulations will gener- ally be treated as a mutual waiver of them. Such is the importance of acts, that a person may render himself liable as a partner, as to third persons dealing with the firm, by holding himself out as such, and thereby inducing them to act upon the belief that he is a partner. While the agreement of the parties, whether oral or writ- ten, usually determines whether they are partners as to each other, their liability as to third persons rests more upon their acts, than upon their intentions or their agreements, and, if by their acts they warrant those dealing with the firm in be- lieving them to be partners, they must respond to such per- sons as partners. As, if one allows his name to be connected with a firm name, or to be upon the business card of the fii'm^, or upon the sign ; if in the place of business he acts as if he was a member of the firm, by accepting bills, speaking of his interest in the business, or in any similar manner. No one can be made liable, however, as a partner, by the acts or declarations of another, without his co-operation or con- sent. The rule is well stated by Mr. Bell, in his commenta- ries, thus : " that one who thus holds himself out as a part- ner, when he realli/ is not, is responsible to one, who on these grounds believed him to be a partner, but not to one who knew not the facts, or who, knowing them, knew also that this person was not a partner." In a partnership there are not only general and active part- ners , but also secret partners or dormant partners . Such a part- ner is one who is entitled to actual participation in profits and benefits, but who seeks to avoid its liabilities by the conceal- ment of his interests. His name, of course, does not appear in the firm, and he takes no share in the management of the business. If discovered by creditors, he is equally liable as if his name had appeared in the firm, and this though he were not known by the creditors to be a partner, at the time of the creation of the debt. His liability being grounded not on credit given him, but on the contract, which makes him really a member of the firm, and so liable for its debts. OF PARTNERSHIPS. 205 In addition to general partners and dormant partners, there is also the special or limited partner. The latter is al- ways a creature of specific legislation. In nearly or quite all the states, there are statutes creating and controlling this relation, to which statutes reference should be had by any one desiring to enter into it. I shall here give only the gen- eral principles upon which it is based, and which, with some variation of detail, are recognized in all the different states, which have authorized this species of partnership. It may be entered into for the purpose of carrying on any business, which may be carried on by a general partnership or by a joint stock company. It is usually provided, that such a partnership shall consist of one or more persons, jointly and severally, and personally responsible for all debts of the firm, who are called general partners, and of one or more persons, who furnisli certain specific funds to the common stock, and whose liability extends no further than the funds so furnished. These are called special partners. The names of the special partners must not appear in the firm, which must contain the names of the general partners only, without the addition of the term " Co.," or any other general term indicating that other persons are connected with the firm. Special partners may advise as to the management of the copartnership busi- ness, but they cannot transact any business on account of tlie partnership, nor perform any of the duties of general part- ners, nor be employed for that purpose as agents, attorneys, or otherwise. The sum to be contributed by the special partner must be actually paid in before the commencement of the partnership. The agreement must be in writing, stating the names of all the partners, general and special, the amount of the copart- nership fund, and the amount to be contributed by each special partner. The agreement must be registered in some public office, (usually the office of the clerk of the county or of the town) , with an accompanying certificate signed by the parties, acknowledged or sworn to, as the statute may specify, and it inust be published in such manner as is prescribed in the regulating statute. 206 OP PARTNERSHIPS. If these requirements are complied with, in the manner pointed out in each state by tlie regulating statute, the special partner may lose the fund which he has put in, but cannot be held to any further or personal responsibility. Any neg- lect in following all the material requirements, whether inten- tional or accidental, even a material error of the printer in publishing the certificate, deprives the special partner of the benefit of the statute, and he becomes a general partner liable for the whole indebtedness of the firm. It is, therefore, essential that the special partner, at peril of his general lia- bility, see to it that the requirements of the statute are strictly complied with. The special partner may receive annual income, in the form of interest or dividends upon his capital invested ; pro- vided no reduction of the original capital is thereby caused. The principle of special partnerships is adopted from the French commercial code, and the general provisions of that code regulating such partnerships were pretty closely followed by the legislature of New York, in the creation of limited partnerships under their law ; and the statutes of most of the other states in which such partnerships have been author- ized, and which are later in date, follow substantially the provisions of the New York legislation. Section 3. Of the Interest of the Partners in the Common Stock. And first, of their interest in the personal estate owned. They are, in such estate, joint tenants, rather than tenants in common ; but they have not, as against each other, the i-ight of survivorship: that is, upon the death of one partner his interest in the stock in trade does not pass to the survivors, in such manner as to become their property ; but on the death of one partner his representatives become tenants in common with the surviving members of the partnership, without the right, however, to interfere in the management of the part- nership business, which remains solely with the survivor or survivors. The representatives of the deceased partner have OP PARTNERSHIPS. 207 only the right to his share in the sm-phis, after all partner- ship accounts are settled and all claims against it satisfied by the survivors. No partner has separate property or interest, except in his proportion of snch surplus as would remain after all part- nership liabilities are liquidated, and the account between himself and his copartners has been fairly stated and ad- justed. It follows, that nothing beyond this can be attached or taken on execution for the debt of an individual partner : but an attaching or execution creditor of such partner may at- tach or levy upon the individual interest of the partner, and make sale thereof; and the purchaser will become entitled, as tenant in common with the other partners, to the surplus, which would belong to such partner, (if any there be), after payment of the partnership debts and the adjustment of his account. There is some diversity of practice as to the mode in which such attachment, levy and sale, of the interest of one partner shall be made by a sheriff or other officer, on behalf of a creditor. In some cases it is claimed, that the officer may properly take possession, upon such attachment or levy, of the whole stock in trade of the partnership, and hold and control the actual possession of it, till sale shall be made of the interest of the individual partner therein ; but, by analogy to the cases in which an interest is acquired by the reiji-esen- tatives of a deceased partner, or by a transfer by one partner of his interest in the common stock to a third person, it would seem, that the sheriff ought not to make actual seizure, or to attempt to transfer by sale, either the whole stock or any specific portion of it, but should, like such personal re- presentatives or purchaser, allow the other partners to remain in actual control and possession of the stock and business of the partnership, and sell on his execution the individual in- terest of the defendant in the stock and property of the part- nership, substantially in the same way in which he would sell his right in equity to redeem real estate from a mortgage. The purchaser at such sheriff's sale would then, like one 208 OF PARTNERSHIPS. purchasing directly from the partner his individual interest, or like the personal representatives of a deceased partner, have a right to demand an account and settlement, and a transfer to him of the balance, to which the partner sued ■would have been entitled. If the other partners refuse to render a satisfactory account, or refuse to exhibit a state- ment of the precise condition of the account and interest of the defendant partner, a.t the time of the attachment or levy, such purchaser may, upon bill in equity, require a full state- ment of the accounts of the partners, at the time of the at- tachment or le\y, and of all matters necessary to be known by him, to enable him to determine the amount of his inter- est acquired by the purchase. Wliere the " trustee process," or process of " foreign at- tachment" or "garnishment," is ^ authorized by statute, the better way would, perhaps, be for the sheriff to return a gen- eral attachment of the interest of the partner, in the manner indicated above, and also to summon the other partners as trustees or garnishees of the debtor. 2. Of partnership property in land. A partnership, whether general or special, may hold real estate, as well as personal property, for the copartnership uses and purposes ; but the rules controlling the title to real estate, as to conveyance, inheritance, dower, &c., have made it difficult to determine how real estate, purchased with part- nership funds and for partnership purposes, shall be treated, in securing the rights of copartnership creditors against the claims of the widows and heirs of individual partners. No sale of land is valid to convey title to the purchaser, unless it be consummated by conveyance under seal, duly executed and delivered. And to make such a conveyance valid, as against subsequent purchasers or creditors, record must be duly made. It is only in this way a legal title can be ob- tained. Land purchased for the partnership uses and with partner- ship funds frequently, for convenience of transfer or other- wise, stands in the name of one of the partners. In some of the states a widow has dower in all lands of which the OF PARTNERSHIPS. 209 husband was seized during tlieir marriage. It is manifest that, at law, the legal title may become embarrassed with technical claims of the widows and heirs, and the legal title may rest in them : but a court of equity holds them in such case to be trustees for the partnership or their creditors, and compels them to dispose of it, as the interest of those (the real owners) may require. So land, thus purchased, passes to the widow and heirs of the partner in whose name it may stand, subject to the debts of the firm and to the balance due other partners upon final adjustment. The dower of a widow in land so held is sub- ject to such debts and balance. The surplus of any such real estate will then descend to the heirs of the party in whose name the title stands', according to the rules governing the descent of real estate, and not as personal propei'ty. Improvements made upon such land, in buildings or other- wise, with funds of the partnership, are partnership property. Conveyance of such real estate, by the party in whose name the legal title stands, to a bona fide purchaser, without notice of the claims of the partnership or its creditors, would vest a valid title in such purchaser. If he has notice of such claims, he would, like the original holder of the legal title or his heir, be treated in equity as a trustee, to the extent of the proper claims of such partnership or its creditors. Section 4. Of the Power of each Partner to Bind the Firm. The authority of each, in this respect, is very broad ; each being considered as the agent for the other and others, and having full power in transactions, fairly within the usual busi- ness of the firm, to bind all the partners and all the property. The acts and contracts of one are treated in law as the contracts of all. This principle governs an assignment or sale of the whole stock, the making or endorsement of nego- tiable paper for the business of the firm, a personal mortgage of the entire stock in trade, or any other act or contract re- lating to the partnership property and not requiring an indi- 14 210 OP PARTNERSHIPS. vidual signature and seal. And, where a mortgage of the personal property of a partnership was executed under seal by one of the partners, the supreme court of Massachusetts held, that the seal might be treated as surplusage, and sus- tained the mortgage. No individual partner can, as a general rule, bind the firm by a writing or obligation outside the business of the firm, or in any other than the usual mode of doing the kind of busi- ness carried on by the partnership. A letter of credit or of guaranty issued to a person, or with reference to a business, outside the firm, made by one of the partners without con- sent of his associates, will not, in general, bind the partner- ship ; these not being acts coming properly within the ordi- . nary business of a commercial copartnership. Of course, circumstances may ai-ise, rendering it essential to the joint interest that such papers should be executed. A jury would have a right in such case to find an implied authority, and in all cases in which such acts are done with- out previous authority they may be adopted or ratified by the firm, and would thereby acquire the same force and effect as if originally authorized. Such adoption or ratification need not be expressed by words or by writing, but any act of the partnership, as re- ceiving the avails of such unauthorized act, — for example, a percentage upon a guaranty, — would be a conclusive act of ratification. One partner cannot ordinarily bind the firm by a convey- ance under seal, or by any contract to the validity of which a seal is necessary ; but, I think, an exception would be made where the conveyance or contract is signed and sealed by one in the presence of the other partners, as this may prop- erly be treated as the act of all, though executed by the hand of one. It is analogous to a case in which one directs an- other in his presence to sign in his individual name an instru- ment. This is the act of the party giving the direction, and would be properly declared on as his personal act, without an allegation that it was done by attorney or agent. The same implication would almost necessarily be made in the OP PAETNEBSHIPS. 211 case I have supposed, where a partner signs and seals an in- strument in the firm name, in the presence and with the knowledge of his associates. This general authority of each partner, to bind the firm in matters fairly within the partnership design and purpose, holds good with reference to outside parties, even though there be an express stipulation in the copartnership articles that such act shall not be done : — as where a copartnership is formed between parties, who agree to carry on the business of manufacturing ; one party is a skillful manufacturer, and is to contribute his services in the practical superintendence of the manufacture of the goods ; the other furnishes the capital, and is to have the entire charge of the buying of stock and selling of goods, and the exclusive Management of the finan- cial business of the firm. The copartnership articles clearly and expressly stipulate, that all notes, drafts, checks and bills of every nature shall be signed by the financial partner, and that the other shall in no case sign any such paper in the name of the firm. Such is the implied power of each part>- ner to bind the firm, that any note, check or draft, signed by the superintendent in violation of such stipulation, would, in the hands of any outside purchaser in good faith and with- out notice of the stipulations of the copartnership articles, bind the firm. Where paper, so executed by an unauthorized partner, is taken by a bank or other corporation, the question has sometimes been raised, what knowledge, in the breast of an ofiicer of the corporation, of the limitation contained in the partnership agreement would prevent the bank from recover- ing. It is clear that possession of such knowledge by the cashier or other executive officer of a bank concerned in the Durchase would be sufficient. Knowledge of a director, not communicated to any executive officer, and who is not per- sonally concerned in or cognizant of the transaction, would probably be held insufficient. It will thus be seen, that no secret arrangement among the partners, in regard to their powers and liabilities with respect to each other, can affect their general liability to third 212 OP PARTNERSHIPS. persons, unless previously made known to them. Each part- ner being, upon well known principles of commercial law, general agent for all the others, all must be held responsible for the apparent relations which they sustain before the world. The ends of justice are thereby promoted, and fraud and de- ception effectually prevented. Thus it will be seen, that the law of partnerships has two distinct aspects, which must be kept in view ; the first em- bracing their mutual relations to each other, the second their relations to the rest of the community. Section 5. Of the power of a Partner to hind the Firm hy Admissions of Indebtedness. During the existence of a partnership, the acknowledg- ment of an antecedent debt is as clearly within the power of an individual partner as the original creation of such debt would have been. He may, therefore, take a debt out of the statute of limitations by any acknowledgment, which would have that effect if it were his own private debt. Whether such an acknowledgment would be effective if made after the disso- lution of the partnership is an unsettled question, having been differently decided by the highest judicial tribunals of the different States. In the early English case of Whitcomb vs. Whiting, it was held, that such an acknowledgment made after the dissolution would have that effect, and that decision has been followed by the Supreme Courts of Connecticut and Massachusetts and some of the other States. The Court of Appeals of New York, in some recent cases, has sustained the opposite view. Some of the States have also provided for such case by special legislation. In such conflict of judicial authority and legislation, the only safe way will be for those, in whose business such ques- tions may arise, to consult some one qualified to inform them of the local law governing their case. Where, however, by the terms of the dissolution one partner is specially author- ized to act for the firm in liquidation and settlement, he may OP PARTNERSHIPS. 213 bind all by any acknowledgment properly coming within the scope of the power so conferred upon him. It has been held in a recent case in New Hampshire, (Tappan vs. Kimball, 10 Foster 136,) that a partial payment, by one partner, to cred- itors having no notice of the dissolution, will take the case out of the statute. Section 6. What Acts of a Partner will he held to he for the Joint Account and Benefit. One partner is not permitted to deal on his own account in any matter evidently prejudicial to the business of the copartnership ; and, if he should attempt to contract sepa- rately and for his own benefit, in any matter within the fair scope of the business of the firm, the copartnership would be entitled to the benefit of every such contract. The obvious purpose of this rule is, to withdraw partners from the temptation to exercise higher vigilance, and thereby obtain more remunerative profits, in their individual trans- actions than in those of the partnership in the same line of business. The same rules apply to the master of a vessel charged with the management of the interests of himself and others, joint owners of a cargo bound to a foreign market. Partners, without express stipulation and agreement, are bound to observe good faith, and to apply themselves vigilantly and with diligence to the business of the firm, and not to appropriate the joint funds to any purpose other than the prosecution of the common interest. Section 7. Of Dissolution, its Causes and Effect. The partnership may be dissolved, 1. By lapse of time, as stipulated in the articles. 2. By completion of the business agreed to be done. 3. If no time be limited in the articles, and the business be of a continuous character, it is then a partnership at will, and either partner may dissolve it at any time without lia- bility to the others. 214 OP PARTNERSHIPS. 4. By insolvency of the partners and sale of the effects, with or without proceedings in bankruptcy. 5. By the death of either partner. 6. The marriage of a partner, who is a single woman, will, in the absence of special statutes authorizing married women to do dusiness on their own account, effect a dissolution. 7. Any pai-tnership, whatever the stipulations may be as to the time of its continuance, may be dissolved at any time by mutual consent. 8. By the voluntary and wrongful act of either party, re- fusing to continue the partnership longer according to its terms, notifying customers and the public of siich refusal. It is now settled that a partnership connection may be dis- solved before the time stipulated in the articles. A partner so dissolving subjects himself, however, to the payment of such damages as his partners may sustain, in consequence of such refusal and dissolution. 9. By a decree of a court of equity upon a proper case made out by evidence. The following are some of the causes for which a decree might probably be obtained : 1st, Where the business agreed to be done is found to be impracticable, and the partnership funds are likely to be wasted and sunk. 2d, When from habitual misconduct of a partner, arising out of dishonesty, drunkenness or other vice, out of his insanity, or his habitual negligence and recklessness, prevents a pos- sibility of a profitable continuance of the business. 3d, Where one of the partners has been guilty of a clear and willful violation of fundamental stipulations of partnership articles. 10. By a valid assignment by one partner of the entire partnership effects, or a sale, whether voluntary or upon exe- cution, of his individual interest therein. The dissolution of a partnership, from whatever cause, does not affect the liability of all the partners for former debts of the firm. The immediate effect of a dissolution is, 1 St. That each partner ceases to have power to bind the firm. 2d. Their relations to each other, in reference to the stock, OP PARTNERSHIPS. 215 are at once changed. They were, as we have seen, while partners, joint tenants, each having a right to dispose of the entire stock for the common benefit: tliey now become ten- ants in common, and neither has a riglit to dispose of any- thing beyond liis individual and undivided interest in the stock, and no power even to control or dispose of that, ex- cept subject to the partnership rights. These rights are, 1st, To have the entire partnership stock applied to the payment of the debts of the firm. 2d, To have the accounts of each partner stated and such balance, as may be left after the full payment of the partnership debts, distributed among the partners according to their respective interests. When the dissolution results from the death of one of the partners, the personal repi-esentatives of the deceased partner become tenants in common with the survivors in the copart- nership property and stock ; the survivors being, as we have before stated, entitled to the possession and management thereof, and having sole power to close up the joint business. In every case of dissolution, prompt and effective measures should be taken to close up all the partnership concerns. To accomplish this, it is usually necessary that some disposi- tion be made of the partnership effects. It is not unusual, to provide in the articles for the disposal of the effects on hand at a dissolution, either by their being taken by some one partner at a valuation, in pursuance of a prescribed mode of apprisal, or otherwise. In the absence of any such stipula- tion, and if the partners are unable to agree among them- selves, the common, and perhaps only practicable mode is, to dispose of them by public sale at auction, to the highest bid- der, and to distribute the proceeds, as above indicated. A dissolution, as between the partners themselves, takes effect immediately ; but as to third persons, and especially as to persons with whom the firm has had dealings, notice is sometimes essential. If the business is continued by some of the former members of the firm, retiring partners must see that requisite notice is given, or their partnership liabil- ity will still continue. Public notice of the dissolution should be given to the 216 OP PARTNERSHIPS. world: and, as to persons who have been in the habit of dealing with the firm, actual notice must be brought home to them, or at least the notice must be given in such way that the actual receipt of it by them would be inferred. It was formerly held in some cases, that the publication of notice in a paper taken by such a party would be presumptive evidence that he had received it : but that doctrine is pretty much ex- ploded, and in this day of multitudinous newspapers it is rarely or never presumed, that any party reads the entire contents of all the newspapers he takes. Notice published in the public prints, of the place where the business is carried on, in a fair and iisual manner, is held sufficient, as to all persons who have not had previous dealings with the firm : as to all who have had such previous dealing, actual notice must be given, and the only safe way for a retiring partner is, personally, or by some reliable mes- senger, to see that it is brought to the knowledge of all such persons. If sent by mail, the retiring partner should re- quest an acknowledgment of its receipt. Such retiring part- ners should also withdraw their names from the firm cards and signs, and, if they willingly permit them to remain, they will continue liable for the debts. But if the use of the name of the former firm be continued, without the authority and against the will of the retiring partner, he, having given due notice of the dissolution, is not made responsible by such use of his name, and is not bound to take legal means to compel its discontinuance. Persons having notice of the dissolution are bound to en- quire at their peril, who are now included in and properly designated by the firm name. A dormant partner, not being one known to creditors and on whose account credit is given, need not give notice of his retirement, except to persons who had been specially informed of his liability and had given credit to the firm on account thereof. When a partnership is dissolved by its own limitation, or by operation of law, — as by proceedings in bankruptcy, — no public notice is necessary. The death of a partner is sufficient public notice of his re- OF PARTNERSHIPS. 217 tirement, to prevent the continued liability of his estate for subsequent acts of his surviving partners. If the survivors continue to operate with the partnership effects, and enter into new transactions, they do so at their iadi^-idual peril, in this, that the representatives of the deceased partner are not bound to contribute to any loss which may be sustained, but if profits are made they may claim their proportionate share. Li the case of an infant partner: if he retires before at- taining full age, no notice is requisite for his protection; all his acts and contracts being voidable at his election ; but if, on arriving at full age, he continues in the business, with- out disaffirmance or notice of dissolution, he will be liable for subsequent contracts of the firm. In the liquidation of partnership concerns, the claims against the fund are marshalled thus : 1, Partnership cred- itors are to be paid. 2, When they are satisfied, claims of any individual partner or partners, to whom the firm is in- debted, are to be paid. And finally, if a surplus still re- main, creditors of each individual partner may levy upon his share. Section 8. Of Remedies of Partners between Themselves, During the Continuance of the Partnership and upon Dissolution. During the continuance of the partnership one partner cannot sue the firm, at law, for a debt due him ; because in so doing he would have to sue himself, and he can not be both plaintiff and defendant. So, for the same reason, if one be a member of two distinct firms, neither firm can sue the other. Nor can one partner sue the rest of the firm for his share of a debt due by the firm to him: because, until a dis- solution and winding up of the partnership concerns, it is impossible to tell whether anything will be due to him. A suit at law may be maintained for a breach of the part- nership articles, before or after the business of the partner- ship was commenced; and it has been held, that after a dis- solution of a partnership and the payment of its debts, one partner may sue another to recover a balance due, (see Sykes 218 OF PARTNERSHIPS. VS. Work, 6 Gray, 433); but the general and most efficacious remedy for partners, between themselves, during the exis- tence of the copartnership or upon its final dissolution, is by bill in equity. No. 1. Agreement for Copartnership. Articles of Copartnership made this day of , in the year one thousand eight hundred and , between A. B. of the first part, and C. D. of the second part, both of , in the county of It is the intention of said parties to form a copartnership for the purpose of carrying on the business of , for which purpose they have agreed on the following terms; to the faithful performance of which they mutually bind and en- gage themselves each to the other, his executors and admin- istrators : First. The style of said copartnership shall be " [and company] :" and it shall continue for the term of years from the above date, except in case of the death of either of the said parties within the said term, or earlier mutual agree- ment to dissolve. Second. The said A. B. and C. D. are proprietors of the stock, a schedule of which is contained in their stock book, in the proportion of to the said A. B., and to the said C. D.; and the said parties shall continue to be owners of their joint stock in the same proportions; and in case of any addition being made to the same, the said A. B. shall ad- vance , and the said C. D. of the cost thereof. Third. All profits, which may accrue to said partnership, shall be divided, and all loss happening to said firm, whether from bad debts, depreciation of goods, or any other cause, and all expenses of the business, shall be borne by the said parties in the aforesaid proportions of their interest in the said stock. Fourth. The said CD. shall devote and give all his time and attention to the business of the said firm as a , and, generally to the care and superintendence of the store ; and the said A, B. shall devote so much of his time as may OP PARTNEESHIPS. 219 be requisite iu advising, overseeing, and directing tlie said business. Fifth. All the purchases, sales, transactions and accounts, of the said firm, sliall be kept in regular books, which shall be always open to the inspection of both parties, and their legal representatives respectively. An account of stock shall be taken, and an account between the said parties shall be settled, as often as once in , and as much oftener as either partner may desire and in writing request. Sixth. Neither of said parties shall subscribe any bond, sign or endorse any note of hand, accept, sign, or endorse any draft or bill of exchange, or assume any other liability, verbal or written, either in his own name or the name of the firm, for the accommodation of any other person or jsersons whatsoever, without the consent in writing of the other party ; nor shall either party lend any of the funds of the copartner- ship, without such consent of the other partner. Seventh. No importation, or large purchase of stock or property shall be made, nor any transaction out of the usual course of the business be undertaken, by either of the part- ners, without previous consultation with and the approbation of the other partner. JEighth. Neither party shall withdraw from tlie joint stock, at any time, more than his share of the profits of the business then earned, nor shall either party be entitled to interest on his share of the capital : but if, at the expiration of the year, a balance of profits be found due to either partner, he shall be at liberty to withdraw the said balance, or to leave it in the business, provided the other partner consent thereto ; and in that case he shall be allowed interest on the said balance. Ninth. At the expiration of the aforesaid term, or earlier dissolution of this copartnership, if the said parties or their legal representatives cannot agree in the division of the stock then on hand, the whole copartnership effects, except the debts due to the firm, shall be sold at public auction, at which both parties shall be at liberty to bid and purchase like other indi- viduals, and the proceeds shall be divided, after payment of the debts of the firm, in the proportions aforesaid. 220 OP PABTNERSHIPS, Tenth. For the purpose of securing the performance of the foregoing agreements, it is agreed that either party, in case of any violation of them or either of them by the other, shall have the right to dissolve this copartnership forthwith, on his becoming informed thereof, and also to recover his damages for such violation. In witness whereof, we, tlie said A. B. and C. D., have hereunto set our hands, the day and year above written. Executed in presence of A. B. CD. No. 2. Same, with different Stipulations. The parties hereto, having confidence in each other, hereby form a copartnership on the terms and conditions following : 1. The copartnership shall be for carrying on the business of , from the day of next, and for the term of ten years next thereafter ; with condition, however, that either party may dissolve the partnership at the expiration of each and every two years from the period of its commencement, by serving upon the other, at least months previous to such expiration, a written notice, specifying that a dissolution wiU- take place at such time. 2. Said copartnership shall be conducted and carried on under the name and firm of , and the place of busi- ness shall be at , or at such other places as said partners may hereafter determine. 3. The capital of said firm shall consist of the sum of dollars, to be equally contributed by each of the parties hereto, together with the accumulation of income and profits arising from the employment thereof ; which, with the excep- tion of wliat each is entitled to draw out as hereinafter men- tioned, shall become and constitute a permanent fund for co- partnership purposes : but each party is entitled to draw out from the profits of said business for his own separate use, a sum not exceeding , at the commencement of each and every month while the said copartnership continues, but with the condition that all such sums in the aggregate for the OF PARTNERSHIPS. 221 year, shall not exceed his sliare of the profits of the said co- partnership, and, if they do, he shall repay the same at the close of the year ; the agreement being, that each copartner shall share equally in all the profits and losses that may arise out of, or occur in the prosecution of the said copartnership operations. 4. That each of the parties hereto, shall diligently employ himself in the business of the said copartnership, and be faithful to the other in all transactions relating to the same, and give, whenever required, a true account of all business transactions arising out of, or connected with the conducting the copartnership, and that neither one of the parties will, either by himself or with any other person or persons, direct- ly or indirectly, engage in the business of [that of the copartnership^ , or in any business except that of the said copartnership and upon account thereof, and that neither will, without the written consent of the other, employ either the capital or credit of the copartnership in any other than copartnership business. 5. That books of account shall be kept by the said partners, and proper entries made therein of all the moneys, goods, eff- ects, debts, sales, purchases, receipts, payments, and all other transactions of the said partnership, and that said books of account, together with all bonds, notes, bills, assurances, let- ters, and other writings belonging to the said partnership, shall be kept where the business of the copartnership shall be carried on, and shall be at all times open to the examina- tion of each copartner. 6. Neither of the partners, during the continuance of this copartnership, shall assume any liability for another or others by means of endorsement, or of becoming guarantor or sure- ty, without first obtaining the consent of the other thereto. 7. At the expiration of each and every year from the com- mencement of this copartnership, an account of stock, effects, credits, debts, and all copartnership transactions, shall be taken, and the true condition of the copartnership, as far as possible, arrived at; and each partner agrees to lend his aid and services, the more completely to effect this object. And S22 Of PARTNERSHIPS. in case of tlie determination of this copartnership, from what ever cause, the parties hereto agree to and with each other, that they will make a true, just, and final account, of all things relating to their said business, and in all things truly adjust the same. And, after all the affairs of the copartner- ship are adjusted, and its debts paid off and discharged, then all the stock as well as the gains and increase thereof, which shall appear to be remaining, either in money, goods, fixtures, debts, or otherwise, shall be di\'ided equally between them. In testimony whereof, tlie parties to these presents have hereto set their hands the day and year first above written. Li presence of No. 3. To Continue a Copartnership. Whereas the partnership agreed upon in the within-written articles, has this day expired by the limitations contained herein, [or will expire on the day of next,] it is hereby agreed that the same shall be continued on the same terms, and with all the provisions and restrictions herein contained, for the further term of years from this date, [or from the day of next.] In witness whereof, &c. Or, if with some variations, say, after the word "contained," "except as follows :" No. 4. Agreement for Dissolution, to he endorsed on Articles. "We mutually agree, that the copartnership formed between us by the within articles, be and the same is hereby dissolved, except for the purpose of the final liquidation and settlement of the business thereof; and upon such settlement then wholly to determine. Witness our hands (as in preceding form). No. 5. Notice of Dissolution, under power reserved in No. 2. To Mr. , Sir : — In pursuance of the right reserved under the first provision of our ai-ticles of copartnership, I hereby give you due written notice, that the copartnership OF PARTNERSHIPS. 223 heretofore existing between us, under the copartnership name, style, and firm of , will be dissolved, and cease and determine, on the day of , next. Dated at , the day of , A. D. 18 . Resp'y Yours, Forms for use in organizing a Limited Partnership. No. 6. Certificate of Limited Partnership. This is to certify, that A. B., C. D., and E. F., of , in the county of , and G. H., of , in the county of , have formed a limited copartnership for the purpose of carrying on the business of , in the city of , and state of , under the style and firm of . Said copartnership is to continue for the term of years, commencing on , and terminating on . The said A. B. and C. D. are the general part- ners, and E. F. and G. H. are the special jjartners, and have each contributed the sum of thousand dollars in cash, making an aggregate of thousand dollars toward the capital of said copartnership. In witness whereof, we the said A. B., C. D., E. P., and G. H., have severally hereto set our hands, this day of , A.D. 18 . A. B. C. D. In presence of E. P. G. H. State of County of J «^- ^- !>• 1^ • Then personally appeared the within named A. B., C. D., E. P., and G. H., known to me to be the individuals named in, and who executed the foregoing certificate, and severally acknowledged the same to be their free act and deed, and in all particulars correct. ' [ ss. , A D. 18 224 of partnerships. Affidavit op Payment in Cash for Special Capital. We, A. B. & C. D., general partners in the within named copartnership of , hereby certify that E. P. & G. H., special partners in said copartnership, have actually and in good faith paid in, in cash, the thousand dollars toward the capital stock of said copartnership as set forth in the above certificate. Dated at , this day of , A. D. 18 . A. B. CD. State of County of Tlien personally appeared the above named A. B. & C. D., and made oatli to the truth of the foregoing statement by them subscribed. Before me, , Justice of the Peace. Note. — In most of the states, there are special statutes regulating limited or special partnerships. Such associations consist of one or more persons, liable as in a common part- nership to the whole extent of their property, and of one or more persons as special partners, who contribute a specific sum in actual cash toward the capital stock. The statutes differ somewhat, and the local statutes should of course be referred to by any person, who is about to draw proper papers for the formation of such a partnership. The usual require- ments are, that the persons forming such partnership shall make and severally sign a certificate, which shall contain, — 1. The name of the Firm, — 2. Nature of business to be trans- acted, — 3. Names of general and special partners, distin- guishing which are general and which are special, and giving their residences, — 4. Amount contributed by special pai-t)- ners, — 5. When partnership is to commence and when to terminate, — 6. The certificate should be acknowledged or proved, as to the several persons signing the same, before an officer qualified to take an acknowledgment of a conveyance of land, and in the same manner, — 7. The certificate so ac- OP PARTNERSHIPS. 22.J knowledged should be filed with the clerk of the county in which the principal place of business is situated, and by him be recorded in a book kept for that purpose. If there are places of business in different counties, the certificate should be filed in every such county. At the time of filing of the certificate, it is usually required that an affidavit should be made by one or more of the gen- eral partners, that the sums set out in the certificate have been actually and in good faith paid in by the special parl^ ners in cash. Parties are usually required to publish the certificate a certain number of weeks in one or more news- papers. The business of such a partnership must be done under a firm name consisting of the names of the general partners only, without the addition of the word " company," or any other general term. The name of a special partner cannot be used in such firm with his consent or privity, nor can he, in any way, interfere actively in the l)usiness trans- actions or legal proceedings, without being deemed and treated as a general partner ; but he may advise as to its manage- ment, and examine the condition of its affairs and the state of its accounts. No. 7. Articles of Special Copartnership. We, A. B., C. D., E. F., & G. H., all of , in the county of , and state of , hereby agree to asso- ciate ourselves in a limited copartnership, according to the provisions of the statutes of said state, chapter , for the purpose of carrying on the business of , in said town of , and have adopted the following articles of agreement : 1. The style of said copartnership shall be , and the term of its continuance shall be for years from the day of , in the year eighteen hundred and 2. Said A. B. & C. D. are the general partners. The said E. F. & G. H. are the special partners, and have each con- tributed the sum of thousand dollars in cash, toward the capital of said copartnership. 15 226 OF PAETNERSHIPS. 3. All profits which may accrue to the said copartnership prior to the day of , in the year eighteen hundred and , shall be divided in the proportion of one- fourth to each, and after that time in the proportion of three- eighths each to said A. B. & C. D., and one eighth each to said E. P. & Q. H. All losses, whether from bad debts, de- preciation of goods or any other cause or accident, and all expenses of the business, to be deducted before division of profits. 4. Each partner shall be credited with interest on the capi- tal stock contributed by him, before the annual division of profits ; and the said B. F. & G. H. may draw out the inter- est upon the capital stock contributed by them annually, sub- ject to the liabilities set forth in said chapter of the statutes. 5. Said A. B. & C. D. shall devote their time and attention to the business, and for their services shall each be allowed dollars per annum, to be paid monthly and charged to expense account. 6. Neither of the parties shall draw out of the current profits, except as above provided, at any time during the partnership, unless by unanimous consent. 7. All purchases, sales, accounts, and transactions of every nature of the said firm, shall be kept in regular books, which shall be open at all times to the inspection of said parties and their legal representatives respectively. An ac- count of stock shall be taken, and accounts between the parties settled as often as once in every year. 8. Neither of the said parties shall subscribe any bond, sign or endorse any note of hand, accept, sign or endorse any draft or bill of exchange, or assume any other liability, verbal or written, in the name of the said firm, for the ac- commodation of any othe:^ person whatever, without the con- sent in writing of all the other parties hereto ; nor shall either party lend any of the funds of the copartnership, ex- cept in special cases of sufficient importance for mutual con- sultation and when the interests of the firm require it, and then the dissent of either partner shall prevent the loan. OP PARTNERSHIPS. 227 This article, however, shall not be construed to prevent ad- vances on goods or other legitimate business transactions, when security is in hand, and where it relates to the business of the firm. Neither of said general partners shall individ- ually make or endorse any promissory note or other mercan- tile paper, for the accommodation of any other person or persons, without the consent of all the parties hereto. 9. At the expiration of said term, or earlier termination of this partnership, an accurate account of profits shall be made up, and, (after payment of all debts due from the firm and repayment to each partner of capital contributed with interest), shall be distributed to the partners in the propor- tions stated in Art. 3. 10. Losses, of sufficient amount to diminish the capital stock, shall be borne by the several parties in the proportions in which, at the time such losses occur, they would have been severally entitled to receive profits. 11. In case of violation of any of the foregoing agreements by either 'party hereto, any other party shall have right to dissolve this copartnership forthwith, on his becoming in- formed thereof. In witness whereof, we the said A. B., C. D., E. F., & G. H. have hereto set our hands this day of , A. D. 18 . A. B. T i. CD. In presence Oi -^ „ G. H. CHAPTER XIII. Section 1.^ — Of their Different ^inds. A. corporation is an artificial person, owing its existence in this country uniformly to legislative enactment. Corporations sole rarely exist in this country ; the exam- ples given by Blackstone as existing in England are such as the king, a bishop, a dean, or a vicar. Those with which we have to do, as existing for commercial purposes, would be termed at common law civil, lay corporations aggregate. The term civil distinguishes thorn from '^ eleemosynary" .cov^vSi- tions : the term lay, from ecclesiastical corporations. An eleemosynary corporation is one organized for the distribution of the alms or bounty of its founders, or which may be con- tributed for its uses ; of this sort are hospitals, most colleges, and some other bodies, of which it is not important for us to speak. An ecclesiastical corporation at common law is one, whose members are composed entirely of spiritual persons. Most of the religious societies, with which we are familiar in this country, are quite unlike the English ecclesiastical corporation. They are generally organized under statutes of the states in which they exist, by an association under pre- scribed regulations, and are composed of all such persons, spiritual or otherwise, as desire to unite in the support and control of religious worship, and the property, temporalities and business connected therewith. They are ordinarily known as the religjous society, and are thereby distinguished from the church, with which they worship. Corporations aggregate are so termed, because they must always consist of two or more persons. OP CORPORATIONS. 229 The object of the creation of this artificial person is, to enable its aggregation of members to act by one united will, and to continue their joint powers and property in the same body, undistui'bed by the change of members or by their death, insanity, or such other causes as would effect a disso- lution of a partnership. All tlie persons composing a corporation, and" all who may be members of it during its entire continuance, are recog- nized in law as constituting this one artificial person, and are capable under its corporate name of taking, holding and con- veying property, incurring debts, contracting obligations of various kinds, and enjoying most of the property rights, which belong to a civil person. It is sometimes said that corporations are " immortal," which may have had more of the semlilance of truth, when applied to the early English and other European corporations, which -were, usually, unlimited in the duration of their powers and privileges, than when considered in relation to most of the private corporations, which have been created by statute in this country. These, as is well known, are most of them limited in duration, and very many of them to a few years. They are frequently spoken of, as having tlie capacity of per- petual succession. This is also of course limited to the duration given to the corporation, by its charter; and it would be more accurately expressed' as eontinuous succession. These artificial persons are sometimes created by special charter, and sometimes, and perhaps most frequently, under general regulating statutes empowering companies to organize under them, without the necessity of special legislation for each particular corporation. The powers possessed by a corporation may be summed up with sufficient accuracy as, the capacity to have continuous succession, under a special or individual name as a single ar- tificial person, and to take and convey property, sue and be sued, in its corporate name, and receive and enjoy, for the benefit of its members or stockholders, grants of privileges, immunities and property. Business men are chiefly interested in enquiries concerning 230 OP CORPORATIONS. the organization and exercise of the power by which corpo- rate action is directed and controlled, the contracts they are capable of making, how they may properly be made, of the evidence by which such contracts may properly be proved, of the liability of the corporation and of its individual members or stockholders. Section 2. Of the Organization of Corporations, and the lAahility of Members. If created by special charter, this requires an acceptance before the organization becomes a corporate body. Such ac- ceptance may be inferred from the acts of the corporators, — as by receiving the charter, and organizing under it, and act- ing in pursuance of its directions. Corporations organized under general statutes must, in all respects and strictly, follow the statute regulation. These general statutes, although all having some characteristics in common, — as in prescribing that they shall consist of three or moi-e persons, shall be organized under a special name, shall set forth in the certificate of their organization such name, the amount of their capital stock, the business to be done by the company, the location of their principal place of business, the names and residence of the original members, the amount of capital stock actually paid in, and in the re- quirement that such certificate shall be signed by the officers or directors of the corporation or both, be acknowledged or sworn to by certain specified officers, be published in one or more local papers, and be recorded or filed for registry in the office of the town or county clerk, and usually also in the office of the Secretary of State, — differ quite materially in the various States in other and most important provisions and regulations : for example, in Massachusetts and Connecticut, and in many other States, such corporations, properly organ- ized and conforming to statute regulations, protect their members and stockholders from all individual liability for the corporate debts ; while, in New York, and some of the other OP CORPORATIONS. 231 States, the general statutes aiitliorizing such corporate organ- izations provide, tliat stockholders in those organized for one purpose shall, while the corporation conforms to all regulat- ing statute provisions, be exempt from all personal liability ; while, in those organized for another purpose, it is provided, that in the event of the insolvency of the corporation stock- holders shall be liable, not only to the extent of their corpo- rate stock, but to an assessment for the payment of such in- debtedness, to an amount additional to their stock of the par value thereof; and in those organized for still other pur- poses, (as express companies in the State of New York), they are exposed to general personal liability, as if they were part- ners at common law. Too much care cannot, therefore, be taken by those about to purchase stock in a corporation, in ascertaining the precise provisions of its charter, if organized under a special act, or, if organized under a general law, the conditions, provisions and regulations of such law, and the general law of the State, which created the corporation. Section 3. Of its Existence and right to do Business in Slates and Coun- tries other than that in tvhich it is Created. A corporation is, strictly speaking, a creature of the sov- ereignty which created it, and cannot, adversely, and as of right, insist that its existence shall be recognized, or its right to do business admitted, in any State or country other than that from whose government it derives its origin and power : but, upon principles of international comity, corporations, created by, and duly existing under, the laws of one country, have generally been recognized, and their right to do business accorded to them, in every other country having commercial relations with the one in which they have their home. Thus, the Bank of England, the East India Company, and the great insurance companies of London, are recognized and do busi- ness in most of the civilized coimtries of the world. The relations of the States of our Union to each other are 232 OP CORPORATIONS. much more intimate and interdependent than those existing between any countries entirely foreign to each other. It would, therefore, seem, that these principles of comity should be more controlling as between the States than between for- eign nations. Such, however, it is believed, has not been the case, and much inconvenience and annoyance has resulted to corporations existing under the laws of different States, and to the interests of commerce in every direction, from the jealousy, rivalry and exclusiveness, of the sister States. Under the confederation, the inconveniences arising from this source were very great ; and to prevent a continuance of those evils was one of the principal reasons for abandoning the old confederation and adopting the present constitution. Most of the evils experienced under the confederacy have, with or without the exercise of the regulating power vested in Congress by the Constitution, disappeared. But more or less of trouble has always arisen, in relation to corporations existing in one State and seeking to do business in another, from this spirit of jealous unfriendliness. One of the questions, upon which the Supreme Court of the United States was called upon to pass very early in its existence, was, whether a bank created by one State might sell bills of exchange or transact other business within its corporate power in another of the States. This was settled, as also its right to maintain an action in such other State, affirmatively. Numerous cases have arisen in the courts, arising out of unfriendly and retaliatory legislation. The right of a corpo- ration to do business in a State other than that in which it was created resting, as we have stated, simply upon comity, it is, of course, proper and to be expected, that every State will pass such regulating laws, with reference to the business to be done within its borders by foreign corporations, as will afford reasonable protection to its own citizens ; and it is only when such legislation distinguishes unfairly, and without necessity, against the foreign corporation that fault can prop- erly be found. The worst examples of this species of legislation are to be OF CORPORATIONS. 233 found upon the statute books of some of the States under the head of Insurance Laws. Insurance and other corporations liave become much more numerous in this country than in any other in the world, and almost every citizen is interested in some way, either directly or indirectly, in the business done by them. Corporations manufacture almost every article that we use or wear ; they issue and own the circulating medium, which constitutes the currency of the country ; they transport our persons and merchandise upon land and water, and insure our property, our lives, our persons against accident, and in sucli variety of ways enter into all the business relations of our citizens, that it is exceedingly important that every citizen, who may as a legislator be called upon to aid in shaping the laws of his State or the nation upon this subject, should have a clear idea of its importance, and of the true interest of all the States, and of the nation, in its legislation in reference to it. It may not, therefore, be deemed improper, to turn aside somewhat from the general purpose of this book, for a his- toric statement of this matter, and of the legislation and discussion, judicial and otherwise, to which it has given rise. The resolution of July 2d, 1776, made the several colonies ^'/ree, sovereign and independent, States." Serious incon- veniences immediately resulted from the want of uniformity in the regulations of trade and commerce. The Articles of Confederation of 1781, did not give relief. It soon became evident, that the fact that Congress had no power over this subject was fatal to the successful operation of the system, and the statesmen of that day immediately set about devis- ing a remedy. In July, 1782, the legislature of New York passed resolu- tious proposing that Congress should recommend, and each State adopt, a measure for assembling a general convention of the States, to amend the confederation. In July, 1785, Mr. Monroe submitted to Congress a report, recommending that the ninth article of confederation be so amended, as to confer upon Congress the power of " regulat- 234 OP CORPORATIONS. ing the trade of the States, as well with foreign nations as with each other." In September, 1786, Commissioners from New York, New Jersey, Pennsylvania, Delaware and Virginia, met, to " take into consideration the trade and commerce of the United States, and to consider, how far an uniform system in their commercial intercourse and regulations might be necessary to their common interest and permanent harmony." This assembly, after a session of three days, adopted a re- port, in which they recommended a general meeting of the States, &c., and say, " as the power of regulating trade is of such comprehensive extent, and will enter so far into the general system of the federal Government, ^c, that to give it effi- cacy may require a corresponding adjustment of the other parts of the federal system," &c. In discussing and adopting the articles proposed for the constitution, the one finally adopted upon this subject is as follows : " to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." An- other proposed wording was, "to pass acts for the regulation of trade and commerce," &c., — both mean the same thing. Before the adoption of the constitution, the condition of things had in some respects become seriously embarrassing, and in all the relations of commerce troubles were experi- enced, quite analagous to the trouble and annoyances which, for the last few years, have arisen between the States in the matter of inter-state insurance. llr. Hamilton, in 1788, (Federalist, No. 22, p. 116,) in speaking of the want under the confederation of a " power to regulate commerce," which, he says, " is allowed by all to be a defect," says, " The interfering and unneighborly regu- lations of some States, contrary to the true spirit of the Union, have in different instances given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained hy national control, will be multiplied and extended, till they become not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the confede- racy." OP CORPORATIONS. 235 In another place he adds that, " while the genius of our people may save us from the alienations and annoyances which distract Germany, yet we may reasonably expect, from the gradual conflicts arising out of State regulations^ that the citizens of each will at length come to be treated in no better light than that of foreigners and aliens." (In the matter of Insurance Corporations we find Arkansas a few years since passing a law, which burdens State companies and exempts those of England and Germany.) Mr. Madison, (No. 41 Federalist,) states the powers then proposed to be conferred upon the federal government as fol- lows : 1. Security against foreign danger. 2. Eegulation of intercourse with foreign nations. 3. Maintainance of har- mony and proper intercourse among the States. It will thus be seen that the constitution, in the clause which we have recited, vests in Congress the power to reg- ulate every species of commercial intercourse, and the juris- diction of Congress over the entire subject is unlimited. Judicial consideration of this commerce power, as vested in the national government, is to be found in a considerable number of cases in the federal and other courts. Among the more important cases are the following : Bank- rupt laws, as affecting State legislation, — Sturgis vs. Crown- ingshield, 4 Wheaton, 122. Steamboats and tow-boats, as instruments of commerce, federally regulated and licensed, not subject to State regula- tion, — Sennott vs. Davenport, 22 Howard, 227 ; Poster vs. Davenport, ih. 244. Eiver navigation and license, — Gibbons vs. Ogden, 9 Wliea- ton, 176. ' Ship owners liability on inland waters, — Moore vs. Trans- portation Co., 24 Howard, 1. Power of State to regulate ferries, — Conway vs. Taylor, 1 Black, 603. National legislation for District of Columbia, — Cohen vs. Virginia, 6 Wheaton, 264. Equality of rights between States, — Connot vs. Elliott, 18 Howard, 591 ; Smith vs. Maryland, 18 Howard, 71 ; Cob- 236 OP CORPORATIONS. bold vs. Coryell, 4 Washington C. C. Reports, 304 ; Dunham vs. Lamphier, 1 Gray, (Mass.) 275 ; Bennett vs. Briggs, Bald- win, 60 ; State vs. Medbury, 3 Rhode Island, 138. That such State powers as are reserved, — for example, the tax power,— must be exercised in good faith, — Gushing vs. Newburyport, 10 Metcalf, 521 ; Sedgwick on damages, 555, 632, 695 ; and as to the general taxing power of States, Providence Bank vs. Billings, 4 Peters, 514. Power to pass regulations in relation to passenger vessels, — Mayor of New York vs. Miln, 11 Peters, 102 : Passenger Tax Case, — Smith vs. Turner, 7 Howard, 283. Power to regulate pilotage, — Cpoley vs. Wardens, &c., 12 Howard, 299 ; Steamship vs. Joliffe, 2 Wallace, 450. Power to regulate fisheries, — Smith vs. Maryland, 18 How- ard, 71 ; Dunham vs. Lamphier, 2 Gray, (Mass.) 268 ; State vs. Medway, 3 Rhode Island, 138. Liquor license cases, — Thurlowra. Mass., 5 Howard, 504, — and same question, as affected by license under the revenue law of the United States, — McGuire vs. Mass. 7th of Wal- lace. Importer's License, — Brown vs. Maryland, 12 Wheaton, 419. Tax on bills of exchange, — Nathan vs. Louisiana, 8 How- ard, 73. Tax on Alien legacies, — treaty power; Moses vs. Green, 8 Howard, 490 ; Frederickson vs. La., 23 Howard, 445. River obstructions, — (navigable rivers ;) Prevot vs. Green- aux, 19 Howard, 1 Penn. vs. Wheeling Bridge, 18 Howard, 421 ; Vezie vs. Moore, 14 Howard, 560 ; Wilson vs. Blackbird Creek Co., 2 Peters, 42 ; Gilman vs. Philadelphia, 7th Wal- lace. No national legislation has yet been had, regulating the right of insurance companies existing under the laws of one of the States to do business in the other states ; and no case, in which this precise question was made, has been carried to the Supreme Court of the United States. If insurance comes fairly within the designation of the general word " com- merce," then it is clear, that Congress would have right to regulate the terms upon which insurance corporations may OP CORPORATIONS. 237 transact business in States other than that in which they are located. As the couunerce of the world is carried on at tliis day, it cannot exist without insurance ; it is an essential guar- anty of its safety, and no merchant of ordinary prudence would tliink of living for a day without having the main bulk of his property, at home and abroad, on ship and on railroad, upon our inland rivers and canals, arid on our great lakes, — pass- ing from State to State, and outside of the limits of any one State, — safely insured, in responsible fire 0,nd marine insur- ance corporations. It is claimed by insurers that, to render insurance safe and payment of losses prompt and certain to the insured, it must be wisely scattered and that, to secure a sufficiently broad average to render the business safe to the insuring corporation, risks must be scattered over a wide extent of country. If this be true, and if the States shall unwisely refuse to exer- cise a liberal comity to these corporations, it may become irhportant to their existence and prosperity, that Congress shall pass a general regulating law. If such legislation is within the power of Congress there are many reasons why it would be desirable that a statute should be passed, embracing all the subjects of commercial law and producing a general uniformity throughout the Union, in the laws regulating insurance, negotiable paper, and other kindred subjects. Section 4. Of the Obligations of a Subscriber for the Stock of a Corporation. The obligation, which a stockholder assumes in subscrib- ing for capital stock, is ordinarily, that he will pay the full amount of the par value thereof, in such instalments, and at such times, as shall be required by the directors. It is now generally admitted, that by such subscription a debt is in- curred, which may be enforced by any appropriate remedy, at law or in equity ; and that such remedy is not cut off or impaired by a provision for the forfeiture of the rights of a 238 OP CORPORATIONS. delinquent stockholder and the sale of his stock. Nor, as between the corporation and its creditors, has the former power, by any stipulation with its stockholders, to preclude itself or its creditors from enforcing this remedy. If the company become insolvent before the stock is paid up, a creditor can compel payment of the remaining instal- ments, though the dii'ectors should refuse to make the call. Stockholders are equally liable, whether they become in- terested by virtue of an original subscription, or obtain their shares by purchase. A party, selling his stock in good faith to a responsible purchaser, usually shifts the biu-den of his obligation to the corporation to the shoulders of him to whom he transfers the stock. Whether an original subscriber to the stock of a corpora- tion can avoid his obligation by showing, that his subscrip- tion was procured by fraud in its organization, is doubtful. He may, in a sense, be said to have participated in such organization. He certainly cannot avoid the obligation, if he is an actual participant in the fraud ; but a purchaser of transferable shares, though his contract be made directly with the corporation, may set up the fraud as a defence to his note, even after the insolvency of the corporation, and against its creditors. The debtor of an insolvent bank can not, however, offset, as against its creditors, the bills of the bank, though he held them at the time his note became due ; but a stockholder of a joint stock corporation may, in a suit upon his note for the stock subscribed by him, offset a debt due him from the cor- poration, even after the insolvency of the corporation. Section 5. Liability of Stockholders to Creditors, tJnder the 2d section, we have referred to the different stat- ute regulations of the several States, as rendering it necessary carefully to examine those statutes, or the private acts of in- corporation under which the company is organized, before assuming the liabilities of a stockholder. OP CORPORATIONS. 239 Some private acts of incorporation contain a clause, pro- viding that the persons and property of the members of the corporation shall at all times be liable for all the debts due from the corporation. In such a case, as in the case referred to in Sec. 2, of New York Express Companies, and in other analagous cases, those who were stockholders at the time the debt was contracted, but have subsequently, and before the commencement of the suit, transferred their stock in good faith, are not liable for the debt ; but such indebtedness at- taches to the persons and property of such purchasers, and they are liable jointly to all creditors. A bill in equity would in such a case give the most ample and complete remedy. The individual members of a modern ecclesiastical society, without local limits, formed by voluntary association under the general statute laws of the different states, are not usually liable, in person or property, for the debts of the society. This is contrary to the usual rule as to members of municipal corporations, (as cities and towns), whose individual property is ordinarily liable for payment of the corporate debts. Section 6. Powers and lAdbilities of Directors. The stock, property and business, of a corporation is usually managed by a board of directors. These directors are com- monly elected annually by all the stockholders, by what is called a stock vote ; i. e., each share of stock counting one vote. Where stock is held by trustees, who differ as to the persons to be voted for as directors, questions of some difficulty some- times arise : as where there are three trustees, two of whom desire to vote for one set of names as directors, the third positively refusing. Shall the majority control, or will the positive dissent of one prevent a vote ? The tellers appointed to count the vote would, upon being advised of the facts, have to determine the question in the first instance, and if the shares voted upon were sufficient in number to turn the elec- tion, any aggrieved, dissenting stockholder might' test the correctness of their decision, by qiw warranto against the officers so elected. 240 OF CORPORATIONS. Directors, properly elected at an annual meeting for the year then following, have usually, under the general laws of the different states, or under private acts of incorporation, entire control of the ordinary current business of the com- pany. A vote of instructions, of all the stockholders duly assem- bled for that purpose, would not be legally controlling of the discretion or action of the directors in such business. In a case where such instructions were given, which the directors refused to obey, in a matter relating to the removal from one town to another of the repair shops of a railroad corporation, involving an outlay of several thousand dollars, the stockholders attempted, at a meeting called for that pur- pose, to reinforce the minority of the directors by the election of three additional directors, who agreed in opinion with the majority of the stockholders. The president of the corporation who presided at the meeting, being, of the opinion that such action was irregular and would be inoperative, declined to put the motion to proceed to vote for such additional directors. The facts were agreed, and a case submitted to the Supreme Court of Massachusetts for their determination, whether a mandamus should issue to compel the president to submit the motion, at a time to which an adjournment of the meeting was had for that purpose. The Court declined to issue such mandamus, for the reason, among others, that the election of such additional directors would be irregular and inopera- tive, as the entire control of the business of the corporation was vested in the directors duly elected at the previous annual meeting, and their disci-etion and action could not be con- trolled by the stockholders during the year, either directly by vote, or in this indirect manner. This power, however, of the directors is confined to the management of the current business, under the powers and franchises then enjoyed by the corporation, and they would not be authorized to apply to the legislature for an enlarge- ment of the company's powers without an authorizing vote of the stockholders. As a general rule, the knowledge of the directors, in regard to matters affecting the interests of the or CORPORATIONS. 241 corporation, is treated as the knowledge of the corporation, and tliat a matter was known to the directors may be inferred from circumstances, and need not always he proved by direct evidence. The statements or admissions of individual stock- holders and directors of a corporation, not made in the exer- cise of any corporate duty, cannot generally be received in evidence. An individual stockholder cannot maintain an action at law against directors, for mismanaging the affairs of a corporation, or for defrauding it ; the directors being agents of the corpo- ration, and not of individual stockholders. The corporation is the legal representative or trustee of the stockholders, and it is its duty to protect and defend their property. If, however, for any cause, the corporation is unable to bring suit, or if, through fraud or collusion, the directors re- fuse or neglect to bring suit in the corporate name, individual stockholders may seek relief in equity. A director is not entitled to compensation for services ren- dered to the corporation, except upon express stipulation and agreement therefor, or unless the services are clearly beyond the range of his official duties. It is not clearly settled, and may perhaps be treated as an open question, what degi'ee of negligence, on the part of di- rectors of incorporated companies, in discharging the duties for which they are appointed, and which they are understood, by accepting the office, as impliedly engaging to perform, will render them liable to the stockholders, or the public, in dam- ages. They should clearly be held pledged, by the acceptance of the office, to the exercise of integrity and reasonable vig- ilance, in discharging the trust reposed in them. Tire directors and executive officers of corporations, formed for the purpose of dealing with the public, should be held to a strict responsibility for the honest discharge of their duties. They are in a position in which they can know, and they ought to be held responsible for the knowledge which they might ob- tain, and which it is their duty to obtain, of the facts in rela- tion to the solvency of the company, and such other facts as 16 242 OF CORPORATIONS. are of interest to the public, in any action against them upon representation made, in certificates filed in public offices under the requirements of law, in advertisements in the public prints, and in such other ways as have a natural tendency to deceive and mislead the public, if the facts therein contained are untruly or inaccurately set forth. Section 7. Powers and Liahilities of the Corporation. These are conferred, limited and defined, by the specific charter to which it owes its creation, or by the general law of the state in which it is organized, or by both. In the general statutes of the different states authorizing the organization of corporations, sometimes, and perhaps gen- erally, known as joint stock companies, it is usually required, that the purpose for which every such corporation shall be organized shall be specified in their articles of association. It would not be lawful for such a company to appropriate its funds to a business other than that so specified. This clause should be drafted with some care, and the business, scheme, and purposes of the associates should be clearly in the mind of the draftsman. This clause defining its purposes, together with its corporate name, must be looked to as defining the direction and sphere within which its powers shall operate. It is an elementary and fundamental principle, that a corpo- ration has only such rights and powers as are expressly granted to it, together with such as are incidentally necessary to carry into .effect those so granted. Its contracts must, therefore, be such as are warranted by its charter, and it is confined to the subject matter therein contained. A joint stock company, organized "to do a gene- ral insurance, agency, commission and brokerage business, and such other things as are incidental and necessary in the management of that business," undertook, in making a loan from a savings and building association, to subscribe for the capital stock of such association. The Court held that they had no power so to do, and whatever might have been the motive of the directors in making the subscription, whether to obtain a OP CORPORATIONS. 243 loan of money merely, or for the purposes of speculation, they transcended the powers conferred upon them, and departed from the legitimate business of the company, as much as if they had subscribed for stock in a manufacturing or steamboat company. Banks, Insurance Companies and other similar corpora- tions, specially authorized in their charters or by general law to contract in a particular mode, — as, in the case of an insur- ance company, to issue policies duly signed by the president and secretary, — may, nevertheless, usually render themselves liable upon verbal contracts by their authorized agents, or upon instruments executed in a mode other than that so specified ; the rule being, that the corporation is clearly lia- ble upon a contract executed in the specified manner, while the burden is upon the person claiming under any contract otherwise executed, to show that it was duly authorized and within the legitimate sphere of the corporate powers. If a corporation has no power under its charter to do the act complained of, — as if its capital stock is limited to three millions, and it attempts to issue stock beyond that amount, it would seem to be clear, upon incontestible principles, that the attempt must fail to accomplish the illegal and impossi- ble result. This must be equally true whether the attempt be made by the entire body of stockholders, by the directors, or by an executive officer acting within the range of duties duly committed to him. It is not, therefore, at all a question of the authority of an agent, which arises in such a case, but whether an artificial person, created with powers expressly limited and exactly defined, can legally and effectively act outside of, and beyond those powers. Whether a corporation may not, in some form, render it- self liable in damages, or otherwise, for representations or acts of its directors, executive officers or authorized agents, misleading a party to his injury, is a question not fairly and authoritatively settled. The Supreme Court of Connecticut, in Hood vs. N. Y. & N. H. R. R. Co. 22 Conn. 502, held, that they could not so be rendered liable; but the same court has held, that action on the case for vexatious suit may '244 OP CORPORATIONS. -be sustained against a corporation. Goodspeed vs. East Had- dam Bank, 22 Conn. 530. Mr. Redfield, in his work on Railways, pp. 288-9, sug- gests a doubt as to the correctness of the decision in tlae above case of Hood. The doctrine laid down in tliat case, carried out to what would seem to be its legitimate results, would warrant the conclusion, that although illegal acts might be committed by an officer of a corporation, within its serrice and for its benefit, and even to accomplish objects for which it was created, and by the express authorization of its directors, that such acts, not being within the scope of its charter, must be treated as the individual acts of tlie agents who performed them, and the whole responsibility must be limited to them. It would result from this, as a legitimate consequence, that no action for trespass or other wrongful act would lie against a corporation. This doctrine was at one time held as a general rule ; but later decisions, and the more recent legislation and jurisprudence of the States of this Union, have established the opposite conclusion. Tlae principle of representation has been engrafted upon them, and is now treated as a part of their constitution. The powers of the corporation are placed in the hands of the directors. They are appointed by the stockholders, have gen- eral charge of the business of the corporation, and appoint the executive officers and agents, who exercise its faculties for the accomplishment of the purposes of its creation. It has been held to be a necessary correlative, to the principle of the exercise of corporate powers and faculties by legal repre- sentatives, that a corporate responsibility for the acts of the representatives must be recognized. Corporations are now, generally, held liable for the negli- gence and unskillfulness of their agents, in all matters com- ing legitimately within the scope of their corporate powers. They are not, however, liable for such wrongful acts as are wilful and intentional on the part of the agent. This latter rule embraces acts of such nature that they might, under some circumstances, come within the scope and powers of OP CORPORATIONS. 245 their agency, and thus admit of efifective performance. The fraudulent issue of stock of a railroad corporation, beyond the total amount of stock authorized by its charter, though, as to form, duly issued by its president and transfer agent, and though it has come by purchase in good faith and for value to the hands of an innocent holder, is void as against the corporation. Mechanics' Bank vs. N. Y. & N. H. R. R., 3 Kernan, 599. Section 8. Of the Termination and Dissolution of a Corporation. Corporate powers and functions may be terminated in the following ways : 1. By express legislation. This applies to all, except such private corporations as hold charters which would be held to be contracts. The provision in the National Consti- tution, prohibiting any State from passing a law impairing the obligation of a contract, would, of course, prevent State legislation annulling such charter, unless the law by which it was created contains an express reservation of the right so to do. Many charters recently granted contain a provision reserving to the legislature the right to alter, amend or dis- solve, at pleasure. The general statutes of most of the States contain a clause reserving to the legislature such rights, as to all charters granted after a specified date. 2. By lapse of time. Most charters are granted for a specified period; perpetual charters not being deemed expe- dient. When the specified period terminates, the corpora- tion is thereby ipso facto dissolved, unless the legislature see fit to continue it ; no more of its original functions remain- ing than are requisite for winding up its concerns. 3. By surrender of its franchises. The acceptance of a charter does not involve an obligation to continue the exer- cise of its functions and franchises, during the entire period specified therein. The stockholders may, therefore, surren- der their charter at their pleasure, subject, however, to such 246 . OP CORPORATIONS. adverse rights as have been acquired by the public or by pri- vate citizens. 4. As to some corporations, hy death. This does not ap- ply to stock corporations, because if all the stockholders in one of these should die, the shares would pass to their per- sonal representatives and the corporation still continue ; but, in respect to charitable corporations, the case is sometimes otherwise. These may be so constituted that the death of all the members would work a dissolution, for want of means of keeping up the succession. Such a contingency may, however, by the exercise of foresight and care, be provided against in the charter. 5. By forfeiture. A forfeiture of a charter can only he enforced by judicial proceedings. The causes of forfeitui'e may be included under the two heads of misuse or abuse of the corporate franchises, or non-use or neglect to exercise them. Without any express provision in the charter, either of these, when judicially ascertained, will justify a court in adjudging the charter to be forfeited. The common course in ascertaining and enforcing a forfeiture is, for a creditor or any person aggrieved by its doings to institute process ; or the prosecuting attorney of the State may apply, with, or with- out complaint, to some Court sitting in chancery, for an in- junction ; and, if acts or neglects amounting to a forfeiture are found by the court, an injunction is issued, restrainmg the corporation from a further exercise of its functions, and receivers are appointed to wind up its affairs. When a corporation is dissolved, in either of these ways, its debts are to be first paid. The residue of its property should be converted into money and refunded to the stock- holders. Section 9. Forms of Organization, ^c. And first, of organizations under the general statute laws of a State authorizing joint stock corporations. The first thing here is, of course, an agreement between parties to engage jointly in business as a corporation. A general form for such an agreement may be as follows: of corporations. 247 1. Articles op Association op the Company. The subscribers hereby associate themselves as a body pol- itic and corporate, in pursuance of the provisions of the statute laws of the State of , authorizing and regulating the formation of stock corporations, and adopt the following general articles of association and agreement: 1. The name of said corporation shall be the Company, and its capital stock shall be five hundred thousand dollars, to be divided into shares of dollars each. 2. The purpose for which said corporation is to be organ- ized is, to do business as , and to buy and sell, and deal generally in such real and personal estate as may be necessary to the successful prosecution of said busi- ness. 3. The principal place of business of said corporation shall be at , in said State. 4. Each subsci'iber hereto agrees to take the number pi shares in the capital stock of said corporation set against his name, to be paid for by instalments as called for by the di- rectors hereafter to be appointed. Dated at , this day of , A. D. 18 . (Names of subscribers). (Number of shares). The statutes authorizing such organizations usually author- ize the calling of the first meeting, by a notice to be signed by two or more of the corporators, stating the time and place where the first meeting of the corporation shall be held ; which notice is usually required to be published in two or more papers of the county in which the corporation is to exist. Such notice may be very simple in form, and would be quite sufficient in the following words : 2. Notice op the First Meeting op the Company. Tlie first meeting of the subscribers to the capital stock of said Company will be held at , in the town of on the day of , next, at o'clock in the noon for the purpose of organizing said corporation, adopting by 248 OF CORPORATIONS. laws, choosing directors, and transacting all other business which may, under the statutes of this State, properly be done at said meeting. Dated at , this day of , A. D. 18 . A waiver of this notice is usually authorized by the regu- lating statute, and without such authorization would probably be sufficient and effective if signed by all the subscribers. 3. Form op Waiver op Notice. The undersigned, being all the subscribers to the capital stock of the Company, a stock corporation to be organ- ized under the statute laws of the State of , hereby unite in calling a first meeting of said Corporation, to be held at , in the town of , on the day of next, at o'clock in the noon ; and we severally waive the notice of said meeting called for by the statute laws under which the company is organized. Dated at , this day of , A. D. 18 . The instrument of waiver should, in all cases, be entered at full length in the records of the corporation by the sec- retary. 4. Eecords. Among the officers usually chosen at such first meeting is a Secretaiy, who shoidd make it his first business to obtain a proper book and commence a record of the organization and doings of the corporation. The records of a company organized under a general law should commence with a copy of the articles of association and agreement. This, and all other original papers copied into the records, should be attested by the Secretary substan- tially as follows : The foregoing is a true copy of the original articles of as- sociation of the Company. Attest. , Secretary OF CORPORATIONS. 249 Next should follow a copy of the notice of the first meet- ing, with a statement of the newspapers in which it was pub- lished and the date of publication. It would also be well to cut from the papers the notice, as published, and paste it upon the record book. If there has been a waiver of such notice, a certified copy of such waiver will take the place of the foregoing. Then should follow a record of the doings of the stock- holders, commencing substantially as follows : At a meeting of the stockholders of the Company, held at , in the town of , at o'clock in the noon, on the day of , A. D. , in pursuance of the notice copied above, A. B., a stockholder of said cor- poration, was duly appointed temporary chairman, and C. D. clerk of said meeting. E. P. and G. H., also stockholders, were appointed a committee to draft by-laws and report to said meeting. Said committee reported the following, which were unanimously adopted as the by-laws of the corporation. (The by-laws will of course be varied to suit the pleasure of different companies. The following general articles would be sufficient to meet the exigencies of an ordinary corpora- tion) By-Laws. 1. The stock, property and business, of this corporation shall be under the care, management and control of a board of directors, consisting of not less than , nor more than ; who shall be annually chosen, by the stockholders from their own number, at their annual meeting. 2. The executive officers shall consist of a President, Sec- retary and Treasurer. (It is frequently provided that the offices of secretary and treasurer may be filled by the same person). 3. Of the Duties of the President.— He shall preside at all meetings of the stockholders of said Company when pres- ent, and in his absence the meeting shall be called to order by the Secretary and a President pro tern, be appointed. He 250 OF CORPORATIONS. shall also perform all the duties specially required of him, by the act under which this corporation is organized and by the statute laws of this State, and shall have general charge, subject to the control of the directors, of the executive busi- ness of the Company. 4. Of the Duties of the Secretary. — He shall duly record the votes, doings and proceedings of the stockholders, and of the directors, at their several meetings, in a book to be open at all reasonable times to the inspection of the stock- holders ; and at each annual meeting, and at such other times as shall be required by the directors, shall make a statement of the doings and condition of the corporation ; and shall discharge all such duties as are specially required of such officer by the act and statutes aforesaid. He shall also duly send, by mail or otherwise, to the stockholders and directors, the notices called for by these by-laws. 6. Of the Duties of the Treasurer. — He shall receive, have charge of, and safely and securely keep, the moneys and all valuable papers of the corporation, and shall cause to be entered in books, to be kept for that purpose, a statement of all moneys received and disbursed on account of said Company, which books shall at all times be open to the inspection of the directors of said Company, and at all reasonable times to the inspection of its stockholders ; and said officer may, on behalf of the corporation,, pay and discharge its proper in- deljtedness, and to this end, but for no other purpose, may make, draw, endorse and accept, in the name and on behalf of the Company, checks, notes and drafts. He shall also perform all other duties specially required of such officer by the act and statutes aforesaid. He shall also give bond in the sum of dollars, to the acceptance of the directors, for the faithful discharge of the duties of his office ; provided, however, that whenever the Treasurer shall be the owner of unincumbered stock of said corporation, to the amount in value of dollars, the directors may in their discretion dispense with said bond. 6. Of Stockholders^ Meetings. — ^Annual meetings of the stockholders of said Corporation, for the choice of directors OP CORPORATIONS. 251 and the transaction of other appropriate business, shall be held at the office of said Company in said town of , on the first Tuesday of in each year. Written notices of such annual meeting shall be sent to each stockholder by the Secretary, at least six days before such meeting ; such notices shall be directed to each stockholder at his residence and duly deposited in the post office in said town, postage paid. Special meetings of the stockholders shall be held at any time upon like notice, and the Secretary shall give such notice upon request in writing of the holders of one-fourth the stock of said corporation, requesting that such special meeting may be held, and specifying the purposes, time and place of meeting ; all of which particulars shall be stated in the notice from the Secretary to the stockholders. 7. Of Directors' Meetings. — Regular meetings of the Di- rectors of said Company shall be held on the Tuesday of each month, and special meetipgs may be held whenever the President or Secretary by special notice sees fit to call them. 8. At all stockholders' meetings, each share shall entitle the holder tliereof to one vote, and all votes shall, if re- quested by any stockholder, be by ballot, with the name of the stockholder and number of shares held by him endorsed thereon. Stockholders may vote by proxy, duly authorized in writing within months prior to the meeting at which the vote is cast. 9. Of Assessments upon the Capital Stock. — The Treasurer shall give notice by letter, addressed to each stockholder at his place of residence or delivered to him personally, mailed or delivered at least days before payment shall be re- quired, of each call made by the directors for payment of an assessment upon the capital stock of the Company. Such assessments may be made by the directors at any regular meeting, or at any special meeting called for that purpose. 10. Regular stock transfer books shall be kept by the Sec- retary, and no transfer shall be permitted except upon said books, by the stockholder in person, or by power of attorney duly executed by him for that purpose. 11. Of the Amendment of By-Laws. These By-Laws may 252 OP CORPOKATIONS. be altered or amended, at any annual meeting of the corpo- ration, by a major vote of the stock represented, or at any legal meeting, duly called for that purpose, by a major vote of the stock represented ; provided, however, that no altera- tion at any other than an annual meeting shall be valid, unless a majority of the whole stock of the company shall be represented at such meeting. After the adoption of the foregoing By-Laws, A. B., C. D., E. F., and G-. H. were elected Directors, and said A. B. was duly elected President, said 0. D. Secretary, and said E. P. Treasurer of said corporation, for the ensuing year. ■ The meeting then on motion of G. H. was dissolved. Attest. , Secretary. Wliile the directors usually have the exclusive manage- ment of the business of every corporation, it is entirely com- petent, and, where the action contemplated is of unusual importance, — as the building of new mills or the investment of a large amount of its capital in any new enterprise, — would be desirable, that the stockholders should pass a vote, requesting the directors to take such action as may be named in the vote. In such a case the following form would be proper : In stockholders' meeting, duly held, &c.. Voted, Tliat the directors of this company be requested, — if in their judgment it be expedient, — to purchase of , upon such terms as they may deem proper, at a price however not exceeding -: dollars, property described as follows, to wit : (The Secretary should always attest the record of the do- ings of the stockholders and directors at each meeting, and should in like manner attest copies of such papers as are ex- tended upon hisTecord.) The record of the doings of the directors should be kept substantially in the same manner as that of the stockholders, and should be attested in the same manner. When a corporation is organized under a special charter, a copy of such charter, instead of the articles of association and agreement, should be the first thing upon the record book : and for additional duties of the officers of such cor- OP CORPORATIONS. 253 poration, reference should be had to said charter, as well as to the general laws of the State. Skeleton forms of votes and of various instruments are annexed, for the convenience of those who may require them. Assessment upon Capital Stock. Voted, That an instalment of dollars on each share of the capital stock of this corporation be called for, payable to the Treasurer on or before the day of next. - Vote to Convey Real Estate op the Corporation. Voted, That this Corporation accept the proposal of A. B. for the purchase of the property described as follows : and that B. F., President of this Corporation, be and he hereby is duly authorized to execute all necessary and proper papers for the due transfer and conveyance thereof to said A. B. The Secretary should record in the books of the corpora- tion his doings, in publishing the articles of association and depositing in the office of the Secretary of State, County or Town Clerk, the certificates and other papers required to be so published or deposited. The following general form of the certificate of the organi- zation of a joint stock corporation will give an idea of what should usually be set forth, and may be varied to meet addi- tional exigencies : 6. Certificate op Organization. The subscribers, being the President and a majority of the Directors of the Company, a corporation organized under the statute laws of the State of , authorizing and regulating the formation of stock corporations, located in the town of in said State, hereby certify as follows : 1. Said corporation is formed for the following purposes, to wit : 2. The amount of their capital stock is dollars. 3. The amount of their capital stock actually paid in is dollars. 254 OF CORPORATIONS. 4. The names of stockliolders and the number of shares respectively held by each is as follows : (Names of Stockholders.) (No. of Shares.) Dated at this day of , A. D., 18 . President. Directors. S3 A. D., 18 . State of County of Personally appeared , known to me as the Pres- ident and a majority of the directors of the Company, and made oath to the truth of the foregoing certificate by them subscribed. Before me, 7. Common Form op Transfer. Shares, (place and date.) For value received, I, A. B., of , hereby sell and transfer to C. D., of , shares of the capital stock of the Company, now standing in my name on the books of the said corporation. (K the transfer is as collate- ral security this fact should appear in the certificate, for the safety of the collateral holder as well as the debtor, as he may otherwise become liable for the debts of the corporation without designing to become an actual member of it.) , Dated at - gage debt, to recover of the insurers the full amount of the loss to his own use, without first assigning his mortgage, or any part thereof, to them. »That lie is not bound to account to the mortgagor for any part of the money, so recovered, as in part payment of the mortgage debt ; that it is not, in effect even, a payment, either in whole or in part, but that he still has a right to recover his whole debt of the mortgagor, and that when the debt is thus paid by the debtor, tlie money is not, in law or equity, the money of, or to be paid to, the in- surer, who has already paid the loss." As these positions will be disputed by many, I will state the case and the reason- ing, more fully than would be desirable if the question were not, not only important and interesting, but also an open and unsettled one, in general jurisprudence. The plaintiff, in that case, made the insurance in his own name and for his own benefit, not describing his interest as that of a mortgagee, and paid the premium out of his own funds. The insurance was for f 300, on Ms interest in a two story wooden barn. That interest, in fact, was that of a mort>- gagee, under a deed previously made to him by one Murphy, conditioned for the payment of $400, which debt was out- standing and unpaid at the time of making the policy, the fire, and the demand of payment. The defendant company admitted the loss by fire, and its liability, unless they had a right, as a preliminary condition to such payment, to demand an assignment of the plaintiff's mortgage interest, as set forth in the agreed facts, or of such proportion thereof as the amount to be paid by them would bear to the whole mortgage debt. The plaintiff declined to make such assignment, and brought his action to recover, as for a total loss. Upon that condition of facts, the Chief Jus- OP INSURANCE. 299 \ tice says, " The court are of opinion that the plaintiff, hav- ing insured for his own benefit, and paid the premium out of his own funds, and the loss having occurred by the pei'il in- sured against, he has, prima facie, a good right to recover ; and having the same insurable interest at the time of the loss, which he had at the time of the contract of insurance, he is entitled to recover a total loss. The court are further of opinion, that if the defendant could liave any claim, should the plaintiff hereafter recover his debt in full of the mort- gagor, it must be purely equitable ; that the defendants can have no claim until such money is recovered, if at all ; and, tliereforc, that they have no right to demand the partial transfer of the mortgage debt, by them required, as a condi- tion to their liability to pay, pursuant to the terms of their policy. This consideration is perhaps decisive of the present case ; but the question having been argued upon broader grounds, and some authorities cited to sustain the claim of the defendants, which may give rise to further litigation, we have thought it best to consider the other question now. " We are inclined to the opinion, both upon principle and authority, that when a mortgagee causes insurance to be made for his own benefit, paying the premium from his oavu funds, in case a loss occurs before his debt is paid, he has a right to receive the total loss for his own benefit ; that he is not bound to account to the mortgagor for any part of the money so recovered, as a part of the mortgage debt ; it is not a pay- ment, in whole or in part ; but he has still a right to recover his whole debt of the mortgagor. So, on the other hand, when the debt is thus paid by the debtor, the money is not, in law or in equity, the money of the insurer who has thus paid the loss, or money paid to his use. " The contract of insurance with the mortgagee is not an insurance of the debt, or of the payment of the debt ; that would be an insurance of the solvency of the debtor ; of course, as a contract of indemnity, it is not broken by the non-payment of the debt, or saved by its payment. " It is not, strictly speaking, an insurance of the property, in the sense of a liability for the loss of the property by fire, 800 OF INSURANCE. to any one who may be the owner. It is, rather, a personal contract with the person having a proprietary interest in it, that the property sliall sustain no loss by fire within the time expressed in the poUcy. It is a personal contract, which does not pass to an assignee of the property. A mortgagee has a proprietary interest, a title as owner, in the mortgaged prop- erty, not indeed absolute, but defeasible ; still, it is a propri- etary interest in that property, and the insurer guarantees to him, that the subject in which he has such interest shall not be destroyed or diminished, by the peril insured against. " There is no privity of contract or of estate, in fact or in law, between the insurer and the mortgagor ; but each has a separate and independent contract with the mortgagee. On what ground, then, can the money thus paid by the insurer to the mortgagee be claimed by the mortgagor ? But if it cannot, it seems, a fortiori, that the insurer cannot claim to charge his loss upon the mortgagor, which he would do if he were entitled to an assignment of the mortgage debt, either in full or fro tanto. " The better to understand the precise case under considera- tion, it may be well to distinguish it from some, which may seem like it, but depend upon other principles. " If the mortgage debt is paid, and the mortgage discharged before the loss by fire, it may well be held, that the mortgagee, the assured, cannot recover ; not merely because the debt is paid, but because the mortgage is thereby redeemed, and re- vested in the mortgagor ; and the proprietary interest of the assured in the property insured, in respect to which alone he had any insurable interest, is determined. And it is a fixed rule of law, that, to make a policy valid, and enable the assured to recover a loss, he must have an interest in the subject, when the contract is made, and when the loss occurs. He must have such an interest when the contract is made, otherwise it is a wager policy, and void ; and when the fire occurs, otherwise he sustains no loss by any damage done by the fire to the thing insured, and he has no claim on the con- tract of indemnity. So, if an owner insure his house, which OP INSURANCE. 301 is burnt within the time limited ; if he has sold his house in the meantime, he has no legal claim to recover. " Another case, quite distinguishable, is, where the mort- gagor causes insurance to be made on the mortgaged premises, payable to the mortgagee in case of loss. In that case, it is the mortgagor's interest in the subject which is insured, with an irrevocable power of attorney. In legal effect, an assign- ment, to the mortgagee, as additional collateral security, to receive the avails of the loss, if one happens. In such case, it is very clear, that in case of loss, the insurers must pay the whole amount of the loss, without regard to the fact, whether the debt has or has not been paid. If the mortgage debt has not been paid, the money received will go to pay it pro taiito, and thus enure to the benefit of the mortgagor, by leaving so much less of his debt for him to pay. If the mortgage debt has been paid, then the loss, when received by the mortgagee, is received from a fund placed in his hands for a special purpose, which has been accomplished ; it is tlie proceeds of an insurance of the interest of the mortgagor, by a contract with him, on a consideration made by him, and assigned to the mortgagee ; and of course he receives it to the use of the mortgagor, and must account to him for it. " There is another case, not uncommon in practice, where it is agreed at the time of the making of the mortgage, that the mortgagee may cause the property to be insured at the expense of the mortgagor, and that the premium shall be added to the principal and interest, as the debt to be paid on redemption. This is a valid contract ; it is not obnoxious to the charge of usuiy ; for, though the sum thus paid enures ilicidentally to the benefit of the mortgagee, it goes ultimately to the mortgagor's benefit. Then, if a loss occurs before the debt is paid, the sum payable to the mortgagee is the pro- ceeds of a security furnished by the mortgagor, and then, by a general rule of law, applicable to the proceeds of all secu- rity furnished by a debtor to his creditor, it goes in reduction of the debt. It is, in effect, a security furnished by the mortgagor ; the money received under it is his money, and extinguishes his debt in the same manner as if paid by him. 302 OF INSURANCE. " In all these cases, the mortgagor pays the premium ; the amount of insurance is a sum placed in the hands oX the mortgagee, at the expense of the mortgagor, and as further collateral security for the debt, and of course tlie mortgagee is trustee for the mortgagor, first, to apply the proceeds of that, as of all other collateral securities, to the payment -of his debt ; but, if the debt has been paid, or there is an over- plus, he is a trustee for the mortgagor. But this furnishes no defence to the insurer. The mortgagee had a title, a qualified title, to the whole mortgaged property ; had a right to insure the whole insurable value in his own name ; and whether, having recovered the whole, he has a right to retain it to bis own use, or is bound to account for it to the mort- gagor, it is wholly immaterial to the insurer. It depends on the contract, or the relations subsisting between the mort^ gagor and mortgagee, with which the insurer has no con- cern. " So, it was held in a New York case, that a commission merchant, who had made advances or incurred expenses on goods consigned to him for sale, might insure the whole and recover the whole in his own name ; and that it was no de- fence for the insurer, that the assured was not absolute owner, or might be liable to account to his principal. " But it is then intimated, that the mortgagee is trustee for the mortgagor ; and, that on the ground of this fiduciary re- lation, what he receives in that character he must account for. But in truth he is not such trustee. Nothing (an em- inent judge has said) is so likely to mislead as a simile. In some very limited respects, a mortgagee is a trustee ; as, when he has entered and is in receipt of the rents and profits, he is liable to account therefor, and, in that respect, may be denominated a trustee. This point has arisen in many cases ; but a recent one is direct to the point and decisive : Clark vs. Sibley, 13 Metcalf, 210. " Wilde J., in giving the opinion of the Court, cites the case of Cholmondeley vs. Clinton, 2 Jac. & Walk., 183. " If this is true in England, where the rights of the mort- gagee, after condition broken, are purely equitable, and such OP INSUKANCE. 303 as are administered by a court of equity, much more in Massachusetts, where the riglit to redeem, after condition broken, is ascertained and regulated by law, as eifectually as the right of the mortgagee to hold for the security of the debt. Besides, if the fiduciary relation subsisted, and the mortgagee were held to be a trustee for the mortgagor, it would follow, that as every reasonable expense incurred by the trustee would be chargable upon the trust fund, a pre- mium of insurance on buildings held for security, honestly and judiciously made, would be a charge on the fund, as much so as necessary repairs. But, in the absence of con- tract, no such charge is allowed to the mortgagee, in taking an account on a bill to redeem. White vs. Brown, 2 Gush. 412. Certainly, before entry for condition broken, the rela- tion of mortgagee and mortgagor is that of contracting par- ties, and not that of trustee and cestui qui trust. " But it is said, and in this certainly lies the strength of the argument, that it would be inequitable for the mortgagee first to recover a total loss from the underwriters, and after- wards to recover the full amount of his debt from the mort- gagor, to his own use. It would be, as it is said, to receive a double satisfaction. 'This is plausible, and requires con- sideration ; let us examine it. Is it a double satisfaction for the same thing, the same debt or duty ? " The case supposed is this : A man makes a loan of money, and takes a bond and mortgage for security. Say the loan is for ten years. He gets insurance on his own interest, as mortgagee. At the expiration of seven years the buildings are burnt down ; he claims and recovers a loss to the amount insured, being equal to the greater part of his debt. He afterwards receives the amount of his debt from the moi-tga- gor, and discharges his mortgage. Has he received a double satisfaction for one and the same debt ? " He surely may recover of the mortgagor, because ho is his debtor, and on good consideration has contracted to pay. The money received from the underwriters was not a pay- ment of his debt ; there was no privity between the mortga- gor and the underwriters ; he had not contracted with them 304 of' insurance. to pay it for ]iim, on any contingency ; he had paid them nothing for so doing. They did not pay because the mort- gagor owed it ; taut because they had bound themselves, in the event which has happened, to pay a certain sura to the mortgagee. But the mortgagee, when he claims of the un- derwriters, does not claim the same debt. He claims a sum of money due to him upon a distinct and independent con- tract, upon a consideration, paid by himself, that upon a cer- tain event, to wit, the burning of a particular house, they will pay him a sum of money expressed. Taking the risk or remoteness of the contingency into consideration, (in other ■words, the computed chances of loss), the premium paid and the sum to be received are intended to be, and in theory of law are, precisely equivalent. He then pays the whole con- sideration, for a contract made without fraud or imposition ; the terms are equal, and precisely understood by both parties. It is in no sense the same debt. It is another and distinct debt, arising on a distinct contract, made with another party, upon a separate and distinct consideration paid by himself. The argument opposed to this view seems to assume, that it would be inequitable, because the creditor seems to be getting a large sum for a very small one. This may be true of any insurance. A man gets a thousand dollars insured for five dollars for one year, and the building is burnt within the year ; he gets a thousand dollars for five dollars. This is because, by experience and computation, it is found that the chances are only one in two hundred that the house will be burnt down in any one year, and the premium is equal to the chance of loss. But suppose, — for in order to test a princi- ple we may put a strong case, — suppose the debt has been running twenty years, and the premium is at five per cent., the creditor may pay a sum, equal to the whole debt, in pre- miums, and yet never receive a dollar of it from either of the other parties. Not from the underwriters, for the contingency has not happened, and there has been no loss by fire ; nor from the debtor, because, not having authorized the insurance at his expense, he is not liable for the premiums paid. " What then is there inequitable, on the part of the mortga- OF INSURANCE. 305 gee, towards either party, in lioWinp; both sums? Tliny are both due upon vahd contracts with him, made upon snflRcient consideration paid by himself. There is nothing inequitable to the debtor, for he pays no more than he originally received in money loaned ; not to the underwriter, for he has only paid upon a risk voluntarily taken, for which he is paid by Ihe mortgagee, a full and satisfactory equivalent. '• It may then be said, that upon these grounds a wager policy might be held valid, and a good ground of action. "We suppose a wager policy is not held void because it is with- out consideration, or unequal between the parties ; but, be- cause it is contrary to puljlic policy, and prohibited by positive law. But, independently of considerations of public policy, if an insurance was made on a subject in which the assured has no pecuniary interest, — although in other respects he may be deeply concerned in it, and on that ground be Trilling to pay a fair premium, — made with a full knowledge of all the circumstances, by both pai'ties, without coercion or fraud, we cannot perceive why it would not be valid as between the parties. But upon the strong objections, on grounds of pub- lic policy, to all gaming contracts, and especially to contracts which would create a temptation to destroy life or property, such policies, Avithout interest, are justly held to be void. '' We are not unaware, that there arc very respectable au- thorities opposed to the views of the law above taken. " Mr. Phillips, in treating of the rights of parties after an abandonment, seems to put the rights of the underwriter, who has paid a loss, on the grounds of subrogation, and then adds : ' Where a policy against fire is effected by a mort- gagee for his own benefit, in case of loss, and payment by the underwriters, they thereby become entitled to a proportional interest in the debt secured by the mortgage.' 2 Pliil. Ins. (2d ed.) , 419. In support of this position, the learned author cites several authorities, which we propose to examine. " Robert vs. Traders Ins. Co. 17 Wend. 631. We think this case does not support the position for which it is cited. The mortgagor was the assured, and had assigned his policy to the mortgagee, as a furtlier collateral security. A suit was 20 306 OF IN'SURAXCE. brought in the name of the mortgagor, the assuicd, hut for tlie benefit of the mortgagee, and judgment obtained against tlie insurers ; and before the satisfaction of that judgment, the mortgage debt was paid to the mortgagee by the mort- gagor, by coercion, to avoid foreclosure, and the interest of the mortgagee was thus determined ; and it was insisted by the defendants, that this satisfaction of the debt discharged the judgment on tlie policy. But it was held otherwise, and that the mortgagor was entitled to recover the insurance. The effect of this adjudication was, that it was an insurance made upon the interest, at the expense, and for the ultimate benefit of the mortgagor ; that the assignee had a right to recover to his o^^'n use, until the payment of his debt, and then held as trustee for the mortgagor. This case, we think, affirms the principles on which we proceed. " Mr. Phillips also cites Tyler vs. J5tna Ins. Co. 16 Wend. 385. Some portion of the language of the chancellor, in giving the judgment of the court of errors, in that case, is certainly more in point. He states that one, who has a lien on land and buildings for unpaid jjurchase money, has an in- surable interest, and may insure and recover to the whole amount of the unpaid purchase ; but he adds, that when he shall receive that money from the purchaser, he will be bound, by the principle of equitable subrogation, to account for it to the msurers who have paid his loss. The case went through several courts, and is somewhat complicated. As we under- stand it, these latter remarks of the chancellor stated a prin- ciple not necessary to the decision of the case. The questions were, whether the plaintiff, who held a bond for a deed, an equitable title only, had an insurable interest ; and whether he had any prior insurance when the policy was made. It was held, that a policy obtained by his vendor, the owner of the fee, was not an insurance in which this plaintiff had, or could have, any interest, and therefore, that it was no insur- ance for him. The remarks above cited applied to the policy obtained by the owner of the fee, which could cover his debt only, and subject him to account, in case of recci\ing the money from the debtor after recovering it from the under- OP INSURANCE. 807 writers. Whether such would be the consequence or not, could make no difference, in regard to the right of this plain- tiff to recnver of these defendants, and was not, therefore, embraced in the judgment. "Looking at tlie analogies and illustrations on which the reasoning of the learned chancellor is founded, it may be a question, whether he has not relied too much on the cases of marine insurance, in which the doctrines of constructive total loss, abandoimient and salvage, are fully acknowledged, but which have slight application to insm-ances against loss by lire. " We are then brought to the case of Carpenter vs. Provi- dence Washington Ins. Co. 16 Pet. 495. The language of Mr. Justice Story, in giving the opinion of the court in that case, is certainly very strong : but the part of it which bears upon the point of the present case was not necessary to the judgment of the court. The question for the court was, whether Carpenter, the plaintiff, had a prior insurance on the premises at the time of making this policy, not disclosed. In fact he had before made an insurance on his own intei'cst, for the purpose of assigning it to a mortgagee, and had assigned it to a mortgagee ; so that it was insisted, that it was not a prior assurance to himself, when he obtained the policy now in suit. But it was held, that, being a policy made 1)y the mortgagor on his own interest, and assigned to his mortgagee, as a further collateral security, it was in legal effect an insur- ance for himself, because, if recovered by the assignee, it would go to pay his own debt, pro tanto, and relieve him ; if his debt was otherwise paid, the assignee would recover as trustee to the mortgagor ; so that, either way, it was an assur- ance for him. The judge is pointing out the difference be- tween an insurance of the interest of the mortgagor, and an insurance direct to a mortgagee, on his interest as mortgagee, and then states that his interest is the debt, and that, if he first recovers of the underwriters, as he may if his delit is not paid, and afterwards the debt is paid by the mortgagor, he will hold the money in trust for those insurers who have paid him his loss. It is obvious, we think, that these last 308 OP INSURANCE. observations were merely following out a train of thought, sug- gesting the distinctions between the two species of insurance, and that the principle announced was not necessary to the de- cision, and may not, therefore, be necessarily considered as the judgment of the court. Indeed, it may have been tlie learned judge's own first impression, without having carefully consid- ered it in all its relations. Any statement of legal principle from so liigh a source is entitled to great respect ; but under the circumstances, we cannot deem it conclusive. " It is obvious to remark, as the result of all these cases, concurring with many others, that a mortgagee has an insur- able interest ; that he may insure generally on the property, and need not disclose the peculiar nature of his interest unless inquired of ; that, before payment of his debt, he may re- cover and receive to the amount of his debt ; and that it is no defence for the underwriter, that the plaintiff holds a de- feasible, and not an absolute, title to the property insured. Some other cases are referred to, as analagous, but the analogy is not very clear or direct. "In Godsall vs. Boldero, 9 East. 72, a creditor made insur- ance on the life of Mr. Pitt ; Mr. Pitt died insolvent, whilst the policy was in force, and an action was commenced. Be- fore it came to trial, the debt was paid by the executors, from funds furnished by parliament for that purpose, and it was held to be a bar to the plaintiff's action. Strictly speaking, one can have no interest, in the nature of property, in tlie life of another ; and we think that this case, influenced to some extent by existing English statutes, war decided on the ground that the interest was terminated when the debt was paid. Besides, it might well be maintained, that, in conse- quence of Mr. Pitt's devotion to the public service, and in lienor to his memory, the government intended by the public bounty, to provide that no one should suffer pecuniary loss by his insolvency ; and that, to permit the plaintiffs to recover, would be to throw a loss on the insurers, for which they could have no indemnity. The bearing of this case upon the present is but slight. OP INSURANCE. 309 " In a recent edition o Kent's Commentaries, the priuoiple, that the insnrer on the interest of a mortgagee, as sncli, on payment of a loss, is entitled to a proportion of the mortgage debt, is stated in a note, on tlie authority of Carpenter- ■ys. Pro^'idence Washington Ins. Co. ; but it seems to add nothing to the weiglit of that authority. " On a view of the wliolc question, the court are of opinion, that a mortgagee who gets insurance for himself, when tlic insurance is general upon the property, without limiting it in terms to his interest as mortgagee, but when, in point of fact, his only insurable interest is that of a mortgagee, in case of a loss by lire, before tlie payment of the debt and discharge of the moi'tgage, has a right to recoYcr the amount of tlx; loss for his own use." The question came up agayi in different form, l>cfore the same court, (Suffolk Fire Ins. Co. vs. Boyden, 9 Allen 123), and Judge Hoar in delivering the opinion of the court, says : " The only distinctions that are suggested between the case at bar and King vs. State Ins. Co., 7 Cush. 1, are these : 1. That this is a suit in equity, and that was a suit at law; 2. That here the insurance is expressly made upon the inter- est of tlie assured as mortgagee, while there it was upon liis interest in the property, which was only that of a mortgagee, without disclosing its precise character ; and 3. That tlie de- cision of the question upon which this case depends was not necessary to the judgment rendered in the other. " We do not think it expedient or desirable to revise the case of King vs. State Ins. Co., or to re-state the argument so fully presented by tlie late chief justice in giving the opinion of the court. That case was very fully considered ; and, af- though it has been sulijected to some adverse criticism, we find no I'eason for dissatisfaction witli its principles or con- clusions. On the contrary, the objections which liave been urged against it seem to us to rest upon misapprehension, and we think that the doctrines there stated are, and ought to be, the settled law of tliis commonwealth. It was decided upon the ground, that an insurance by a mortgagee of his interest in the mortgaged property is not an insurance of the 310 OF INSURANCE. debt, althovgh the amount of the deht is the measure of Ms in- surable interest in the froperty. There is no privity of contract between the insurer and tlic mortgagor, but each has a con- tract with tlie mortgagee, separate and independent from tlie otlier. Tlie mortgagee cannot cliarge to tlie mortgagor the premiums which he pays for insurance ; and it is conceded that e converso, the mortgagor can derive no benefit from the insurance in case of loss. YV'liite vs. Erown, 2 Cusli. 416. But why should not the mortgagor have the benefit of the in- surance ? Tlie equitable argument in his favor would seem to be at least as strong as that of allowing the insurer the advantage of a subrogation of the debt. The whole interest of the mortgagee in the property, in its inception, and while it continues, is only for the purpose of indemnity. He takes it as a security from which he may recover. what is due to him, if the debt is not paid. If the insurer pays a loss by fire, equal to the whole debt, the mortgagee receives, through his title to the property held as a security, the amount of his debt, excepting only the premium paid, which may be a very trifling proportion of it. The mortgagor has lost the same amount. Why should not the mortgagor pay the premium, and be entitled to treat the debt as cancelled ? ' The sufficient answer is, because the insurance is a wholly collateral contract, which the law allows the mortgagee to make, and with the result of which the mortgagor has no concern. The whole considera- tion proceeds from the mortgagee. If there is no loss by fire, he loses the whole amount of premiums paid, v/ithout any claim upon the mortgagor for compensation. The premiums paid are intended to be a just equivalent for the sum to be deceived on the happening of the contingent event. The larger sum to be received if the event happens, is fixed in a just proportion to the chance that it will not happen, and that the premium will have been paid without any return. It would be manifestly unjust that the mortgagor should have the advantage of an indemnity, when he has borne no part of the expense of obtaining it. " On the other hand, the insurer has received a full equiva- lent for the loss which he is called on to pay. AVhy should OP INSURANCE. 311 he receive his premium, and subject the mortgagee to the loss of it if no fire occurs, giving him no corresponding ad- vantage in case a fire happens ? The debt, as between the insurer and the mortgagee, is as purely a collateral contract as is tlic insurance when considered in relation to the mort- gagee and mortgagor. It is urged, that insurance is a con- tract of indemnity. But what is an indemnity must be deter- mined liy a correct application of the word to the subject mat- ter. The insurance is against a loss by fire of property in which the insured has, at the time of the insurance and at the time tlie loss happens, an insurable interest. If the insurer pays no more than the value of the property destroyed, no more than the siun insured upon it, and no more than the interest of the insured at the time of the loss, he pays no more than an indemnity under his contract. That the loss may, by means of other contracts of a collateral character, or indirectly, give the insured an advantage, is of no consequence. Could there be a more exact indemnity in any case of loss by fire, than if the insurer should replace the property burned, when its value does not exceed the sum insured nor the insuraljle interest of the holder of the policy? Yet what claim would the insurer who should rebuild have to an assignment to him of the mortgage debt ? "Again, there are incidents to a mortgagee's estate, which may give him, as the proceeds of the mortgage, a larger value than his mere debt. He may foreclose his mortgage, and thus acquire an absolute title to property of far greater value than the amount due him. "But, without extending the discussion, it is sufficient to say, that the doctrine which we now affirm was one of the grounds upon which the decision in King vs. State Ins. Co. was expressly made to rest; that the conclusion, that the in- surer has no interest in the mortgage debt, is as decisive against his claim in equity as at law; and, that if the title of the insured was that of a mortgagee, it is immaterial whether it was insured eo nomine or otherwise. "The agreement in tlie policies, that in case of the pat/ment of a loss the insured will assign to the insurers ' all his rights 312 OP INSUEANCE. to recover satisfaction therefor from any other person or cor- poration,' does not affect this case, because the mortgage debt is not in any sense a right to recover satisfaction for the loss by fire." In the conflict of authorities upon this important and in- teresting question, it will readily be seen that the courts and elementary writers ai'e able, on the one side and on the other, to give, for the opinions they severally espouse and de- fend, reasons which seem sensible and sound, and, in the absence of the opposite views and the considerations which are pressed in their defence, would probably be quite satis- factory and convincing. I think, that the law of the two cases from Massachusetts is likely to be controlling of all cases resting upon the same facts. It is difficult, if not impossible, satisfactorily to reply to and overthrow the reasoning. The most serious objection, which practical insurance managers make to the results there reached, is, the increase of what has been above re- ferred to as the moral hazard. It is quite apjDarent, that if both mortgagor and mortgagee are separately insured, to the full extent of their several and distinct interests, and both are entitled to be paid in the event of loss, — the mortgagor to the full value of the property, and the mortgagee to the amount of his debt, — and if the mortgagee may still, in addi- tion to the insurance money, collect of the mortgagor the amount of his debt, the mortgagee will be pecuniarily bene- fitted by the fire. If the debt is paid by the Tiortgagor he- fore a fire, he receives only its amount, and los s the premi- ums paid by him. If he first receives the insurance money and then is paid his debt, he not only gets back the amount of the premiums paid out, but usually a much larger sum. Now, it would be quite easy for two dishonest men, com- bining as mortgagor and mortgagee, to divide this profit be- tween them, and procure the burning of the insured prop- erty. The answers to that view are several, though no an- swer can be made which entirely does away with the objec- tions. OP INSURANCE. 313 The fairest and most satisfactory disposal of the matter, and one which is adopted and acted upon by some of the most prudent, careful and responsible companies, is, to in- sert in their policies a provision or condition, that a mort- gagee's mterest shall not be protected unless specialli/ de- scribed as such ; and that in the event of loss by a mortgagee, who has insured on his own account and at his own expense, he sliall, upon payment of the amount of his loss, assign to the insurers such portion of his mortgage debt, as will leave him only enough, when added to his insurance money, to pay his debt and reimburse him for the premiums he has paid ; or that, upon being paid his debt and refunded his premiums with interest, he shall discharge the policy, aud assign his debt and its mortgage securities to the msurers. Section 7. Common Form of Fire Policy of a Stock Oompany, in use in the United States. No. 815. " By this policy of insurance, Tlie Insurance Company oif Hartford, in the State of Connecticut, in consideration of Fifty dollars (|50) to the said com- pany in hand paid by the assured hereinafter named, the re- ceipt whereof is hereby acknowledged, hereby insures James Sewall, of said Hartford, against loss or damage I13' fire, to the amount of Five Thousand Dollars, (^ioOOO), on property in said Hartford described as follows, to wit : First. On his dwelling house. No. 854 Jones Street, par- ticularly described in the application No. 815, of even date with this policy, subscribed by said assured and on file in the office of this company, $3000. Second. On furniture therein, - - 1200. Third. On jewels, ornaments, plate, engravings, paintings and picture frames, - 600. Fourth. Two gold watches, being the same now carried, one by said assured, and the other by Mrs. Sewall, 150. Fifth. On books and printed music, - - - 50. 15000 314 OP INSURANCE. All said articles are, and are to be, insured only as being located in said dwelling house, unless otherwise specially permitted by writing herein, or under the hand of some offi- cer or duly authorized agent of this company. And said company hereby agree to malce good to the said assured, and his' executors and assigns, all such immediate loss or damage, not exceeding in amount the sum insured, as shall happen by fire to the property above specified, from the twelfth day of March, 1869, at noon, to the 12th day of March 1870, at noon; the amount of loss or damage to be estimated according to tlie actual cash value of the property at the time of the loss, and to be paid sixty days after due notice and proofs of the same, made by the assured and received at this office, in accordance with the terms and conditions of tills policy hereinafter mentioned. 1. But 'provided, in case differences shall arise touching any loss or damage, after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to arbitrators indifferently chosen, whose award in writing shall be binding on the parties as to the amount of such loss or damage, but shall not decide the lia- bility of the Company under this policy: and provided further, that it shall be optional with the Company to repair, rebuild or replace the property lost or damaged, with other of like kind and quality within a reasonable time, giving notice of their intention so to do within thirty days after receipt of proofs licrein required ; and in case this Company elect to rebuild, the assured shall, if required, furnish plan and speci- fications of the building destroyed. 2. This Company shall not be liable for loss by theft at or after a fire ; nor for any loss or damage by fire caused by means of, or during an invasion, insurrection, riot, civil com- motion, or militai-y or usurped power ; nor for the loss of bills, notes, accounts, deeds, evidences of debt, or securities of property of any kind, money, bullion, jewels, plate, watches, musical or scientific instruments, ornaments, med- als, patterns, printed music, engravings, paintings, picture frames, sculpture, casts, models or curiosities, unless partic- OF INSUILVNCE. 315 ularly specified in the Policy ; nor from fires in buildings un- provided with good and substantial stone or brick chimneys ; nor in consequence of any neglect or deviation from the laws or I'egulations of police where such exist; nor for loss or damage caused by the falling of any building, or from any fire ensuing therefrom ; nor for any loss caused by the explo- sion of gunpowder, camphene, .or any explosive substance; nor by lightning, or the explosion of a steam boiler, unless fire ensues, and then for the loss or damage by fire only, which shall be determined by the value of the damaged proi> erty after the casualty by explosion or lightning ; nor for loss or damage caused by removal of propei'ty from a building, except it be proved that such removal was necessary to pre- serve the property, in which case the damage shall be borne by the assured and the Company, in the proportion tliat the whole sum insured bears to the whole value of the property insured. 3. If an application, survey, plan or description of the property herein insured is referred to in this Policy, such ap- plication, survey, plan or description shall be considered a part of this contract, and a warranty by the assured; and any false representation by the assured of the condition, sit- uation or occupancy of the property, or any omission to make known every fact material to the risk, or an over valu- ation, or any misrepresentation whatever, either in a written application or otherwise; or if the assured shall have, or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the Company written hereon ; or if the above-menti oiled premises shall be occupied or used so as to increase the risk, or become vacant and unoccupied, or the risk be increased by the erection of adjacent buildings, or by any other means whatever within the control of the assured, without the assent of this Company endorsed hereon; or if the prop- erty be sold or transferred, or any change take place in title, or possession, whether by legal process, or judicial de- cree, or voluntary transfer, or conveyance ; or if this Policy shall be assigned either before or after a loss without the con- 316 OF INSURANCE. senb of the Company endorsed hereon ; or if the premium shall be unpaid ; or if the interest of the assured in the prop- erty, whether as owner, trustee, consignee, factor, mortgagee, lessee or otherwise, is not truly stated in this Policy; or if the assured shall keep gunpowder, or phosphorus, or keep and use camphene, spirit gas, or chemical oils, without writ- ten permission in this Policy; then, and in every such case, this Policy shall be void. 4. And if in the opinion of the Company an over insu- rance exists, or shall be hereafter made on the property here- by insured, or the risk be increased by any means, or if for any other cause the Company shall so elect, the Company re- serve to themselves the right of cancelling this Policy by paying to the assured the unexpired premium pro rata. 5. This Insurance (the risk not being changed) may be continued for such further time as shall be agreed on, provi- ded the premium therefor is paid and endorsed on this Poli- cy, or a receipt given for the same, and it shall be considered as continued under the original representation ; but in case there shall have been any change in the risk, either within itself or by adjacent buildings, not made known to the Com- pany by the assured at the time of renewal, this Policy and renewal shall be void. 6. If the interest of the assiired in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, it must be so represented to the Company and so expressed in the written part of this Policy, otherwise the Policy shall be void. ■7. In case of any other insurance upon the property here- by insured, whether prior or subsequent to the date of this Policy, the assured shall be entitled to recover of this Com- pany no greater proportion of the loss sustained, than the sum hereby insured bears to the whole amount insured there- on, whether such other insurance be by specific or by general or floating policies. Re-insurance for any other Insurance Company, to be on the basis of joint liability with said Com- pany, and in the event of loss, this Company to pay its pro- OF INSURANCE. 317 portion of said loss sustained by said Company undci- their Policy. 8. In case of loss, the assured should use their best en- deaTors in saving and protecting the property from damage at and after the fire ; if they shall fail so to do, this (Compa- ny will not be liable for damage caused by such failure; and there can be no abandonment to the Company of the prop- erty insured. The assured shall forthwith give notice of said loss to the Company, and as soon after as possible render a particiilar account of such loss, signed and sworn to liy them, stating whether any and what other insurance has l3cen made on the same property, giving copies of the written portion of all Policies thereon, the actual cash value of the property, their interest therein, for what purpose and by whom the building insured or containing the property insured, and the several parts thereof, were used, when and how the fire orig- inated, and shall also produce a certificate under the hand and seal of a Magistrate, Notary Public, or Commissioner of Deeds, (nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, nor related to the assured,) stating that he has examined the circumstances attending the loss, knows the character and circumstances of tlie assured, and verily believes that the assured has, without fraixd, sus- tained loss on the property insured to the amount which such Magistrate, Notary Public or Commissioner of Deeds shall certify. And the assured shall, if required, submit to an examination under oath by any person appointed by the Company, and if deemed necessary by the Company, to a second examination, and subscribe to such examinations when reduced to writing; and shall also produce their books of account and other vouchers, and all property hereby in- sured, whether damaged or not damaged, and shall also pro- duce certified copies of all bills and invoices, the originals of which have been lost, and exhibit the same for examination to any person named by the Company. Damage to property not totally destroyed shall be appraised by disinterested men, mutually chosen by the assured and the Company, and the Company reserves the right to take the articles damaged at 318 OP INSURANCE. their appraised value. When personal property is damaged, the assured shall forthwith cause it to be put in the best or- der possible, properly arranged, and make an inventory thereof naming the quantity and cost of each article, and upon each article the damage shall be separately appraised ; and the detailed report of the appraisers in writing shall form a part of the proofs hereby required, one half the ap- praisers' fees to be paid by the Company. In case of loss on property held in trust or on commission, or if the interest of the assured be other than the entire and sole ownership, the names of the respective owners shall be set forth with their respective interests therein, certified to' by them. If this Policy is made payable in case of loss to a third party, or held as collateral security, the proofs of loss shall be made by the party originally insured, unless there has been an ac- tual sale of tlie property insured. And until such proofs, de- clarations and certificates are produced, and examinations and appraisals permitted, the loss shall not be payalsle. All fraud or attempt at fraud, or false swearing on the part of the assured, shall cause a forfeiture of all claim under this Policy. 9. It is furthermore hereby exjyressly provided, and mutually agreed, that no suit or action against this Company, for the recovery of any claim by virtue of this Policy, shall be sus- tainable in any court of law or chancery, Unless such suit or action shall be commenced within twelve months next after the loss shall occur ; and should any suit or action be com- menced against this company, after the expiration of the aforesaid twelve months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstand- ing- 10. Camphene, Spirit Gas, Burning Fluid, Phosgene, or any other inflammable fluid, when used for a light, subjects the insured to an additional charge ; and permission for such use must be endorsed in writing on the Policy, otherwise this insurance shall be void. OF IXSUKANCE. 319 Gunpowder, Saltpetre, Phosphorus, Petroleum, Naptha, Benzine, Benzole, or Benzine Varnish, arc positively pro- hibited from being deposited, stored or kept, in any building insured, or containing any property insured, by this policy ; unices by special consent in writing, endorsed on this policy, naming each article specifically ; otherwise this insurance shall be void. Plate glass, in doors or windows, when the plates are <)f the dimensions of three feet square or more, also fences and privies, store furniture and fixtures, must be separately and specifically insured ; otherwise they are not protected by this policy. In witness whereof, the said Insurance Company have caused this policy to be signed by their President and attested by tlieir Secretary, in the city of Hartford, and State of Connecticut ; and this policy is made and accepted upoi the above express conditions, and is not valid and binding unless countersigned by the duly authorized agent of said Insurance Company at C. D. Secretary. A. B. President. Countersigned at , this 12 day of March, A. D. 1869. E. P. Agent. Form of Assignment op Policy op Insurance, to be En- dorsed UPON THE Policy. Assent. " The property hereby insured having been purchased by Henry Jameson, the Insurance Company consent that the interest of James Sewall in the within policy may be assigned to said purchaser ; subject, nevertheless, to all the terms and conditions therein mentioned and referred to." " Dated at Hartford, this l3th day of June, A. D. 1869." " F. W. Agent." Assignment. " For value received', I hereby transfer and assign to Henry Jameson and his assigns all my right, title and interest, in 320 OF INSURANCE. this policy of insurance, and all benefit and advantage to be derived therefrom." " Witness my hand, at Hartford, this 13th day of June, A. D. 1869." " JAMES SEWALL." Renewal. Insurance Co., of Hartford, Ct. Agency at , Registered No. Received of , j^^yDollars, being the Pre- mium on Dollars insured under policy No. , which is hereby continued in force for , to wit, from the day of , 18 , until the day of , 18 , at noon. Secretary. President. Countersigned at , this day of , 18 . Agent. Section 8. Notes on a Fire Insurance Policy. First. "In consideration of f50, to them in hand paid,^'' &c., " the receipt whereof is hereby acknowledged." The contract of insurance, being ordinarily without seal, must be upon sufficient consideration, to render it valid and obligatory. The consideration, in whatever form it may be paid, is called the premium. This is undoubtedly due when the contract of insurance is completed ; but in practice, in this country, the premium in marine insurance is usually paid by a premium note on time, which is given at or soon after the delivery of the policy. In Life Insurance policies, the premium is usually partly cash on delivery of the policy, and a part in a note payable on call, with stipulated conditions as to notice, &c. In some companies, the entire premium upon a life policy is cash on delivery. It is a usual condition of Fire Insurance that the premium shall be paid before the policy shall take eifect, and where the applicant is notified that the payment of the premium is a OP INSURANCE. 321 condition precedent to the taking effect of the insurance, no contract subsists while it remains unpaid ; although the policy may have been perfected and ready for delivery. But although, by the printed terms of the contract, it is stated that no policy will be considered binding until the pre- mium is paid, yet the agent procuring the insurance may waive such condition, and give a short credit ; and the de- livery of a policy without requiring payment raises a pre- sumption, that a credit was intended to be given. Of course where it is inferable from the facts of the case, that a credit is intended, the policy will be valid, (even if it contain such a condition of invalidity in its printed terms), though the premium has not been paid. Boehen vs. Williamsburgh City Ins. Co., 35 N. Y., 131. Where a policy provided, that " no insurance should be considered binding until the actual payment of the premium," and the assured proposed drawing a check upon the delivery to him of the policy, but the agent requested him to let it lie, and that he would call for it when he wanted it, and it was not actually paid till after the loss : it was held, tliat the agent of the insured had waived the actual payment of pre- mium, and that he had authority to do so. New York Cen- tral Ins. Co. vs. National Protection Ins. Co., 20 Barb., 468. The same doctrine has been sustained in New Jersey, Hal- leck vs. Commercial Ins. Co., 2 Dutch. 268 ; and in Connec- ticut it was held that an agreement, made in good faith, be- tween an insurance agent, having authority to receive an insurance premium, and the insured, that the agent shall become personally responsible to his principals for the amount of such premium, and the insured his personal debtor there- for, constitutes a payment of the premium as between the insured and the insurance company. Bouton vs. American Mutual Life Ins. Co., 28 Ct. 542, and Sheldon vs. Conn. Mutual Life Ins. Co., ib. 207. The Brooklyn Fire Insurance Company, through its presi- dent, agreed with the treasurer of the 1st Baptist church in Brooklyn, to continue renewing its policy and calling for the 21 322 OP INSURANCE. premium when desired, until one party or the other should give notice of a desire to cancel such agreement. Following this arrangement the renewals were made for sev- eral years, and within 30, 60, or 90 days afterward, the pres- ident would take the renewal receipt to the treasurer and col- lect the premium. On the 21st of July 1847, the last renewal had been taken to the treasurer, and in September 1848, following, the prop- erty was destroyed, and the renewal receipt had not then been delivered to the treasurer, nor had the premium been paid. The original policy stipulated, that " no insurance should be considered valid or binding, until the actual payment of the premium." It was held, 1st, that this was a valid insurance by parol, although there was a provision in the charter of the company that contracts of insurance signed by certain oflficers should be valid and obligatory, as if under the corporate seal ; that, not being an abridgment of the general power of the corpora- tion, or an exhaustive statement of it, but a mere specifica- tion of one mode in which it might be bound by its agents, which did not prevent its power to contract otherwise ; and, second, that the parol agreement of the president was an effective waiver of the pre-payment of the premium. Baptist Church vs. Brooklyn Fire Ins. Co., 28 N. Y., 153. The general rule undoubtedly is, that as to stock companies an officer or agent may waive the rule as to pre-payment of premium, and in the two cases cited from Connecticut the companies were mutual; but in reference to mutual compa- nies the general rule is, that no officer or agent has authority to waive a by-law or condition of insurance. It was decided by the Supreme Court of Massachusetts, in 1862, that " a policy of insurance executed and delivered by a mutual insurance company is invalid, until the cash payment of premium has been actually made at the office of the com- pany, if it contain an express stipulation to that effect ; and that such a stipulation would not be complied with or waived by a payment of the premium to an insurance agent, through OF INSUEANCE. 823 whom the application was made and the policy delivered, if the policy contained an express stipulation, that every insur- ance agent, broker, or other person forwarding applications or receiving premiums, is the agent of the applicant and not of the company ; although the company was in the liabit of settling a monthly account with him, and he, after the loss, tendered the premium to them." Tliey also held, that " the officers of a mutual insurance company have no power to wai^e a stipulation in a policy, which has been executed and delivered, that no insurance shall take effect, till the cash premiiim has been actually paid at the office of the company." Mulfrey vs. Shawmut Mutual Fire Ins. Co., 4 AUen, 116. Tlie same court decided in Brewer vs. Chelsea Mutual Fire Ins. Co., 14 Gray, 203, that " neither the president, secretary, or board of directors of a mutual company, have authority to waive a compliance with a by-law of the company. In Marine policies, as well as in life policies, notes are fre- quently given for the premium, or a part of it, payable at a fixed time. In such a case of a marine policy, with tlie clause, " in case the note or obligation given for the premium hereon be not paid at maturity, the full amount of pre- miiun shall be considered as earned and this policy becomes void, while said note or obligation remains over due and unpaid," the note given for the premium became due, and was protested. It was held, that the right of recovery on behalf of the insured was at an end. Wall vs. Home Ins. Co., 36N. y.,157. Under a policy of life insurance, to " 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," if the day of payment falls on Sunday the pre- mium is not payable till Monday, even if the assured dies on Sunday afternoon." Hammond vs. American &c. Life Ins. Co., 10 Gray, 306. Premium Notes are usually taken by mutual insurance com- panies, and are not infrequently received by stock compa- nies, for a portion of the premiums due upon ordinary fire, marine, and life policies. The power to take premium notes is implied in the power to insure, and is inherent in all in- 824 OF INSURANCE. surance corporations. A premium note would be valid in the hands of a hona fide assignee, if the insurance company had such power to take it for any purpose, as to make it at any time a valid conti'act in their hands ; but if a folicy is originally void, a premium note given for the same would also be invalid. In an action on a premium note to a mutual insurance com- Ijany, such notes furnishing tlie fund to which the other in- sured look for indemnity, the maker is estopped from deny- ing that he had an insurable interest. He can only get rid of the note, by surrendering his policy and taking it up. He cannot reduce the amount of his liabilitj', by settijig up that he was interested in part, only, of the projDcrty descrilaed. New England Mut. Fire Ins. Co. vs. Belknap, 9 Cush., 140. But a surrender of a premium note, by an arrangement with the company, would be binding unless impeached for fraud or mistake ; thoiigh it should subsequently appear that there were unadjusted losses, on which the maker had not been assessed and had made no payment. Hyde vs. Lynde, 4 Comst., 387. The policy and the premium note are independent con- tracts, and default by one party is not a rescission of the con- tract, and does not absolve the other party. Insolvency of the company and inability to pay the full amount of the pol- icy if there should be a loss, furnishes no defense to an ac- tion on a premium note ; for an insolvent party may enforce valid contracts in his favor. Alliance Mut. Ins. Co. vs. Swift, 10 Cushing, 433. Where the charter and by-laws of a company provide for an assessment in case of losses, it was held that without such losses no recovery could be had on the notes, although they were absolute on their face. Insurance Co. vs. Jarvis, 22 Conn., 133. We have stated that surrender of the premium note by ar- rangement with the company would be binding, unless im- peached for fraud or mistake ; but where a party surrendered his policy to an agent of the company, for cancellation, and it was marked cancelled, on the policy and also on the books OF INSURANCE. 325 of the company, and the agent at the same time agicccl to procure and surrender the premium note but did not do so, it was held that tlie cancelling of the policy did not dis- charge the note, so far as it was already liable for losses ; that the burden of proof was on the maker of the note, to show that the agent had autliority to promise the surrender of the note ; and that he would not be authorized to make such promise, merely by virtue of his authority to act as agent for the eoiupany in receiving applications and issuing policies. Marblehcad Mut. Fire Ins. Co. vs. Underwood, 3 Gray, 210. Although a policy should be regarded as absolutely void, by reason of an unauthorized transfer, so as to defeat an action for a loss by the assured, he is not released from the obligation of his premium note, until he has complied with the conditions of the policy and the charter of the company, requiring the payment of his proportion of all losses and expenses, that may have accrued prior to the sm-render of the policy and tlie alienation of the property. Where the by-laws of a mutual insurance company pro- vided, that all the cash premiums and deposit notes received by the company for the insm-ance of property should be deemed the absolute funds of the company, to be applied in payment of expenses, losses by fire, and returns of premi- ums ; it was held, that under the by-laws of such company, deposit notes became a part of the absolute funds of the company, and as such were collectible at the discretion of the directors, without regard to the validity of the assess- ment, for the payment of debts or liabilities of the company. Long Pond Mut. Fire Ins. Co. vs. Houghton, 6 Gray, 77. In an action by the insured upon a policy in which the receipt of the premium or premium note is acknowledged, this constitutes prima facie evidence of the payment of the pre- mium, and no further evidence of such payment, or of the contents of the premium note, need be given by the assured. Second. " Do insure against loss or damage bg fire." Taken literally, this amounts to a covenant that the property de- scribed in the policy shall not, during the term named, be irv- 326 OP INSURANCE. juredhyfire; but, as we have seen, the real agreement is, that if the property shall be injured by fire during such term^ the insured conformhig on his part to the terms and condi- tions of the contract, shall be paid his damages not exceed- ing the amount of the policy. The amount of the damage siistained by the assured, even when the facts are all agreed, is not always easily ascertained ; for example, a building in- sured stood iipon leased ground, with condition, in the lease, of renewal ; or, if that should be refused, removal of the building. A few days before the lease expired, it not hav- ing been then renewed, the biiilding was destroyed by fire. The evidence showed that the building was worth one thou- sand dollars as it stood, but if it were necessary to remove it, it was not worth over two hundred. The insurance was for eight hundred dollars. The policy agreed to pay the actual value of the property, at such time as it should be destroyed by fire. It was held, first, that the policy was not a valued policy, and that the assured could not recover a larger amount for the loss than the actual value of the building destroyed ; second, that such loss and damage was to be determined without reference to the condition of the lease, which might render it necessary to remove the building, whereby its value might be increased or diminished for the practical uses and enjoyment thereof by the insured; and that the intrinsic value of the building, as it stood at the time of the fire, was the true criterion for determining the amount, not exceeding the sum insured, which the assured ought to recover. Laurent vs. Chatham Fire Insurance Co.,1 Hall, (N. Y.) 41. So, it has been held that a mortgagor, whose equity of re- demption has been seized on execution, may recover the entire value of the building, not exceeding the sum insured. Where one acquired by deed of quitclaim the equity of re- demption of premises, on which the mortgagee had entered for condition broken, and insured for fifteen hundred dollars, which was stated in the policy to be not more than three- fourths the value of the property, — the land being estimated to be worth one thousand dollars, the buildings to be worth OF INSURANCE. 327 $2,050, and the mortgage amounting to $1,650, — and the insurance being taken with full knowledge of the property and of the mortgage ; it was held, that though three-fourths of the value of the premises, deducting the mortgage, — i. e. of the equity of redemption, — was much less than $1,500, the insured was entitled to recover the whole amount destroyed by fire, not exceeding the amount insured. Borden vs Hing- ham Mut. Ins. Co., 18 Pick., 523. This is a totally diiferent question from the one we have discussed, as to the right of a mortgagee to recover without the assignment of his debt, and depends upon the true con- struction of what is the insurable interest of a party ? The general idea at the present day is, that a policy of fire insur- ance is to be construed as a contract of indemnity against actual loss. Injury to the subject insured gives a right of action against the insurers, only upon proof that the party insured had such interest in its preservation, that its damage or destruction involves him in pecuniary loss. Marshall in his work on insurance says, the contract is one of " indemnity against losses and disadvantages arising from the destruction of the subject insured." Lord Hardwicke says, "indemnity is to be made to the person insured for the actual loss he may have sustained." The Supreme Court of Pennsylvania held, that it was not the property, but the beneficial interest in it, which is insured ; and that only tiie value of such interest can be recovered by the owner upon loss, the contract being one strictly of indemnity. Now it may well be, that a mort- gagor has an insurable interest to the extent of the whole value of the property, because, although it may be incum- bered to nearly or quite its full value, the incumbrance is as security for Ms debt, and any injury to the mortgaged estate will necessarily diminish its value as a security for such debt, and thus tend to throw the burden of payment personally upon the mortgagor. The insurable interest of a mortgagee is, as we have seen, limited to the amount due him upon the mortgage debt. The case cited from Massachusetts is one involving the question, what is the insurable interest of a purchaser of a mere equity of redemption, who is a stranger 328 OP INSURANCE. to both mortgagor and mortgagee and not personally liable for the mortgage debt ? An equity of redemption is, the right which equity gives to a mortgagor, or his assignee upon purchase or otherwise, of redeeming the mortgaged esta'te, after the appointed period has gone by for payment of the amount due the mortgagee. The actual value of this right can be determined only, by ascertaining whether the property is worth more and, if so, how much more, than the amount with which it is encum- bered. This, where the owner of the equity is not liable for payment of the indebtedness, should limit the amount of his recovery. At an auction sale of a distillery, encumbered to the amount of $24,000, the equity of redemption was bid in, for the sum of §300, by a person who was previously a stranger to the property and to the indebtedness. He pro- cured insurance in various companies upon his interest in the property, to the extent of about |20,000. During the life of the policies the property was totally destroyed by fire. Upon ascertaining the facts, the insurers proposed to pay the actual value of the premises above the encumbrances : the insured claimed a much larger amount. No authoritative decision of the question in that case has been had, but while the case of Borden vs. the Hingham Ins. Co. tends to give some color of authority to the claim made by the insured, the weight of judicial authority, and the established principles which govern the contract of fire insurance, seem to sustain the position taken by the insurers ; as, in a case where one made an as- signment of his property for the benefit of his creditors, it was held by the Supreme Court of Pennsylvania, in a learned opinion given by Chief Justice Gibson, that if the debtor had made it a condition of the assignment, that all the debts should^ he released, and should effect insurance of the possible surplus that might remain after paying all the debts, he would, in case of loss, be entitled to recover only the amount of such actual surplus ; that the assignment being conditioned upon a release by the creditors, and the creditors having actually released, the debtor would have no right of action on a prior insurance of the property assigned, unless it be shown af- OF INSURANCE. 329 firmatively, that a surplus will remain after the debts have been paid. It is manifest that the assignor in such case, however much he may desire that his creditors shall receive full payment, can have no beneficial pecuniary interest in the preservation of the property, except so far as the actual value of the same may be in excess of the debts released by such assignment. This doctrine also received the sanction of the Supreme Court of Massachusetts, in a case in which a debtor, among other effects, assigned a steamboat to creditors, who there- upon released him from his indebtedness to them. The Court held that, notwithstanding the conveyance, if it be iu the nature of a mortgage or trust, with a resulting trust to him, so that he has, in truth, an insurable interest in the property, he may, nevertheless, recover to the extent of his actual loss. " Now the transfer of this vessel with other pro- perty was in trust, to pay over the proceeds to certain credi- tors of the plaintiff. Had he remained indebted after mak- ing this assignment, and personally liable in case the property so transferred should be destroyed or lost, he would, undoubt- edly, be interested as before the assignment : but the assign- ment was upon condition, that the creditors for whose benefit it was made should release and discharge the debts, and they were so released and discharged. This changes the nature of the transaction, and takes away from the plaintiff all in- terest in the property ; for whether the vessel insured was lost or not he was equally discharged, and therefore could not suffer by the loss of the vessel : on the contrary, the loss would be to the creditors. But still, there was a possibility of interest remaining in the plaintiff ; because, by the assign- ment, the surplus, if any should remain after paying the debts, is to be paid to the plaintiff ; and it is contended that this possibility is an insurable interest, and so saves the pres- ent action. But we do not think such a bare contingency is an insurable interest, nor indeed can it appear that there is even a possibility, unless it be shown that the property con- veyed is of greater value than the debts, and that a discreet appropriation of it will leave a surplus. It may bo likened 330 OP INSURANCE. to an insurance on profits, in which, to entitle tlie insured to recover, he must, according to the Englisli doctrine, show, that liad the ship arrived safely, profits would have accrued. Certainly, nothing can be clearer tlian that the insured had no interest in the vessel after his assignment of her, unless there was property enough assigned to pay the debts and leave a surplus. Now, this does not appear in the present case, and, therefore, accordhig to the legal reasoning, there was no insurable interest : in short, it does not appear from the evidence reported, that there was even an ex2}ectation of any residuum after paying the debts. There being an abso- lute transfer of the property insured, in actual payment of debts, the plaintiff, to recover, must give prima facie evidence of an amount of property conveyed, sufficient to raise a reasonable presumption that, but for the loss of the vessel, there would be a surplus ; otherwise he fails to show any in- terest in the property. " If, therefore, the assignor can, under such an assignment, have an insurable interest only for the surplus shown affirm- atively to exist after the amount of the debts are deducted, it is clear that the purchaser of the equity, whatever it might be in the assignor, can take no greater rights than those dis- tinctly recognized in this case as existing in the assignor. Apply this principle, for instance, to the sale of a house on execution, or by an assignee of an insolvent debtor, subject to a mortgage to secure a debt for which the purchaser is not responsible ; a case where the purchaser simply buys the equity of redemption, taking the right to obtain absolute title to the house, on paying tlie amount due on the mortgages. The cases are clearly analogous. In the first case, there is a remaining interest in the assignor, represented by the dif- ference between the value of the vessel and the amounts of the debts that are first to be paid from the assigned property ; in the supposed case, the vendee takes no greater interest than the simple equity of redemption, represented by the difference between the value of the house and the mortgage debt. The interest of the vendee in the purchased premises is not commensurate with the interest of the mortgagor, for OP INSURANCE. 331 he is not responsible for the mortgage debt ; while the mort- gagor is liable, and may be compelled to liquidate the debt from other resources, iu case of the destruction of the in- sured premises. If, then, the assignor with release of debts can have no insurable interest in the premises beyond the ac- tual surplus, is there any greater interest in the purchaser of the mere right to redeem ? If such purchaser were to sell the property, it must, of course, be subject to the incum- brances, and the value of his interest must be measured by the price which the property wUl bring beyond the incum- brances." The excess of value over the incumbrances is, then, the real beneficial interest. This view is sustained by the authorities above referred to, and by elementary writers on the law of fire insurance. Phillips says, the borrower on bottomry or respondentia may have an insurable interest in the property pledged, no less than a mortgagor ; but with this distinction, that the mortgagor remains liable for the whole loss upon the goods ; if they are lost, no part of his debt is cancelled ; whereas, if the hypothecated ship or goods are lost, the bor- rower is discharged from his debt. If, therefore, goods are hypothecated for their full value, the borrower is not inter- ested for their safety, as far as the risk is assumed by the lender ; for, if they are saved, they go to satisfy the debt ; if they are lost by the risks within the hypothecation, he is dis- charged from the debt. He is, accordingly, interested only so far as the value of the property exceeds the amount for which it is pledged. He also cites the case of the purchase of a vessel, subject to a iDottomry bond, for which the purchaser was not liable ; in which it was held, that the purchaser of property, already subject to a lien or mortgage for a debt exceeding its value, has no insurable interest therein, unless he assumes the pay- ment of the debt; clearly sustaining the proposition, that the insurable interest in such cases, if it exists at all, is to be measured by the excess of value in the subject insured over the incumbrances. 832 OP INSURANCE. Third. " Aiad said company hereby agree to make good, unto the said assured," &c., " all such immediate loss or dam- age, not exceeding in amount the sum insured." What is meant by the expression, " agree to make good," is suiBciently explained in the foregoing notes. Another question arises upon this clause, to wit : What loss or dam- age is insured against? Most policies contain the word, " immediate," which clearly, when used, qualifies and limits the damage, if it is not already without its use limited by the general principles, which regulate and interpret the contract. This question arose in an early case in which the property insiued was, the " interest of W. in the ship ." It was there held, that the insured could not recover for loss of cus- tom or profits while the vessel was being repaired. The general principle is clearly established, that the assur- ers are bound to adjust a loss upon the principle of replacing the assured, as near as may be, in the situation they were in before the fire : but this has never been understood to extend to the profits or fruits which the latter was drawing, or might have received from the subject insured. Under a policy of insurance upon a house, with condition that, in case of loss, the assurer may either reinstate the building, or pay the amount of the loss, as soon as proved ; rent, for the period occupied in re-building or repairing, can- not be recovered as part of the indemnity. Such rent forms a distinct, insurable interest. Leonarda vs. Phojnix Ins. Co. of London, 2 Rob. (La.), 131. Insurance against fire does not cover consequential dam- ages, arising from loss of occupancy while the buildings are under repair, nor loss of profits which might have been made by the occupant by his trade, nor wages of servants which occupant had to pay while, in consequence of the fire, he could not employ them, nor for the interruption or destruc- tion of his busijiess carried on in a building destroyed, nor for gains or profits which were morally certain to enure to him if it had remained uninjured till the expiration of his policy. OF INSURANCE. 833 Fourth. "As shall happen hyfire." An ordinary insurance against damage hy fire, in the ab- sence of special stipulations and restrictions as to this par- ticular matter, would include damage caused by fire from lightning, or from the explosion of gunpowder, as well as fire by ordinary ignition and burning. It would not in- clude destruction of the subject insured by the electric shock alone, or by its being torn and rent in pieces by lightning without being burnt, nor for a similar destruction of the thing insured by the explosion of gunpowder without char- ring or burning. Babcock vs. Montgomery County Mut. Ins. Co., 4 Comst., 326. Where, by the tei-ms of a fire policy, the company are not to be liable for losses occasioned by explosion, loss caused by fire which is the result of an explosion is also excluded. St. John vs. American M. P. & M. Ins. Co., 1 Kern., 516. Montgomery vs. Firemen's Ins. Co., 16 B. Mon., 427. Loss accruing, partly from the explosion and partly from the combustion of gunpowder, is covered by the clause in the policy insuring against loss or damage by fire. A corpora- tion authorized by its charter to insure against fire whether caused by " lightning, accident or by any other means," can- not insure against damage by lightning not resulting in fire, although their by-laws provide for their so doing. Such an insm-ance would be beyond their corporate authority. An- drews vs. Union Mut. Ins. Co., 37 Me., 256. See also as to same point, Kenniston vs. Merrimac Mut. Ins. Co., 14 N. H., 341. "Such damage as shall happen by _^re " means, damage caused by ignition or actual combustion, and not merely by excessive heat. Thiis, in the case of Austin vs. Drew, 6 Taunt., 436, the owners of a sugar-house had insured their stock, which was damaged by the intense heat of a chimney running through the various floors, occasioned by the negli- gent omission of their servant to open the register at the top when the fire was lighted. This register was usually closed at night, for the purpose of retaining the heat in the chimney and warming the floors, which in the process of re- 834 OP INSURANCE. fining required to be kept at a high temperature. Upon the occasion in question, no part of the building or property was set on fire, but the property was injured by the extraordinary heat, and the court held this not to be a loss within the terms of the policy, as there had been no ignition. The question arose in a case in Pennsylvania, (Hillier vs. Alleghany Mut. Ins. Co., 3 Pa. State Eep., 470,) whether the injury- sustained by the assured in the removal of his goods was a loss within the policy ; his house not having been on fire, and his goods not having been directly injured by fire. There was an extraordinary conflagration, the fourth house from him was at one time on fire, (though it was afterward extinguished,) and there was reasonable ground to apprehend that his house would be consumed. Fire was, therefore, the remote cause of the injury, but could not properly be deemed the proximate cause, as the property was not on fire, nor the house which contained it, neither were the goods injured by endeavors to extinguish -the fire, or to save them from it. The insurance was not against apprehensions of fire, and the injury sustained originated not from necessity to save them from impending fire, but from anticipation of damage from it. In that case, Chief Justice Gibson says, " insurers are answerable for direct and immediate, not for consequential and remote losses, from a peril insured against. On no other principle, than that the character of the loss is determinable by the proximate cause of it, could the insurers have been liable for the loss of a Dutch ship, mentioned in Marshall on Insurance, (p. 421,) as having been bm'nt h^ the Spaniards at Majorca, in consequence of the apprehension that the crew were infected with the plague. An inversion of the rule would have made them liable, only in case the plague had been one of the perils mentioned in the policy. It would also have protected the insurers in the Patapsco Ins. Co., vs. Coulter, (3 Peters, 222,) from liability, for the loss of a ship burnt by the negligence of the captain and crew. But the converse of the rule, which charges the insurers with a loss of which the particular peril is the proximate cause, exempts them where it is the remote one ; and this rule is a part of the general law of insurance." OF INSURANCE. 335 Fifth. " From the twelfth day of March, 1869, at noon, to the twelfth day of March, 1870, at noon" Questions sometimes arise, when a fire happens within a few minutes before or after the expiration of tlie time limited as the termination of the risk, whether tlie loss is cu\'ered by the policy. First, whether it is within the time named. Suppose the fire is first discovered from ten to thirty min- utes after twelve o'clock noon of the twelfth day of ^aroh, 1870. The insured clainjig, that the fire had been burning a longer time than the few minutes which have elapsed since tlie expiration of the policy. This the insurer denies. In many cases positive evidence cannot be secured. This raises a question of fact, which must be decided by the jury, upon such evidence as is brought before them. Again, suppose by the common time of a manufacturing village the fire actually commenced at ten minutes past noon ; the insured proves that, for the convenience of the manufacturing establish- ments, their time is actually twenty minutes faster than the time solar time, and that the general time of the villanc for public convenience has been made to conform to that' stand- ard. Does the time when a policy begins to run and expires conform to the true solar time, or does the custom of the place and the time kept according to that custom go^ ern ? This question has arisen more than once, but I am not aware that it has been authoritatively decided. In the absence of precedent, it is, perhaps, safe to assume, that while, prima facie, the time of the place would be presumed to govern the parties, as to this contract as well as the daily labor and other affairs of the place, the insured would be allowed to prove, by any proper and satisfactory evidence, that, as to this contract, the inception and expiration of the risk were to be governed by the true solar time. Again, suppose the fire actually commences at ten minutes before twelve, and the building is totally destroyed at four o'clock in the after- noon. At the expiration of the policy the damage was less than $100, but by the continuance of the same fire the dam- age at four o'clock was $20,000. Are the insurers liable for the whole amount, or is their liability limited to the $100 ? 836 OF INSURANCE. Sixth. " According to the actual cash value at the time of the loss." The analogy between Fire and Marine Insurance is in many respects quite complete ; for example, the obligation of the insured to communicate material facts, the necessity of his having an interest, and the nature of the interest which may be insured ; but the difference between the mode of adjust- ment and payment of damages, in the event of loss, is obvi- ous and distinct. In fire policies, -the assured recovers the whole " actual cash value at the time of the loss," if within the amount insured, without reference to the proportion be- tween the amount insured and the total value of the property at risk; whereas, in marine policies, the insurer pays only such .a proportion of the actual loss as the sum insured bears to the property at risk. For example, on fire policies, if the sum insured be 84,000, on property worth $20,000, and the assured sustains an ac- tual loss on the whole, he recovers the whole 14,000. But in a similar case in a marine policy, he would recover one- fifth only, or $800 ; being the proportion which the sum in- sured bears to the value at risk ; the assm'ed himself bearing the other four-fifths of the risk. In marine insurance, there- fore, the assured is, as will be seen from the above example, a co-insurer of his own property, he bearing of every loss (however small) which may occur, such proportion as the value of the property beyond the insurance bears to the amount of the insurance. While, in fire insurance, the pay- ment is of the whole actual loss sustained on the whole prop- erty at risk, not exceeding of course the svim insured, with- out regard to any apportionment between the sum insured and the property at risk. But it is said, that in England, in consequence of the numerous fires which at one time had taken place in the agricultural and manufacturing districts, by the acts of in- cendiaries, the offices generally adopted an average clause, similar to that in marine policies, by which where one in- sures property, collectively of greater value than the amount insured, he shall only recover in the proportion, which the OP INSURANCE. 337 whole value bears to the part insured. As an encouragment to tlic insured, to use active diligence in the effort to save property after a fire has broken out, it is not unusual in that country to propose in the policy, that the office will pay all expenses incurred in the removal of goods in case of fire. Insurance companies are liable for all losses by fire, and also for those which are the immediate consequence or result of fire or burning ; and, therefore, they would be liable where goods are injui'ed by the fire engines in putting out a fire, when the building containing the goods is actually on fire, or by the removal of the goods under the same circumstances, although the goods may not have been burnt, but were merely injured by water, or by breaking, in the act of saving them from fire. This is on the ground that the fire is the real cause of the injury, and, by a liberal construction of the pol- icy, the goods may be said to have suffered damage by means of fire ; and it is the general custom of insurers to pay such losses. The goods must be removed or guarded with reas- onable prudence and care, and they may be so carelessly re- moved and so wantonly and unnecessarily exposed, as to relieve the insurance company from liability for their injury. In the case of Hillier v». Alleghany Comity Mut. Fire Ins. Co., 8 Pa. State R., 470, the question was, whether the injury sustained by the assured in the removal of his goods was a loss within the policy ; Ms house not having been on fire, and none of his goods having been directly injured by the fire, but the fourth house from him having been on fire, and the removal having been made on account of a reasonable appre- hension that his house would be reached and consumed in the extraordinary and extensive conflagration. It was here held by the court, that the insurers were not liable ; and remark, that where the peril insured against is fire, the instru- ment of destruction must be fire. But in that case, not only were the goods not touched by the fire, but the building which contained them was not reached, and they were not injured in the effort to extinguish the fire, or to save them from immediate danger, but in the removal of them under an apprehension that they might be reached by the flames, which were destroying a house in the same block. (See ante, p. 834.) 22 338 OP INSURANCE. The court also intimate in that case, that if the building which contained the goods had been reached and damaged by the fire, or the goods injured by removal while it was on fire, or in the effort to extinguish the fire, the loss would have been within the policy, which could not be if the instrument of destruction must, in all cases and literally, be fire itself. Damage from water, thrown upon goods to extinguish a fire, clearly is not an injury by ignition, and yet in all cases insurance against fire has been held to extend to such dam- age. Where goods insured were destroyed by the hloiving up of the building, by order of the city authorities, to arrest the progress of the great fire in New York, and to save it and others from being burned, the insurers were held liable for the loss, on the ground that fire was the real cause. In that case, the late learned and eminent Judge Bronson of New York, said, "it matters not how the flame was kindled, — whether it be the result of accident or design, — ^whether the torch be applied by the honest magistrate, or the wicked in- cendiary, — whether the purpose was to save a city, as at New York, or a country, as at Moscow, — the loss is equally within the terms of the contract. Where a fire happens in the neighborhood of the assured and he, in good faith and acting prudently, whether with or without the presence and approval of the underwriters or their agents, procure blankets and spreads them on the out- side of his building, by which means the building and its contents are preserved, it is usual for the insurers to pay for the damage done to the blankets, &c., and the assured is, equitably if not legally, entitled to recover. Seventh. " To be paid sixty days after due notice and proofs, Notice of loss should be given immediately after the burn- ing ; this may be entirely informal, the only thing essential is, that it communicate information to the company that the property insured by them has been damaged or destroyed by fire. The more formal proof should follow as soon as with reasonable diligence it can be prepared. OP INSURANCE. 339 Wlierc a policy provides that payment will lie made in sixty days after due notice and proofs of loss, an action will lie within sixty days if the insurers refuse to adjust the loss. Eighth. " In case differences shall arise, touching any loss or damage after proof thereof has been received in due form, the matter shall at the written request of either party he submitted to arbitrators indifferently chosen, whose aivard in writing shall be binding on the parties, as to the amount of such loss or dam- age, but shall not decide the liability of the company under this policy.'''' It will be seen that the above clause expressly limits the power of the arbitrators, to the question of the amount of loss or damage. Such a clause in a policy of insurance can- not take away jurisdiction from the ordinary courts of law ha\-ing cognizance of the matter, and would not bar an action on the policy to recover a loss, unless such arbitra- tion has been actually had. Perhaps the only effect of such a clause would be, to enable a party requesting such arbitra- tion, and being met by a refusal, to maintain an action for damages, if he could show that he had sustained injury thereby. That such agreements cannot oust the jurisdiction of the court was held in the early case of Kill vs. Hollister, 1 Wilson, 129. See also Scott vs. Avery, 20 Law and Equity, 327, Roper vs. Leadon, 1 Ell. & Ell. Q. B., 825, (102 Eng. C. L.) If an arbitration has been had, and an award actually made, it will be a bar to an action ; and, perhaps, if the par- ties have submitted their differences to arbitration and a ref- erence be actually pending, it would also be a bar. Ninth." It shall be optional with the Company to repair, rebuild, ^c, with other of like kind and quality, ivithin rea- sonable time." Where the policy reserves the privilege of replacing prop- erty destroyed within a reasonable time, it was held, in an action thereupon, that the question, whether certain ma- chinery insured had been repaired within a reasonable time, was a question for the jury and not for the court; 340 OF INSURANCE. although the facts as to the lengtli of the delay and the rea- sons therefor were undisputed. Haskuis vs. Hamilton Mut. Ins. Co., 5 Gray, 132. The question has been raised and discussed, whether when an insured building has been totally destroyed by fire, and a new one has been erected by the insurers, there is to be any deduction made from the expense of rebuilding in fa- vor of the insurer, if the new one is more durable than the old would have been and, for the same purposes, more valua- ble. The rule as laid down by Professor Greenleaf (2 Greenleaf Ev. 407), is, that the actual loss is to be ascer- tained by the expense of restoring the 'pro'perty as it was he- fore, without any deduction for difference in value between old and new materials, or any regard to the cost of the prop- erty. The leading case cited by him is Yance vs. Foster, 1 Irish Circuit Cases, 51, in which the court seemed to lay down a different rule, stating it thus: "the jury are to say what state of repair the machinery was in, wliat it would cost to replace it by new machinery, and how much better (if at all) the mill in which the machinery was placed would be with the new machinery than it was at the time of the fire; and the difference is to be deducted from the entire expense of placing there such new machinery. If the result desired be, to secure an exact indemnity, this would seem to be the more accurate rule, and in the case of Brinley vs. Natl. Ins. Co., 11, Met. R., 195, the Supreme Court of Massachusetts say, "that the rule, requiring a deduction of the difference between new and old, should be applied in all cases, where the cost of repairs is one of the elements by which the jury are to estimate the actual loss, and seems to be founded on the principles of justice, as it will give to the assured a full indemnity and no more, to which he is entitled by the con- tract ;" and they say, " by the rule contended for by the plaintiff's counsel, the assured in most cases would recover more than an indemnity, and much more when the building insured is dilapidated and much out of repair. Such rule is not supported by any principle of justice, nor by the author- ity of any adjudged case. It is founded on an erroneous construction of the contract. It supposes that the insurers OP INSURANCE. 341 are bound to repair the building, or to pay the expenses of tlie repairs. But no such obligation is imposed upon them by the policy ; they have the privilege to make the requisite repairs, if they see fit, to protect themselves against the re- covery of excessive damages, or for any other reason. But, if they elect not to make the repairs, they are liable to pay only a fair indemnity for the loss : but whatever may be the rule, vthen the building insured is partially injured by the peril insured against, it has no application to cases like the present, where the building is totally destroyed and is to be replaced by a new one. The rule of damages in marine pol- icies would not apply to a case where the ship had been to- tally destroyed. In the present case, the building was de- stroyed by fire and a new building was erected on a different plan, so that the cost of the new building could not be cer- tainly ascertained. If the rule laid down in Vance vs. Fos- ter were applied, the party must ascertain by estimates and the opinion of witnesses the amount of the expenses of a new building, and they must estimate the value of the old building in order to ascertain the difference, if any there be, between the new and the old. We can perceive no use in re- quiring this double estimate, for where the plaintiff is enti- tled to recover only the amount of the value of the building destroyed, the estimate of the cost of the new building is useless. We are, therefore, of the opinion, that there is no rule of damages applicable to the present case, and that in all cases where no rule of damages is established by law, the jury are to decide upon the question, and that to this decis- ion there can be no legal exception. The instructions were conformable to these principles, except in one particular. The jury were instructed, that no deduction was to be made for the expense of repairing or rebuilding the store insured, although the new building might be more durable than the old would have been, and for some purposes more valuable. In this respect, we think, tlie jury were misdirected." Where a policy gives to the assurer the right of re-instate- ment, in case of loss, at his option, and he elects, after a loss, to re-instate, and is proceeding to do so, and the municipal 342 OP INSUEANCE. authorities cause the building to be taken do^sra, as danger- ous : the assurer is not thereby relieved from liability, al- though the dangerous condition of the building was not occasioned by the fire. Ha\'ing elected to re-instate, he must either do it, or pay damages for not doing it. Brown vs. Koyal Ins. Co., 1 Ell. & Ell. Q. B. 853, (102 Eng. C. L.) A wooden building, situated within the fire- limits of De- troit, was damaged by fire, and could not be repaired with- out the consent of the common council, which was refused. The building was insured for $2000, and the policy contained a clause that, in case of loss or damage to the property, it should be optional with the company to rebuild or repair the building within a reasonable time. The cost of repairing would be much less than the amount of the insurance, but without leave to repair, the building, which before the fire was worth |4000, would be worth less than f 100. It was held, that the insured was entitled to the whole insui'ance, and was not limited to such sum as would cover the cost of the repairs. Brady vs. Northwestern Ins. Co., 11 Mich., 425. The assent by an insurance company to an assignment, after the loss, directing the amount to be paid to the mort- gagee of the assured, was held to be a mere assent to the transfer of the claim of the assured under the policy, not af- fecting the right of the underwriters to rebuild, or to pay the amount of the loss in money, at their option. It was contended, that the assent of the underwriters to such as- signment was a waiver by them of their right to rebuild, and bound them to pay the loss in money, but the court held the contrary, Tolman vs. Manufacturers Ins. Co., 1 Cush., 73. In Trull vs. the Roxbury Mut. Fire Ins. Co., 3 Cush.,R. 263, the action was brought, to recover damages for loss by fire on two buildings belonging to the plaintiff, separately in- sured by the defendants for one thousand dollars each, for the term of seven years. The insured, according to the charter and regulations of the company and conformably to the usual course of proceedings of mutual insurance offices, paid the insurers a cash premium on taking the policy, and at the same time gave his deposit note, by which he became OF INSURANCE. 343 liable to pay such assessments as should he laid upon him by the president and directors of the company. Two stipula- tions in the policy were regarded as material ; the first was, " the company agree to pay all losses which shall happen to the buildings within the term, not exceeding the amount in- sured thereon." The other was that, " in case of loss the company may replace or repair within a reasonable time." After the policy attached, the buildings were both burned, one being entirely consumed, and the other burned down, but some of the sills and other timbers belonging to it were not wholly consumed. The insured claimed for a total loss, but the company elected to repair and replace the buildings, which they did within a reasonable time ; one at a cost of 8800, and the other at a cost of $650. Subsequently, but within the seven years, the new buildings took fire and were wholly consumed, whereupon, after due notice, proof, de- mand and refusal, action was brought. The defendants con- tended, that when the first buildings were wholly consumed, and wholly replaced or rebuilt at their expense, this was equivalent to a total loss and payment thereof; that although the policy was not surrendered or cancelled, it was at an end, by complete performance on their part ; and, that although the sum paid by them was somewhat less than the sum in- sured, yet it was complete indemnity, by placing the build- ings in as good condition as they were before tlie fire, and was, therefore, a fulfilment of their contract of indemnity. But the Court, by Shaw C. J., say, "this is a mistaken view of the nature of the contract, and of the rights of the as- sured, arising, perhaps, from a supposed analogy between this contract and that of a policy of marine insurance. " The contract between a mutual insurance company and a party insured by it is somewhat peculiar. The assured is a member of the company, so long as tlie policy exists, and the insurance is for a term of time, usually five or seven years. He pays a sum in the outset as a premium and de- posit, estimated at a rate somewhat more than sufficient to pay probable current losses, and with a right in tlie insured to a pro rata return at the end of the time, if upon a state- 844 OF INSURANCE ment of an account of all the losses, wliicli have occurred during the whole of such time, the premium and deposit have not been absorbed in the payment of losses. He also makes himself liable, to pay assessments to a limited amount, in order to pay losses to other members, should any occur within the time, which the sums received for premiums and deposit might not be sufficient to cover. Such being the contract between the parties, there seems to be no groiuid to hold, that it is terminated by the payment of any loss. The assured, by his deposit note, is liable to assessment according to the terms of the policy, during the whole term; and the land on which the buildings stand is subject to a lien for its security. Were it not for the express limitation in the poli- cy, as to the amount of the sum insured, we do not see why the company might not be liable for successive losses. The distinction between the contract of fire insurance and that of marine insurance, and the mode of adjustment and satis- faction, is marked and obvious. In fire policies, tlie assured recovers the whole loss, if within the amomit insured, with- out regard to the proportion between the amount insured and the value of the property at risk ; whereas, in marine poli- cies the insurer pays only such a proportion of the actual loss, as the sum insured bears to the value of the property at risk. For instance, on fire policies, if the sum insured be $2000, on property worth |10,000, and the assured sustains an ac- tual loss on the whole, he recovers the whole f2000. But in a like case on a marine policy, he would recover one fifth only, or f 400 ; being the proportion which the sum insured bears to the value at risk ; the assured himself bearing the other four fifths of the risk. The result is, that every set- tlement of a loss by fire is in the nature of an adjustment of a partial loss, although it may amount to the whole sum insured. It is the payment of the whole actual loss sus- tained, on the whole property at risk, not exceeding the sum insured, without regard to any apportionment between the sum insured and the property at risk, or to any abandonment, or technical or constructive loss or salvage. We can, tliere- foro, perceive no analogy between the rebuilding of the sta- OF INSUEANCE. 345 bles, though it fully replaced the former structures, and the payment of a total loss. It was clearly not to the amount insured; and it is not competent for the defendants to say, that it was over valued ; the value having been agreed on by the parties. " In the absence of frand, — such fraud as woiild invalidate the policy, — the valuation is conclusive on both parties. The sum insured on each building being $1000, the assured is en- titled to indemnity thereon to the amount of 11000, and this was not exhausted by paying the several sums of $800 and $650 towards rebuilding, any more than it would have been by paying the plaintiff the like sum of money. "The court are, therefore, of opinion, that he is entitled to judgment for $550, being the difference between the sums in- sured and the sums paid for former losses on the two build- ings." Where premises were insured in two separate companies for distinct sums, and each contract of insurance contained the same stipulations on the subject of electing to rebuild, and both companies united in notifying the insured of their election to rebuild after the loss: it was held, that the in- sured might maintain an action against such companies, jointly or severally, for a breach of the contract to rebuild. Morrill vs. Irving Fire Ins. Co., 33 N. Y., 429. A policy of insurance contained a condition to the effect, that it was optional with the insurance company in case of loss to rebuild or repair the building within a reasonable time, giving notice of their intention to do so witliin thirty days after service of the preliminary proofs. Immediately after a loss by fire, the plaintiff laid a new foundation and proceeded to erect a new brick building. Within thirty days, the defendants gave notice that they availed themselves of the option, and would rebuild the property. It was held, that, under these circumstances, the contract became sub- stantially a building contract, and an action on the policy to recover the loss would not be sustained. Beals vs. Home Ins. Co., 36 N. Y., 522. Where a company should elect to rebuild, and in pursu- 346 OF INSURANCE. ance of such election should replace a building or other prop- erty, it is not probable that any court would authorize an al- lowance in favor of the company, for the difference between new and old, or permit them to leave the building unfinished for such reason. The effect of the decision in Massachusetts, (11 Metcalf, 195), would be narrower than that, and would, probably, be deemed a mere discussion of the effect of the fact, that new is really better and more valuable than old, in connection with the reservation of optional right to rebuild, upon the amount of money damages due in a case in which the company elect to f?at/, and the question is, what amount should he paid? Whether, when the terms of a policy au- thorize the underwriters, within a limited time after proof of loss, to elect to replace the property lost or damaged by the fire, they are entitled to an injunction to restrain the assured from removing or disposing of his goods, until after the ex- piration of the time limited, in order to enable the under- writers to take an inventory, i OP INSURANCE. called upon for copies of all bills and invoices, which they signified their willingness to furnish, and within a few days the luiderwriters received papers purporting to be copies of bills and invoices covering a much larger amount than was claimed to have been lost. The company, being still unsat- isfied, sent one of its officers to New York, with directions to visit the stores from which the bills and invoices were pro- cured, and compare them with the books of the dealers. The first dealer called upon recognized the printed portion of the invoice as being from his store, but, upon examination of his books and enquiry among his clerks, informed the agent of the underwriters that he had never sold the assured any goods, and that the pretended copy was manufactured by the assured. This fact was communicated to the assured, and tl\e claim, although large, was never pressed. Thirty-fourth. "Damage to property not totally destroyed shall be appraised by disinterested men, mutually chosen by the assured and the company, and the company reserves the right to take the articles damaged at their appraised value." Most policies of insurance contain a clause similar to the above ; but it can not be enforced against the will of either party. The courts are estabhshed as the special tribunal, to which parties, having between them matters in dispute, which in- volve their pecuniary interests, may always appeal for adju- dication and relief ; and the theory of the law is, that they are better qualified to do justice between litigants, than any tribunal Avhich can be constituted by the parties ; and therefore, while, if the parties proceed under such a stipiila- tion to a hearing and award, the award when made is binding and conclusive upon them; the mere stipulation so to refer, in whatever form it may be put, can not take away the juris- diction of the regular judicial tribunal. The stipulation is, therefore, of small importance ; for if the parties mutually consent so to refer without it, they may do so, and an award would be equally binding ; while if they do not so consent and voluntarily proceed, the authority and jurisdiction of the OF INSURANCE. 465 courts overrides all such stipulations, and nothing less than an express act of the legislature can abridge their judicial cognizance. An express covenant, under seal and duly executed hy both parties, would be equally ineffectual, it being against the policy of the law, to compel parties to litigate their disputes before any otlier tribunal than the courts duly constituted under the government, and vested with ample powers to com- pel the attendance of witnesses and parties, and to enforce their decrees and decisions. Whether covenants mutually entered into, agreeing to refer a specified matter, may not bo so drawn as to expose the party refusing to au action for damages, is not the question in hand: we now merely say, that it can not be set up in bar of an action. As we have stated, an award actually made will be a bar; and if tlie. parties have submitted their differences to the arbi- trators, and the reference be actually pending, it would proba- bly be treated as a bar to an action, or, at least, it would be likely to induce the courts to postpone and continue an ac- tion till the award could be made and pleaded in bar to its further progress. Angell on Life and Fire Insurance, ('Sec- tion 354, and cases referred to in notes. In the case of Kill vs. HoUister, 1 Wilson, 129 it was held, that the agreement of the parties as a condition of the policy could not oust the court, but it was intimated that if tliere had been a reference, or if one was pending, it might be a bar. See also Scott vs. Phoenix Assurance^ Company, 1 Stuart, Lower Canada, 152, and Scott vs. Averj, 20 Law and Equity,. 327. Where a policy contained this clause, and the underwriters denied all liability, the insured, claiming that the stipulation only required a reference to fix the amount of damage and did not apply where the defence was, that the insured had no claim, brought an action, which was sustained. Goldstone vs. Osborne, 2, C. and Payne, 550. In a case in Louisiana, it was held that if, when the claim was made by the insured, the defendants had offered to refer to arbitrators, the insured would have been bound to accept ; but the underwriters hav- 30 466 OF INSURANCE. ing absolutely refused to pay, without claiming the benefit of the condition, they must be deemed to have waived it. Millandon vs. Atlantic Ins. Co., 8 La., 657. In Roper vs. Lendon, 1 Ell. & Ell., 825, it was held, that such a condition would not bar an action, unless the reference had been actually had. The directors of an incorporated insurance company have the legal charge and control of its affairs and business", under most charters, and a submission to arbitration, executed by their authority, cannot be revoked by the president and sec- retary, although the charter should authorize such officers to carry on the business, without the presence of the board, sub- ject to its regulations^ &c. Notice to appear before referees is of no consequence, if the parties actually are present at the hearing. Madison Ins. Co. vs. Griffin, 3 Ind., 277. If a policy is " payable in case of loss to a mortgagee," it is, in effect, a legal assignment to him duly assented to by thfi company, and all proceedings for remedy, by award or otherwise, must be with his consent and approval, or he will not be bound. Brown vs. Ins. Companies, 5 R. I., 394. Upon this general subject of enforcement of a condition to refer, Philiips, (2 Phillips on Insurance, p. 579, sec. 1941), says, " marine policies usually contain an agreement to settle all disputes by .arbitration ; or, in other words, that they will mutually constitute a committee that shall have jurisdiction of tlie policy," but adds, " that he is not aware of any re- ported decree or judgment enforcing this stipulation." Thirty-fifth. " When personal property is damaged, the as- sured shall forthwith cause it to he put in the best order possible, properly arranged, and make an inventory thereof, naming the quantity and cost of each article, and upon each article the dam- age shall be separately appraised, and the detailed report of the appraisers in writing shall form a part of the proofs hereby required, one-half of the appraisers fees to be paid by the com- pany." This is a detail of the direction of the clause last com- OF INSURANCE. 467 montcd upon ; where the articles damaged are personal pro- perty. Of course, the remarks made, as to the effect of the clause if either party shall after the loss refuse to conform to it, apply eqiially here. The requirement, that the property be forthwith put " in the best order possible," does not require the assured to use means to restore it to its condition before the fire ; as where the goods were shirts, bosoms and collars, most of which were injured only by water or by handling, it is not necessary to have them relaundried, but only that pro- per and prudent steps be taken to prevent its final destruc- tion or further deterioration, and to put it in a condition to be fairly examined. Hoffman vs. JEtna Fire Ins. Co., 32 New York, 405. If, in pursuance of this clause, a reference is had and de- tailed report and award are furnished, with other proofs as required, the insured may rely upon this in an action to en- force payment, as fixing the amount of the damage. Thirty-sixth. " In case of loss on property held in trust or on commission, or if the interest of the assured be other than the entire and sole ownership, the names of the respective otrners shall be set forth, with their respective interests therein, certified by them." We have seen that, in the absence of any special provision, one holding goods in trust as factor, commission merchant or otherwise, may insure and recover the full value of the goods. This provision does not necessarily interfere with the question, whether the party may recover the full value or not, but is designed to secure to the underwriters the certifi- cate of each party interested in the propei'ty, with the amount of his interest therein, as a protection against fraud by double insurance or otherwise. The provision, that pro- perty held in trust or on commission must be insured as such, otherwise the policy will not cover it, includes everything in which the insured has only a qualified interest with the pos- session, while the balance of the ownership is in other per- sons. Turner vs. Stetts, 28 Alabama, 420. The same construction would, undoubtedly, be given to 468 OP INSURANCE. this clause, whether stated in the precise language given above, or, as is frequently the case in policies, in words less general but conveying substantially the same ideas. Under a policy in the plaintiff's own name, it has always been held that goods in trust might be included, unless some special provision of the policy requires that the interest of the party, if less than the entire ownership, be particularly described. The question, what may be recovered on behalf of the in- sured for loss of goods held in trust or on commission or otherwise not entirely owned by him, has been discussed in the following cases : Siter vs. Mores, 13 Penn, St., 218 ; DeForrest vs. Fulton Fire Ins. Co., 1 Hall, N. Y., 84 ; Still- well vs. Staples, 19 New York, 401 ; London Eailway Co. vs. Glynn, 1 Ell. & Ell., 652; Parks vs. General Interest Ass. Co., 5 Pick., 34 ; Brichta vs. Newport La Fayette Ins. Co., 2 Hall, N. Y., 372 ; Lee vs. Howard Fire Lis. Co., 11 Cush., 324 ; Waters vs. Monarch Fire & Life Ins. Co., 5 Ell. & Black., 870 ; Ayers vs. Hartford Fire Ins. Co., 17 Iowa, 176; Baltimore Fire Ins. Co. vs. Loney, 20 Md., 20. Thirty-seventh. " If this policy is made payable in case of loss to a third party, or held as collateral security, the proofs of loss shall be made by the party originally insured,' unless there has been an actual sale of the property insured." Where a policy is made payable in case of loss to a third party, or assigned with the assent of the underwriters, action for loss may ordinarily be brought in the name of such third party, or of such assignee with consent, though the decisions ^ are not uniform. The design of this provision is, to secure proofs from the original insured, with his certificate of his interest in the property and of the other facts required to be stated, in all cases in which he still remains interested in the subject insured. It is not always easy, to determine in whose name a suit should be brought on a policy of insurance. In Jessell vs. Williamsburgh, 3 Hill, N. Y., 88, it was held, that an assignee could not recover in his own name, although the company consented to the assignment, unless there was a stipulation OP INSURANCE. 469 in the policy to that effect. In Ferris vs. North American Fire Ins. Co., 1 Hill, N. Y., 71, which was a case of the as- signment of the policy and of the property insured under provision of an act of incorporation, it was held, that the action should be brought in the name of the assignee. In the case of Mann vs. Herkimer County Mut. Ins. Co., 4 Hill, N. y., 189, where the charter of the insurers provided, that upon the alienation of property insured the alienee might have the policy confirmed to him and upon the ])erformauce of certain conditions should have all the rights and privileges of the origijxal insured, it was held that, after compliance with the requirements of the charter, an action must be brought in the name of the assignee. In Conover vs. Mutual Ins. Co., 1 Comstock, New York, 290, it was held that, where a policy had been assigned to a mortgagee with consent of the company, action must be brought in the name of the oi'iginal insured, but if the pro- perty liad been absolutely sold, and the policy assigned to the purchaser, in conformity with the requirements of de- fendants charter, giving to the assignee all the rights and privileges of the original insured, the action must be in the name of the assignee. In the case, in the same volume, of Bodle vs. Chenango County Mut. Ins. Co., the intei'csts of different parties in the policy assented to and recognized by the company, were such and so mixed, that the court held that no action at law could be maintained by either party, or by them jointly, and tliat the only form of relief to the as- sured would be by bill in equity, to which all persons inter- ested should be made parties. The Supreme Court of Mas- sachusetts, in recent cases have held, that where a party had sold the premises insured, and assigned the policy, with the consent of the insurers, to the purchaser, and had the policy reassigned to himself, as collateral to a mortgage taken by him to secure the purchase money, with consent of the un- derwriters, he could maintain an action on it in his own name. Kingsley vs. New England Mutual Insurance Co., 8 Cush., 393. So, where a policy had been assigned as security with con- 470 OF INSURANCE. seut of the company, the same court held that the assignee might sue in his own name. Wlicre the direction, " pay the within in case of loss " to a party named, was endorsed on a policy of insurance and as- sented to by the company, the Supreme Court of Massachu- setts held, that if such party have an interest in the property, and if tlie company is liable to pay the loss to any one, he may recover it in his own name, upon a proper count, setting forth the express promise of the company to pay the loss to him. Barrett vs. Union Mut. Fire Ins. Co., 7 Cush., 175 ; Lowell vs. Middlesex Fire Ins. Co., 8 Cush., 127 ; Loring vs. Massachusetts Ins. Co., 8 Gray, 28. This question has also been under consideration in the same court in several other cases. See Jacifson vs. Farmers' Mut. Fire Ins. Co., 5 Gray, 52 ; Tate vs. Citizens' Mut. Fire Ins. Co., 13 -Gray, 79. It has also been frequently adjudicated in the courts of other States. See Goodall vs. New England Fire Ins. Co., 5 Foster, 169 ; Nevins vs. Rockingham Mut. Ins. Co., 5 Foster, 22 ; Rollins vs. Columbia Fire Ins. Co., 5 Foster, 200 ; Folsomvs. Belknap County Mut. Ins. Co., 10 Foster, 231 ; Blanchard vs. Atlantic Mut. Fire Ins. Co., 33 N. H., 9 ; Flannagan vs. Camden Mut. Ins. Co., 1 Dutch., N. J., 506 ; Peabody vs. Washington County Mut. Ins. Co., 20 Barb., 339 ; Crafts vs. Union Mut. Ins. Co., 36 N. H., 44 ; Woods v.i Rutland and Addison Mut. Fire Ins. Co., 31 Vt., 552 ; Stimpson vs. Mon- mouth Mut. Fire Ins. Co., 47 Me., 379. Thirty-eigJilh. "And until such proofs, declarations and certificates are produced, and examinations and appraisals per- mitted, the loss shall not be payable." This is a general provision, applicable to all the foregoing provisions as to notice and preliminary proofs, examinations and appraisals, and is designed on the part of the under- writers to make each and all of them conditions precedent to the right of the assured to recover upon a loss. With refer- ence to appraisals and the stipulations therefor, we have seen that the courts are not ousted of their jurisdiction, unless OP INSURANCE. 471 appraisal has been had and an award made, or unless the pro- ceedings have been entered upon. See ante, 34. Thirty-ninth. "All fraud or attempt at fraud, or false stvearinff on the part of the assured, shall cause a forfeiture of all claim under this policy." The fraud, in order to be fatal under this provision, must be committed or attempted by the party himself, or, at least, must be known to or approved by him : therefore, where an agent innocently made a misrepresentation of facts while effecting a contract for his principal, it will not amount to fraud on the part of the latter, though he was aware of the real state of the facts, if he neither directed the agent to make the misrepresentation nor was aware of its being made. Kelly vs. Troy Fire Ins. Co., 3 Wisconsin, 254. Concealment of the existing of incumbrances, at the time when the ratification of a transfer of the policy was procured, is such fraud as vitiates the policy in the hands of the as- signee. Cumberland Valley Mutual Protection Ins. Co. vs. Mitchell, 48 Penn. St., 374. To create a forfeiture under this clause on account of false swearing, it must have been done wilfully and knowingly, with design to defraud the company. Franklin Fire Ins. Co. vs. Updegraff, 43 Penn. St., 350. Tlie mere fact, that the amount of the loss as found by the jury was less than the amount claimed to have been lost in the preliminary proofs, would not sustain a charge of "false swearing." It must be, not only wilful and with intent to deceive, but must have been with respect to a material mat- ter. Marion vs. Great Republic Ins. Co., 35 Mo., 148. In an English case, Levy vs. Baillie, 7 Bing., 349, where the insured swore to his loss as .£1,085, and the jury found it only £500, a rule for a new trial, obtained on the ground that the finding of £500 damages, instead of the much greater amount sworn to, was, in effect a verdict for the defendants under the condition as to false swearing, was made absolute. But wliere the assured in his affidavit laid his damages at 472 OP INSURANCE. 12,800, and the jury brought in a verdict for only $1,850, it was held by the Supreme Court of Maine, not to be evidence of such "false swearing" or fraud as would justify a new trial, where the jury had been instructed to find for the de- fence, if they believed there had been any false swearing on the part of the assured. Moore vs. Protection Ins. Co. 29 Me., 97. Fortieth. "It is furthermore hereby Expressly provided, and mutually agreed, that no suit or action, against this company for the recovery of any claim, hy virtue of this policy, shall he sus- tainable in any court of law or chancery, unless such suit or action shall be commenced within twelve months next after the loss shall occur : and should any suit or action be commenced against this company after the expiration of the aforesaid twelve months, the lapse of time shall be taken and deemed as conclu- sive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding." Considerable doubt was expressed whether this clause, lim- iting the period within which an action must be brought upon a policy of insurance to a time much less than that fixed by the general statutes, was valid and binding upon the assured, -and such condition was held invalid in the cases, the Eagle Ins. Co. vs. La Fayette Ins. Co., 9 Ind., 443 ; French vs. La Fayette Ins. Co., 5 McLean, C. C, U. S., 451 ; but similar clauses have been sustained by a great number of courts and in numerous cases since 1848, and may now be considered as judicially settled by the courts of nearly all the States in the Union. In the early case, Cray vs. Hartford Fire Ins. Co., 1 Blatcli- ford, C. C, U. S., 280, which was a bill in equity, to recover the amount of a policy of insurance, commenced after the period limited in the policy, it was held that the stipulation went to the right as well as the remedy, and the liability of the company, did not become absolute unless the remedy was sought within the period limited. The same doctrine was sustained in the cases, — Fullam vs. New York Ins. Co., 7 Gray, 61 ; Brown vs. Eoger Williams OF INSURANCE. 473 Ins. Co., 5 R. I., 394; Brown vs. Savannah Mut. Ins. Co., 24 Ga., 97 ; Northwestern Ins. Co. vs. Phoenix Oil and Can- dle Factory, 31 Penn. St., 448 ; Patrick vs. Farmers' Ins. Co., 48 N. H., 621 ; Brown vs. Roger Williams Ins. Co., 7 R. I., 301; Woodbury Savings Bank vs. Charter Oak Ins. Co., 31 Conn., 518 ; Roach vs. New York & Erie Ins. Co., 30 N. Y., 546 ; Ripley vs. ^Etna Ins. Co., 30 N. Y., 136. In some of these cases, the period limited was as short as six months after the loss, but in the case of Longhm-st vs. Star Ins. Co., 19 Iowa, 364, it was held that such condition will not be enforced, when so inconsistent with the nature of the interest insured as to render a recovery unattainable with the exercise of due diligence ; and in Mayor and Corporation of New York vs. Hamilton Fire Ins. Co., 16 Bosworth, 537, where a condition limited the time for commencement of suit to six months after a loss, and another condition provided, that the payment of losses shall be made in sixty days from the date of the adjustment of preliminary proofs of loss, it was held that these conditions must be so construed, as not to conflict unnecessarily with each other, and where the parties, in good faith and without objection that unnecessary time is taken, are so long in adjusting proofs that sixty days from the date of adjustment does not expire within the six months, it was held that aii action might be brought upon the expir- ation of sixty days from the adjustment of loss, though more than six months had then elapsed. In Michigan, it was held by the Supreme Court, that if such a condition was valid at all, it was valid as a contract only, and tliat the limitation fixed by it, must, upon the gen- eral principles which govern contracts, be more flexible in its nature than one fixed by statute, and liable to be defeated or extended by any act of the insurer, which prevents action being brought within the prescribed period. Peoria Marine and Fire Ins. Co. vs. Hall, 12 Mich., 202. But in a case in New York, in which the company declined paying, on the ground that suits had been commenced against him by other parties which were still pending, and declared that they would not pay, nor have anything to do in reference 474 OP INSURANCE. to such loss while those suits were being prosecuted : it was held, that this did not amount to a waiver of the condition of limitation, nor operate as an estoppel against such defence. Ripley vs. ^tna Ins. Co., 30 New York, 136. In Illinois, such stipulation was held valid, but the court suggested, (what all the cases agree in), that there might be a waiver of such condition by the conduct of the company. Peoria Fire and Marine Ins. Co. vs. Whitehill, 25 111., 466. In a case in Iowa, in which the subject of insurance was a mechanic's lien interest, it appeared that proceedings to es- tablish the lien were commenced immediately after the fire, and proofs of loss were furnished, and suit brought on the policy, but the action on the policy was not commenced till the period (twelve months) of limitation fixed by the policy had expired : it was held, that while such a condition was usually valid and binding, the whole contract of insurance and all its parts were to be construed together, and that as the policy required that proof of the value of the interest should be made before payment of the loss could be demand- ed, and as the only evidence of the value of a mechanic's lien is the judgment of a court establishing it, and as the suit to establish the lien appeared to have been prosecuted with diligence, the condition was, in that case, not a bar. Stout vs. City Fire Ins. Co. of New Haven, 12 Iowa, 371. But the mechanic must have been able to swear to the amount of his claim ; and when a lien is provided for by statute, and the requirements of the statute have been com- plied with, there would seem to be no difficulty in making the preliminary proofs called for by the policy, before a judg- ment establishing its validity had been secured. Such proofs do not necessarily control the action of the assured, or the final result of the case, but they authorize demand, and upon refusal after demand, upon the filing of such proofs, suit might be commenced, and if judgment establishing the lien be had, at any time before final hearing, it would then be conclusive as evidence. In a case in Upper Canada, the plaintiff in his pleadings counted upon a policy alleged to have been sealed and exe- OP INSURANCE. 475 cuted by the defendants. A conditional limitation of six months, stipulated for in the policy, was set up in defence. The insured replied, that when the loss occurred, the defend- ants had not yet issued a policy to the plaintiff, though he had effected the insurance, and that, although requested, they refused till after the commencement of suit to issue the policy, and that by reason of such delay he was prevented from bringing his suit till the six months had expired. This the company denied, and it appeared that, hefore the expira- tion of six months from the fire, the policy was executed and ready for delivery, and the plaintiff notified thereof, upon which the defence was sustained. Hickey vs. Anchor Insur- ance Company, 18 Upper Canada, 433. The condition is sometimes different from that above quoted, the words, " and become due," or other equivalent or similar words, being added. This, of course, affects the commencement of the period limited, and each case must, as to this, be determined by the special terms of the policy. Wliere the limitation was, " within two years next after such loss or damage shall occur and become due," and another clause of the policy provided that, " payment of losses should be made in ninety days after proofs should be received at the office of the company," and still another clause required notice of loss to be given " forthwith," and " a particular ac- count" to be delivered "as soon after as possible;" it ap- peared that the fire occurred on January 21st, and proofs were delivered on the 25th of the same month. On March 1st, the plaintiff, finding that he had not correctly stated the amount of his interest, made out and delivered additional proofs. It was held, that the limitation clause was valid and binding ; that the terms, " as soon as possible," meant, with " reasonable diligence under the circumstances ;" and, that it should be left to the jury, whether there had been such dili- gence, and also whether the proofs were completed on Jan- uary 25th, or not till March 1st ; and that reasonable time for the proofs to be received at the office should be allowed, and ninety days after that time should be deemed the commence- 476 OP INSURANCE, ment of the period of limitation. Longhurst vs. Conway Fire Ins. Co., Iowa, (1861). Where insurance was, " subject to the provisions and con- ditions of tlie charter and by-laws of the insurance company," and one of the conditions required, that suit be brought within a time limited and in a specified county ; the part of the condition natoing the county in which the cause should be heard was held invalid, but the court ruled that the rest of the by-law was not affected thereby. Amesbury vs. Bow- ditch Mut. Fire Ins. Co., 6 Gray, 596. In the same case, construction was given to another by-law of the same company, in which it was provided, that upon the occurring of a loss, the directors " would proceed to fix the liability, and if the assured should not he satisfied ivith the amount fixed hy them, he should bring suit "/or the loss claimed" within a time named. It was held, that this limi- tation clause was confined to the " loss claimed," leaving the remedy of the assured to recover the amount fixed by the directors subject only to the statute of limitation ; and the as- sured in a suit for the " loss claimed," was permitted to amend and take judgment for the amount " fixed by the di- rectors." ' What shall amount to a waiver, on the part of the under- writers, of the terms of such limitation, has been variously held. In a case in New Brunswick, it was held that such a condition could not he waived, that the lapse of the time lim- ited extinguished the liability, and that such liability could not be revived by a waiver, but that the company could dis- pense with the condition hy deed. The plaintiff attempted to meet the defence under the limi- tation clause by a replication, that the underwriter was a foreign corporation, and that no action could have been sus- tained within the time limited, unless the defendants had voluntarily appeared, there being no means of compelling their appearance : but the court held such reply insufficient, on the ground that the proceedings might have been com- menced within twelve months, or the company might have been sued in the country where they were incorporated ; and OP INSURANCE. 477 that the company was not estopped, to set up lapse of time as a defence, by its having voluntarily appeared. Ketchum vs. Protection Ins. Co., 1 Allen, (New Brunswick), 136. Where two parties were insured jointly, and the directors refused to pay the loss, on the ground that one of them was under indictment for setting fire to the property, and afterward they voted to pay the loss of the party who was not impli- cated in the fraud, and suit was afterwards brought by the other party, and it appeared that the time within which suit must be brought had elapsed, reckoning from the time of the first determination of the directors not to pay, but had not elapsed counting from the time of the allowance to the other party : it was held, that the time must be reckoned from the first vote of the directors not to pay, and that the payment to the other party did not revive the claim, or take it out of the limitation ; and that the cause of action was not suscep- tible of being revived by an acknowledgment or new promise. Williams vs. Vermont Mut. Fire Ins. Co., 20 Vt., 222. In a case in Indiana, it was held that when insurers, by holding out to the assured the prospect of an amicable ar- rangement, have themselves caused the delay, they cannot avail themselves of the stipulation for limitation of the time within which suit shall be brought. Grant vs. Lexington Ins. Co., 5 Ind., 23. But in a case in New Hampshire, where it appeared tliat there had been negotiations between the parties, with a view of referring to arbitrators the questions in dispute, and with- out any express arrangement to suspend legal remedies, it was held that this would not, in the absence of fraud on the part of the company, defeat the clause of linaitation. Gooden vs. Amoskeag Fire Ins. Co., 20 N. H., 73. In Wilson vs. Mtna. Ins. Co., of New York, 27 Yt., 99, where a suit was brought within the twelve months limited in the policy, but the assured was non-suited, and did not commence a second suit till after the twelve months had ex- pired, it was held that he was barred by the clause of limita- tion, and could not recover. In a case in Upper Canada, where the policy contained a clause of limitation, the plain- 478 OF INSUEANCE. tiff alleged a waiver, and relied upon a conversation between his agent and the president of the company to substantiate it. It was held, that the limitation could not be so waived, and that evidence of the conversation was, therefore, properly- rejected. It also appeared, that the secretary of the company wrote the agent of the assured as follows, " I am desired by the president and board of directors to acquaint you that the party having failed in substantiating any claim for loss by accident or misfortune, as required by the conditions of the policy, the board is not disposed to admit the same." It was held, that such letter contained no evidence of a waiver of this condition. Lampkin vs. Western Assurance Co., 13 Upper Canada, 237. But where the limitation clause provided, that suit should be brought within six months from the date of loss, and it was stipulated in the policy that the company should have ninety days after proofs were filed in which to pay, and the proofs were filed in nine days after the loss, to which the company specified objections eighty-five days afterwards, and upon the filing of amended proofs claimed, and were allowed, ninety days more in which to pay, and then, upon suit brought, set up in defence the six months limitation : it was held, that the limitation was waived. Ames vs. New York Union Ins. Co., 14 N. Y., 254. In Provincial Ins. Co. vs. ^tna Ins. Co., 16 Upper Canada, 135, it appeared that the plaintiffs insured a steamer and re-insured a part of their policy with defendants, under a policy containing a clause limiting suits to twelve months next after any loss or damage shoiild occur. The steamer was injured in November 1854, and the plaintiffs, having paid the loss on the 9th of August 1855, brought their action, on the 8th of August 1856, to recover from defendants their re- insurance. It was held, that the loss or damage referred to in the defendants' policy was the injury to the vessel, not the payment by plaintiffs of the loss, and that the action was too late. OF INSURANCE. 479 Forty-first. ^^ Plate glass in doors or windows, when the di- mensions are three square feet or more, also fences ^o„ must he separately and specifically insured, otherwise they are not protected by this policy." It is clearly within the power of underwriters, to provide against their liability for any articles which they may specify, unless such articles be separately and specifically insured. This may be done, as well where the articles are from their nature, as plate glass, almost certain to be totally destroyed in the event of fire, as where, from their highly inflammable character, they are more liable to burn. Forty-second. " Camphene, spirit gas, burning fluid, phos- gene or any other inflammable fluid, when used for a light, sub- jects the insured to an additional charge; and permission for such use must be endorsed in writing on the policy, otherwise this insurance shall be void." A violation of this clause was sustained as a defence in Stetiner vs. Granite Ins. Co., 5 Duer, N. Y., 594 ; and it was then held, to apply to insurance on merchandise as well as on building. In Mead vs. Northumberland Ins. Co., 3 Selden, 580, it was held, that evidence that camphene had been used in the building, in violation of a condition in the policy, (though it had been taken out and was not used at the time of the fire), ought to have been admitted, as the stipulation against its use must be taken as part of the contract, and as a warranty that it should not be used in the insured building, that the policy was thereby avoided, and that the discontinuance of its use before the fire would not restore its validity without the consent of both parties, unless the underwriters by some act waived the breach of the stipulation. The use of camphene for lighting a store, insured by a policy containing substan- tially the clause above quoted, was held to be a valid defence to an action upon the policy. Westfal vs. Hudson Eiver Fire Ins. Co., 4 Kernan, 289. Camphene, pine oil, and friction matches, were by con- ditions of a policy prohibited being kept, used or sold, in the 480 OP INSURANCE. building insured, without the special consent of the company in writnig on the policy. It was held, that such condition was not violated by the casual use of camphene or friction matches, by workmen employed in the building, contrary to the orders of the assured ; that the use contemplated by such a clause must be by authority, express or implied, of the assured, i. e., a known and permitted use; but that, if the assured knew, or if as prudent men exercising ordinary dili- gence they ought to have known, of such use, mere orders to the contrary would not avail them ; that it was the duty of the assured to enforce such prohibition, and if the use was habitual, the law would impute to the assured knowledge and permission. Farmers' and Mechanics' Ins. Co. vs. Simmons, 30 Penn. St., 299. A policy provided that camphene, &c., should not be used, unless permission for such use is endorsed in writing on the policy and there is then to be charged an extra premium: it was held that evidence of a verbal agreement, at the time of issuing the policy, that the assured might use camphene as a lighting material, and that a poi'tion of the premium paid was for that privilege, (there being no written evidence to that effect), was inadmissible. Lamotte vs. Hudson River Fire Ins. ,Co., 17 New York, 199. That parol evidence is not admissible, to explain the terms of a policy and survey, was held in Glendale Woolen M'f 'g. Co. vs. Protection Ins. Co., 21 Conn., 19 ; Honiiick vs. Phoe- nix Ins. Co., 22 Mo., 82 ; Ripley vs. Mtwz. Ins. Co., 30 N. Y., 136 ; Sheldon vs. Hartford Fire Ins. Co., 22 Conn., 235 ; Wilson t)?. Conway Fire Ins. Co., 4 R. I., 141 ; Holmes vs. Charlestown Mut. Fire Ins. Co., 18 Metcalf, 211. Forty-third. " In witness whereof, ^c. And this policy is made and accepted upon the above express conditions." The effect of this clause is, to put all the stipulations on the footing of warranties, so that they must be strictly complied with. The contract rests upon them, is made and accepted with reference to them, and if they are untrue, or fail to be complied with in any essential particular, the contract is void. OF INSURANCE. 481 Section 9. Of the construction of insurance policies. The rules of construction applicable to this species of con- ti'act are substantially the same in reference to fire, marine, life and all other kinds of insurance. The contract must de- scribe the persons and the subject of insurance with suffi- cient distinctness, to enable the court and jury to determine their identity with reasonable certainty and substantial accu- racy. In the construction of this, as of all contracts, the intention of the parties is the real guide, but it must be the intention as expressed in the instrument, and, as we have seen in the foregoing section, can not be derived from or raised by parol evidence. If it appears, by clear and positive evidence, that the contract as written does not express the agreement which the parties intended to make, by reason of an accidental mistake, omission or change of language, a court of equity will correct the mistake and reform the con- tract, so as to make it express the real agreement of the par- ties ; and oven courts of law sometimes admit evidence of such mistake, and treat the contract as if reformed, accord- ing to what they believe to have been the purpose of the parties. Ambiguous words in a policy of insurance may be con- strued by extrinsic evidence of accompanying circumstances, and the usages of the business in which the property insured was employed. It has also been held, that conditions and provisos in a policy of insurance are to be construed strictly against the underwriters, as they tend to narrow the range and limit the force of the principal obligation, and that where the underwriters have left their meaning doubtful, by the use of obscure language, the language used will be construed most strongly against them. Hoffman vs. -iEtna Fire Ins. Co., 32 N. Y., 405 ; Merrick vs. Germania Ins. Co., 54 Penn. St., 277. Policies of insurance, like wills and other instruments, are to be considered and construed as a whole, and particular clauses are not to be wrested from their context, so as to de- 31 482 (IF INSURANCE. stroy the unity of the contract and create conflict wlien there should be agreement, but eacli part is to be illuminated and elucidated by every other part so as, wherever it is practica- ble, to reconcile all to one common intent and design. Mer- chants' Ins. Co. vs. Edward, 17 Gratt., Va., 138. Several general rules of construction have been adopted by writers on contracts, and are as applicable to contracts of in- surance as to any other forms of agreement, and may be usefully referred to here. First, " As a general rule tlie terms of a contract are to be understood in their ordinary and popular sense, rather than in their strict grammatical or etymological meaning. " Usage has, however, an important influence in governing the construction of language, and hence, where words have ac- quired by usage a peculiar sense, different from the ordinary and popular one, they are to receive that interpretation. In the early case of Brougli vs. Whitmore, 4 Term Reports, 210, Buller J. says, " A policy of insurance has at all times been considered in courts of law as an absurd and incoherent in- strument ; but it is founded on usage, and must be governed and construed by usage." Lord Kenyon in the same case said, "1 remember it was said many years ago that, if Lom- bard street had not given a construction to policies of insur- ance, a declaration on a policy would have been bad on a general demurrer ; but the uniform practice of merchants and underwriters had rendered them intelligible," so that, while the general rule as above stated is true, it is equally true that where in any case language has acquired a peculiar meaning, with reference to the subject matter of the contract, that meaning shall prevail in that particular case. Second, " Construction is to be what the common lawyers term favorable : that is, if the language used is susceptible of two senses, the words are to be so understood as to have an ac- tual and legal operation. Thus, a copulative may be treated as disjunctive, or the reverse, if necessary to prevent contra- diction and absurdity, or to save a contract from being void for illegality ; the rule"" being, as expressed by Lord Coke, that, " whensoever the words of parties may have a double OF INSURANCE. 483 intendment, and the one standeth with law and right and the other is wrongful and against law, the intendment that stand- eth with law shall be taken." Third. " The subject matter of an agreement is to be con- sidered in construing the terms of it, which are to be under- stood in the gense most agreeable to the nature of the con- tract." Thus, a stipulation in a policy of insurance, that a ship shall "sail with convoy," is held to mean convoy for the voyage ; the subject matter of the agreement being a voyage, and merely departing with convoy and sailing alone being no protection to the ship on the voyage. Fourth. " The whole contract is to be regarded in giv- ing it a construction, and one part is to be interpreted by another." Fifth. " Construction is to be such, that the whole instru- ment and every part of it may take effect, if possible, consis- tently with the rules of law and the intention of the parties." The last rule is perfectly consistent with this. Under that rule every part of the agreement does take effect, and the effect intended by the parties. One part is construed ; not destroyed or impaired, by the otTier. Sixth. " If the words of a contract do not fully express, or even if they are contrary to, the evident intention of the parties, the intention is to be preferred to the expression." As, if a promissory note be written, " I promise not to pay," (fee, if it represents a real transaction, it would be read without the negative. So, of course, a policy of insurance would be eliminated of words, or have words supplied, if necessary, to arrive at what must have been the intention of the parties. As, if a policy should read, " do insure loss or damage by fire," the word "against" would have to be interpolated , to give it the sense which the parties must be presumed to have intended to express. Seventh. " Tlae time when a contract was made is to be regarded in expounding it, and cotemporaneous exi)osition is of great weight in construction. In a very early English case, (cited by Mr. Metcalf, late 484 OF INSURANCE. a justice of the Supreme Court of Massachusetts, in his re- cent and very valuable work on contracts, where these rules of construction are stated with his usual clearness and preci- sion, and with ample and most useful commentary and illus- tration), May. 0. J. said, " Every grant shall he expounded as the intent was at the time of the grant. ^ As, if I grant an annuity to J. S. until he be promoted to a competent benefice, and at the time of the grant he was but a mean person, and afterwards is made an arch-deacon, yet, if I offer him a com- petent benefice according to his estate at the time of the grant, the annuity doth cease." Metcalf on Contracts, p. 309. So, a contract is to be construed with reference to the place where it is made. Eighth. " When terms used in a policy of insurance, or any other contract, are doubtful or ambiguous in meaning, they are to be taken most strongly against the person to be bound by them." This rule has but little force in modern judicial discussion and decision. The real effort of judicial labor is, to get at and enforce the real intention of the parties ; and with courts at the present day, the question is, what did the contractor suppose the coiitractee, understood, by what is expressed ; and if this can be satisfactorily ascertained, it will control the con- struction. The drafting of contracts is not usually the personal work of either of the parties ; in practical life, as is well known, the parties orally discuss and agree upon the terms of their contract, and then generally go to a competent person to put it in form for them ; both state the result at which they wish to arrive, or one states it and the other assents to it, and the lawyer or scrivener puts it in language, which he selects as expressing to his mind their idea. Now it is certain, that one party has, just as much as the other, to do with the selection and arrangement of the words which are finally adopted. Words are but " signs" and Ponblanque defines construc- tion to be, " the collection of the meaning of a contract from the most probable signs." Powell says, it is " the drawing of OP INSURANCE. 485 ail inference, by the aid of reason, as to the intent of a con- tract, from given circumstances, upon principles deduced from men's general motives, conduct and actions." Language itself, ivhen accurately used, is imperfect ; but much the largest share of cases, in which rules of construc- tion are required and judicial and forensic skill and acumen are in requisition to ascertain what is meant by the language used in a contract, arises from the inaccurate and, sometimes, grossly careless, selection, arrangement and general use of language, in cases, and with reference to matters, as to wliich words perfectly explicit and unequivocal might be employed. " If," says Vattel, (Law of Nations, p. 244 and on), " the ideas of men were always distinct and perfectly determinate, — if, for the expression of those ideas, they had none but proper words, no terms Ijut sucli as were clear, precise, and susceptible only of one sense, there would never be any diffi- culty in discovering tlieir meaning in the words by which they intended to express it : nothing more could be necessary than to understand the language. But, even on tliis supposi- tion, the art of interpretation would still not be useless. In all contracts, it is impossible to foresee and point out all the particular cases that may arise. We decree, we ordain, wo agree upon certain things, and express them in general terms ; and though all the expressions of a contract should be per- fectly clear, plain and determinate, the true interpretation would still consist in making, in all the particular cases that may present themselves, a just application of what has been agreed in a general manner. But this is not all, conjectures vary and produce new kinds of cases, which cannot be brought within the terms of the contract, except by inferences drawn from the general views of the contracting parties. Between different clauses of a long contract, there will be foimd con- tradictions and inconsistencies, real or possible, and the ques- tion is, to reconcile such clauses and point out the true construction : but the case is much Avorse, if we remember that fraud and cupidity seek to take advantage, even of the imperfection of language, and that men sometimes designedly throw obscurity and ambiguity into their contracts, in order 486 OP INSUKANCE. to be provided with a pretence for eluding them upon occa- sion. It is, therefore, necessary to estabUsh rales, founded on reason and authorized by the laws of natui-al presump- tions, capable of diffusing light over what is obscure, of de- termining what is uncertain, and of frustrating the purposes of him who acts with duplicity in framing his agreement." The same writer adds some maxims of justice and equity which are calculated to prevent fraud, as follows : " If he, who could and ought to have explained himself clearly and fully, has not done it, it is the worse for him : he cannot be allowed to introduce subsequent restrictions, which he has not expressed." Again he says, "On every occasion, when a per- son could and ought to have made known his intention, we assume for true against him what he has sufficiently declared." And again, " We ought to interpret obscure and equivocal ex- pressions in such a manner, that they may agree with those clear and unequivocal ones, which are elsewhere used, either in the same contract or in some other similar matter." And again, " Everything that tends to the common advantage in agreements, or that has a tendency to place the contracting parties on a footing of equality, is to be favored ; while every- thing that is not for the common advantage, everything that tends to destroy the equality of a contract, everything that onerates only one of the parties, or that burdens the one more than the other, is to be avoided." And again, " Whatever tends to render a contract void and ineifective, either in whole or in part, whatever introduces any change in things already agreed upon, or whatever tends to change the present state 6f things, is in disfavor." It is true, in reference to policies of insurance more than perhaps any other contract, that the party to be benefited thereby, frequently, and perhaps usually, is at no pains what- ever, to inform himself of the contents of the contract, still less to endeavor to ascertain its meaning. A majority of well-trained and careful business men, who have large amounts at the risk of fire, and whose indemnity depends upon the policies of insurance which they hold, and upon their conformity to the terms and conditions thereof, OF INSURANCE. 487 never read the entire contents of a single policy of insur- ance held by them, or examine the conditions and require- ments thereof, with a view to ascertain whether they are conforming thereto. It is not an unusual thing for a man, the main bulk of whose property has just been destroyed by fire, to get out from his safe and read for the first time his contracts of indemnity. Any one, familiar with the conditions of insurance adopted by the fairest and most liberal under- writers, will readily agree, that the probabilities are gi-eatly against entire conformity, on the part of an insured party, to all the requirements and conditions of his policy, if he is ignorant of the contents thereof. Many of the conditions and warranties will, probably, in the particular case, from the circumstances which attended the loss, the cause of the fire, &c., be quite immaterial ; but, if in the form of condi- tions precedent, or of warranties, they may be relied upon by the underwriters as a defence, (as we have seen in the fore- going sections), even if they are immaterial. The business of insurance is, fortunately for the business community, mainly managed and controlled by men, whose high character and usually clear sense of equity ordinarily prevents them from availing themselves of immaterial or technical objections, except in cases in which they believe there has been fraud. While this prevents such frequent and gross injustice as might often be perpetrated, it is no excuse for a business man, who has neglected to inform himself of that upon which his legal title to indemnity in an important emergency may come to depend. It is not agreeable to most business men, to be obliged to receive as a favor that which, but for their negligence, they might have demanded as a right. One purpose of the writer, in printing in large type and in the body of this work forms of policies of insurance and other contracts and instruments, is, to induce parties, who may be interested in such instruments, to read them with such care as to give them a general idea of their usual con- tents, conditions, requirements and limitations. A late dis- tinguished chief justice of Massachusetts, upon the occasion 488 ■ OF INSURANCE. of the trial of an insurance case, remarked, that the condi- tions of the policy in that particular case were printed in so fine type, and were so extended, that the plaintiff probably never read them, and that, indeed, so far as his knowledge extended, policies of insurance were rarely re^d with any care by parties receiving them, till after a loss had occun-ed under them ; but, he added, the court cannot make a new contract for parties, nor relieve them against the. consequences of their own negligence. Lessees are nearly or quite as negligent of the terms and conditions of the insti'uments under which they hold their lights, as we shall have occasion to notice in the chapter on leases, and, in that matter, lawyers and others who draw leases are quite apt to follow the printed forms that are in use in the place, where they happen to be, without sufficient care in examining their stipulations, and adapting them to the views of the parties, and to the particular matter in hand. Section 10. Form of Fire Insurance Policy in a Mutual Com'pany. Excelsior Mutual Fire Insurance Company op Hartford, Connecticut. This policy of insurance witnesseth : That whereas , of , has paid the sum of dollars, and is subject to assessment to an amount not ex- ceeding the premium charge of dollars, recorded upon the books of said company. In consideration of the premises, the said and his heirs, executors and administrators, are hereby insured against loss or damage by fire, under the conditions and limi- tations hereinafter expressed, for the sum of f , upon the following property, to wit : [Here describe specially the property insured.] [The " conditions and limitations" differ somewhat in the different companies, but the following embraces all that is usually inserted in such a policy.] OF INSURANCE. 489 And said company do hereby promise and agree to make good unto the said assured, executors, administra- tors, and assigns, all such immediate loss or damage as sliall happen by fire to the property as aliox-e specified, from the day of one thousand ciglit hundred and sixty at noon, unto tlie day of one thousand eight hundred and at noon, the amount thereof to be paid in ninety days, after notice and proof of the same, as herein required, or the property lost or damaged is to be rebuilt, or replaced, with others of like kind and quality, (at the election of said company), within a reasonable time. But this company shall in no event be liable till the actual payment of the premium, nor beyond the sum insured, nor beyond the actual value of the property insured at the time of the loss or damage, nor beyond such sum as will enable the insured to replace or restore the property lost or dam- aged, nor for any loss or damage of any books of account, bills, notes, bonds, deeds or other written instruments, money, bullion, jewels, plate, medals, paintings, musical and scien- tific instruments, statuary, sculpture or other curiosities, un- less by special agreement herein expressed ; nor to make good any loss or damage by fire, or otherwise, which may happen or take place by means of an invasion, insurrection, riot, or civil commotion, or of any military or usurped power ; or in consequence of the explosion of any steam-boiler, (ex- cepting so far as the value of the property after such explo- sion, shall be destroyed by fire) ; nor to make good any loss by theft ; or damage sustained in consequence of neglect of the assured to use all reasonable diligence in saving and pro- tecting the property ; and there can be no abandonment to the insurers of the property insured. And this policy is made and accepted upon the following express conditions, nz. : that this company intends to rely upon and shall have a lien upon the buildings hereby insured, and the land upon which they are situated, and upon the personal property hereby insured, according to the provisions of the charter of said company, for the amount of said premium charge ; that the application for this insurance is a part of this contract 490 op INSUEANCE. asid warranty on- the part of the insured ; .and that if, with- out the consent of the company expressed in this policy, the assured shall now have, or hereafter make, any other contract of insurance against loss by fire on the property, or any part thereof, hereby insured, whether sucli other contract sliall l;c valid or not, as against the parties thereto, or either of tliein ; or if the risk shall be increased by any means whatever within the control of the assured ; or if the title to the pro- perty insured, or any part thereof, shall be alienated ; or this policy, or any interest therein, shall be assigned ; or if the assured shall in any way attempt to defraud said company ; then, and in either such case, this policy shall be void. No estate shall be deemed to be alienated by mortgage un- til the foreclosure of such mortgage ; and this policy, if pay- able to a mortgagee, shall continue so payable, until foreclos- ure, notwithstanding any alienation of the estate made sub- sequent to such mortgage ; and such mortgagee shall pay all assessments for which the company would have had a lien on the estate if no such alienation had taken place, provided the insiired shall not pay the same on demand. And whenever a building hereby insured shall be altered, enlarged, or appropriated to any other purposes than those herein mentioned, or the risk otherwise increased, by the act or with the knowledge or consent of the insured, without the consent of the company first obtained in writing, this policy shall be void. But the company may, upon application of the insured, revive the policy upon such terms as they may deem equitable. It is understood and agreed, that in the building insured, or those adjacent thereto, ashes and friction matches are in rio case to be kept in vessels of wood, or in contact with wpod ; that a stove-pipe is to be kept froin any wood-work, is to terminate in a chimney, and be suitably cleansed, and the floor under and near the stove carefully protected from fire ; and that fire-boards an^ oven-lids pr doors are to be fire-proof. And it is further agreed, That in case the above mentioned preniises, at any time aftep the making of, and during the QP INSURANCE. 491 time this policy would otherwise contii|uo in force, shall, from any cause, be vacant or without occupant, unless notice of the same shall first have been given to this company, and mentioned in or endorsed upon this policy, this insurance shall be void and of no effect. And it is further agreed, Tliat the company have the right of cancelling any policy, at any time, when two-thirds of the directors present at any meeting shall deem there is sufficient cause therefor ; in such case the secretary shall give the party insured, and the party to whom the policy is payable, in case of loss, three days' notice, in writing, of the determination of the directors to exercise this right ; and the insured shall be entitled to receive the unexpired premium pro rata ; and the proprietor of any policy may surrender the same at any time, with the consent of the party to whom it is payable, and receive the dividend thereon, the value of the policy first to be ascertained, and fifteen per cent, deducted therefrom, to be retained for the benefit of the company. All dividends shall be forfeited to the company which are not claimed with- in one year after the expiration of a policy. In case of loss, the assured shall forthwith render to said company a particular statement in writing, signed and sworn to by him, setting forth the value of the property insured, his interest therein, all other insurance thereon, the purpose for which, and the persons by whom, the building insured, or containing the property insured, and the several parts there- of were used ; whei^ and how the fire originated, so far as he knows, and, if required, submit his books of account and other proper vouchers to the examination of said company, and permit extracts and copies thereof to be made. Where personal property is damaged, the assured shall forthwith cause it to be put in as good order as the nature of the case will admit, assorting and arranging the various articles ac- cording to their kinds ; and shall cause to be made and de- livered to said company an inventory of all articles lost or damaged, naming the quantity and cost pf each kind and the damage to each item. And in case of any other contract of insm-ance upon the property hereby insured, whether such 492 OP INSURANCE. other contract shall be valid or not, as against the parties thereto, or either of them, the assured shall not, in case of loss or damage, be entitled to recover of this company any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount in- sured on said property. It is expressly covenanted by the parties hereto, that no suit or action against the compan}^, for the recovery of any claim under or by virtue of this policy, shall be sustained in any court of law or chancery unless commenced within the term of one year next after any claim shall accrue ; any statute of limitation to the contrary notwithstanding. And when- ever this company shall pay any loss, the assured shall assign to said company all his rights to recover satisfaction thei'efor from any other party or parties, or prosecute therefor at the charge and for the benefit of said company, if requested. Now he it known, That the absolute and conditional funds of said company are hereby bound and subjected to satisfy and make good unto the said assured, heirs, execu- tors and administrators, all the damage by fire which may happen to said property, (not exceeding in the aggregate the sum hereby insured), within the term aforesaid, according to the true intent and meaning of the conditions of this policy. Provided, nevertheless, that if the whole of the absolute and conditional funds of said company should be insufficient to pay and satisfy all losses that may happen, in such case a just avei'age shall be made to the sufferers ; and tlie payment to be demanded, in virtue of this policy, shall be such a pro- portion of said funds as the loss sustained, by the party here- by insured, bears to the whole amount of losses then remain- ing unpaid. ■ Whenever gunpowder, petroleum or kerosene, or any other article subject to legal restriction, shall be kept in such premises, in quantities greater than the law allows, or in a manner different from that prescribed by law, unless said use or keeping is specially provided for hcreui, this policy shall be 'null and void. OP INSURANCE. 493 In witness whereof, The Excelsior Mutual Fire Insurance Company have caused this policy to be subscribed by their president and secretary, at Hartford, this day of in the year one thousand eight hundred and sixty , Secretary. , President. General Principles of Mutual Insurance Companies, and De- cided Cases. The leading principle of mutual insurance companies is, that each person whose property is insured becomes a corpo- rator, or member of the company ; and, consequently, is bound to take notice of the by-laws. This renders it obvious, that mutual insurance companies should be permitted to exercise their own discretion, in the selection of persons whom they will admit to membcrsliip by an insurance of their property, as the character of the person insured is usually of some importance. Companies of this sort can be safely conducted only by the exercise of mucli care in the selection of their risks, and in so scattering them as not to have much property at hazard at any one jjoint. Their capital consists of deposit notes, and of such amount of premiums as, by their act of incorporation, they are re- quired to have subscribed before commencing business, witli such amount as they may afterwards accumulate, from pre- miums earned and other sources of profit. These companies are usually entitled to a lien upon all the property insured by them ; and, where one of the conditions is, that if the representations made by the applicant for in- surance is materially false, the policy shall not be valid : it will operate as a fraud upon the other members of tlie company, if the applicant falsely calls the property his own, a,ndthereupon obtain insurance^and will render the policy void. Tlie misrepresentation is materially/ untrue, inasmuch as each member of the company is interested in having such a secu- rity from every other mei'nbcr, as will insure the payment of his proportion of any losses, which may occur during their 494 OF INSUEANC'E. mutual membership : for if an assessment of one should fail to be collected, it must rest upon the others. Brown vs. Williams, 28 Maine, 252 ; Houghton vs. Manufacturers' Mut. Fire Ins. Co., 8 Metcalf, 114. In Egan vs. Mutual Insurance Company, 5 Denio, (N. Y.,) 326, the defendant company on the trial offered to prove, that several judgments were rendered against the assured, after the making of the policy and before the fire, and which be- came liens on the house which was burned ; the application for insurance declaring, that if the assured should suffer a judg- ment which should be a lien on the insured premises, without communicating to the uisurers, the policy should be void. It was held, that the application was an express warranty ; and the contract having been broken, the policy was held to be void. So, in Smith vs. Bowditch Mut. P. Ins. Co., 6 Gush. (Mass.) 448, it appeared that, at the time the plaintiff effected the in- surance, he had no legal title to the property described in the policy. He had formerly owned and mortgaged it, and the mortgage had been foreclosed, and when the insurance was effected, he had only a bond for reconveyance of it upon cer- tain conditions. Now, this would, as we have seen in Sec- ti6n 6, ("of Insurable Interest and what may be insured"), have been sufficient to vest in the plaintiff an interest, which he might properly insure in a stock company, and upon i truthful statement of the condition of the title ; but the pol- icy was made subject to the provisions and conditions of the charter and by-laws of the company, and the company was a mutual one, having a right of lien upon all property insured. It was held, that the policy legally adopted and embodied those provisions and conditions, which were designed to se- cure an effectual lien to tlie company, as a part of the con- tract, to the same effect as if they had been set forth at large in the policy. It was argued, on behalf of the plaintiff, that a person having an insurable interest may represent the prop- erty as his own, and is not bound to state that his interest is a qualified one, unless inquiry is made. The opinion of the court, as delivered by Mr. Justice Met- OP INSURANCE. , 495 calf, is clear upon this point ; he says, " The present defend- ants ar6 a mutual insurance compai'iy, entitled by law to a lien upon the buildings insured by them and thd land under the same, and in the case at bar they relied on that lien as their policy expressly avers. In the case of Brown vs. Williams, the principles upon which we decide this case were distinctly recognized and affirmed. " The assured, in that case, applied to a mutual insur- ance company, and stated in his application for insurance, and in answer to the question, 'who is the owner of the building,' that he was the owner. In fact, he was not the owner of the building, but had, like the assured in this case, a bond for a conveyance thereof to him, on his perform- ing certain conditions. Whitman Ch. J. said, 'It is true, that an equitable interest may be the subject of an insurance ; and, in policies obtained at the common offices for the pur- pose, it need iiot be described as such. But, at mutual in- surance offices, it must necessarily be otherwise, when a lien in behalf of all concerned is to be created. It then becomes material that the company should be appraised of the true state of the ownership of the property to be insured, and it will operate as a fraud upon the members of the company, if the applicant calls the property proposed to be insured Jiu, and thereupon obtains insurance, when, in fact, he has but a contingent interest in it.' " So, in "Mahon's" case, (5 Call, (Va.) 517), the plaintiff stated in his bill, that he leased an unimproved lot of land in Norfolk for ten years, and was to have privilege of removal of the houses he might erect on it ; which kind of lease he alleged was usual in Norfolk. The plaintiff had built upon the land, and insured the buildings with the defendant company, and tliey were acci- dentally burned. The defendant company admitted the in- surance and the burning, but denied notice that the title was only leasehold, and insisted that only fee simple tene- ments were insurable in their company. The court, in their opinion say, " The appellee, (insured), having only a tempo- rary estate, and interest for a term of years, in the land whereon the house insured to him stood, and not having dis- 496 ^ OP INSURANCE. closed his true title and real interest in the said land, fully and fairly, ill the declaration he made of it to the appellants, (in- surers,) at the time they insured the said house, as he ought to have done, his case comes within the rule respecting con- cealment or misrepresentation ; and, whether done by design or mistake, renders his contract with the insurers null and void ; especially as by the constitution, rules and regulations of the company, formed by the insurers in this case, the as- surance was mutual, and the assured bound to pay a share, according to the sum insured, of all losses sustained by any of the insurers and partners in the insurance company ; and the property of each person so insured, being bound for such payment, ought to be as permanent as the property of the oth- ers, to answer such losses; or, if not so permanent, at least should be known to the company before insurance thereof is made." But the court added, "as no fraud appeared to have been contemplated by the assured, and the insurance may have been made and done through the mistake and misappre- hension of both parties, this court is of opinion, that all money paid or advanced, by the appellee to the appellants or their agents, for premiums and quotas on account of his in- suring the said house, shoidd be repaid to him with interest, and that the parties ought to bear their own costs." Membership of a mutual insurance company does not usu- ally cease with the destruction of the property insured, but the insured party continues liable to assessment as a mem- ber during the entire term for which his policy was issued. The principle being, that each party agrees to bear his pro- portion of all losses made during a stipulated term, in consid- eration that his o^'Yi loss, if his building shall be destroyed or injured by fire during the term, shall be borne by all pro- portionally. If his loss is paid, his associates have kept their promise to him ; but he has not fully performed his to them, till he has paid his fair and equal assessment for all losses durinp the stipulated term, without reference to the time when his building may be burned. The surrender of a policy, however, and its cancellation by the insurance company, would dissolve the relation of the in- OF INSURANCE. 497 sured as a member of the company, and they would have no further claims upon him, except for unpaid assessments pre- viously made, Campbell vs. Adams 38 Barb., N. Y., 132. A mutual insurance company must be governed, in all re- spects, by its charter and by-laws, and their provisions can not be waived by the officers of the company, as, in some respects and for some purposes, they may be by a stock company. In Holmes vs. Charlestown Mut. P. Ins. Co., 10 Met., (Mass.), 211, there was an application for insurance against loss by fii-e, of a meeting house and its fixtures, to a mutual insurance company. The company was restricted, by statute and its own by-laws, from insuring upon any building an amount exceeding three-fourths of the value thereof: in the applica- tion the value of the building was stated to be 14,000. The company executed a policy, insuring, under the limitations expressed in its own by-laws and in the statutes regulating mutual insurance companies, $3,500 on the meeting house and fixtures. The house having been burned, the company paid 13,000 towards the loss. In a suit on the policy, to recover the balance of $500, it was held by the court, that the statement of the value of the house and fixtures in the application for insurance was con- clusive on the assured, so that they could not be permitted to show, that the property insured was really, at the date of the insurance, of such value that $3,500 did not exceed three fourths thereof. The court say, "On referring to the application, the value of the building is agreed to be $4,000, and the plaintiffs now ask liberty, to show that it was in fact worth a much larger sum at the time of the insurance. But such evidence is in- admissible, and the valuation, if made in good faitli, is bind- ing on both parties. The converse of this proposition has arisen in two cases upon fire policies, and in them it is dis- tinctively settled, that the companies were concluded on the question of over valuation, the same not being fraudulent. (Borden vs. Hingham Mutual Fire Ins. Co., 18 Pick., (Mass.), 523, and Puller vs. Boston Mutual Pire Ins. Co., 4 Met., (Mass.), 206. ^2 498 OF INSURANCE. If the underwriters are precluded from going into evi- dence to show an over valuation, when no fraud is alleged, owners must, in like manner, be concluded, when the proper- ty is undervalued. The ground upon which this estoppel rests is well stated in a case as follows : " If a building is insured by a mutual insurance office to an amount, on a rep- resentation made in regard to its value by the assured, and with the knowledge, or the means of knowledge, of the situa- tion and actual valu^ of the property, and the assured pays a premi\im and assumes liabilities, as a member of the com- pany, proportioned to the amount insured, then, in the ab- sence of fraud, the company will be liable for the "whole of such amount, although it exceeds in value the interest of the insured. If it were not so, the assured would not get the security, by the policy for which he paid, against the risk of fire ; the insurance company would get an amount of pre- mium and deposit, and a right or claim for contribution against the assured who became a member of the company, greatly beyond what they are entitled to have. The assured makes, and the company accepts the estimate ; and' it is not to be supposed, that the parties intended that the value of tlie building insured should afterwards be drawn in question. Borden vs. Bingham Fire Ins. Co., 18 Pick., (Mass.3 523, as above quoted. Mutual insurance companies have become very numerous in this country, and a very large amount of fire and life in- surance is effected by them. A principal reason for this is, undoubtedly, their greater cheapness, as, where they are carefully managed, the risks well chosen and judiciously dis- tributed, the premiums required by them are generally much less than in stock offices. They are specially adapted to classes of property which are comparatively free from hazard, as detached dwelling-houses, barns, churches and other build- ings, and personal property therein. The safety of companies of this sort is, the exercise of care in the selection of their risks, both as to the character of the property to be insured, the scattered distribution of their risks, and the character and responsibility of the parties OP INSURANCE. 499 whom they may insure. It will be readily seen, that such companies should be permitted to exercise their own discre- tion in the selection of persons whose property they may in- sure, thereby admitting them to membership in the company, as the character and responsibility of their members is of the highest importance. Some companies, organized upon the mutual basis, are provided with a capital stock, as a perma- nent g\iaranty fund over and above the premiums received, and a portion of the net profits is paid by way of dividend upon this fund, and the residue only divided among the as- sured. The capital of companies organized purely upon the mutual basis consists of deposit notes, and such amount of premiums as by their charter or by-laws they are required to have sub- scribed before commencing business, and of such sums as after the company is fairly launched it may accumulate from premiums earned and other sources of profit, and which are used by them as capital in their business. Of the premiums, fixed and established by these companies in the taking of risks, only a small part is taken in cash, and for the balance a premium note or contract is given, stipu- lating that the assured will pay whatever part of the amount of the entire premium may be needed for payment of losses, which may occur during the period for which the insurance is made. This note fixes the limit, beyond which the insured cannot be held to pay, and it frequently happens that no as- sessment whatever is required ; and where the company is well established and does a careful business upon sound principles, part of the cash premium paid is frequently re- funded when the insurance expires, or credited to him in part of the premium to be paid on renewal of his policy. A well managed company, in Western Massachusetts, did business for more than a quarter of a century, insuring to a large amount detached property, upon risks well scattered, issuing policies for seven years at a uniform cash premium of one-fourth of one per cent., for the entire term, and during that period not only made no assessment upon its premium notes, but uniformly refunded to the assured upon the expir- 500 OF INSURANCE, ation of his policy, or credited to him on renewal thereof, more than seventy-five per cent, of the cash premiums re- ceived. This company had no guaranty fund, is still in ex- istence, doing a considerable business, and in excellent credit. The secret of their management was, great care in the selec- tion and distribution of their risks, and the smallest possible minimum of expenses. The manifest disadvantage of these companies is, that the cash premiums and premium notes usually constitute the whole capital or fund to be relied upon for payment of losses ; though this fund is generally made more secure by provisions in the charters, giving them a lien on the land itself on which an insured building stands, to the amount "of the premium. Another difference between mutual and stock companies is, that stock companies will generally insure to nearly or quite the full value of the property, while mutual companies are usually restrained by their charters from insuring more than two-thirds or three-fourths of the fair value of the prop- erty. It follows, that one insured by a mutual company cannot be fully indemnified, unless he has additional insur- ance in a stock company. Again, he may not be quite so sure of receiving his indemnity, as he would be if insured in a stock company well managed and having a large capital ; and, finally, he is liable to assessment to the full amount of the premium note given by him, which when added to tlie cash premium is usually considerably larger than the premium re- quired in a stock company. Against these disadvantages, the compensating advantage is, the smallness of the premium usually required to be actually paid. It has sometimes been claiined, that these companies should not only be carefully and prudently managed, as to the selec- tion and distribution of risks, but should, in the interest of insured parties, be confined within limited territorial districts. In the case of Satterthwaite vs. Mutual Beneficial Ins. Asso- ciation, 14 Penn. St., 393, the court took occasion to say of these companies, "They were originally intended for the safety of the vicinity and country in which they were located. OP INSURANCE. 601 In some instances they have attempted to grasp the State, and to extend their operations into every county. Eor one, I inll never agree to extend to tliem the law, as it lias been settled in cases of marine insurance. They shall have the law fairly administered, according to their charters." We have stated that a lien in behalf of the company is usually created : this renders it necessary that the true state of the title should be disclosed. Such disclosure is, as we have seen, called for by the conditions of the policy in a stock company, and the form of which we have given. In the charter of mutual companies there is frequently, and perhaps for greater security should always be, a provision substan- tisdly as follows : " That no insurance on any building or buildings (within the territorial district within which the company is authorized to insure) shall be valid and binding, unless the insured has a perfect title in fee simple, unincum- bered, to the building or buildings so insured, at the time of effecting such insurance, and also to the land on which the same shall be located, or unless the true title of the insured to the same and the incumbrances, if any on the premises, be fully disclosed and expressed in the proposals for insur- ance, and be also specified in the policy." To this point we have referred, and will add a reference to some additional cases. In Brown vs. Thomaston Ins. Co., 28 Maine, 252, it ap- peared that a mutual insurance company was entitled to a lien on all the property insured by them, and that the assured, in his application for insurance on a building, omitted to state that he held only a bond for a deed of it, to be delivered upon performance of certain conditions. It was held, that the company was not liable to pay for a loss by fire, otherwise within the policy. See also. Wells vs. Hill, 3 Metcalf, 66 ; Hamilton vs. Lycoming Ins. Co., 5 Penn. St., 339. We have said tliat a person insured in a mutual company is a member of it, and is bound to become informed of its rules and regulations. See Mitchell vs. Lycoming Mut. Ins. Co., 51 Penn. St., 402 ; Coles vs. Iowa State Mut. Ins. Co., 18 Iowa, 426. Therefore, a member of a mutual insurance company, who has contracted with it as a corporation, can- 502 OF INSURANCE. not object to the irregularity of the incorporation, or the formation of the company. Sands vs. Hill, 42 Barb., N. Y., 651. But the fact, that a company is a mutual one, will not ren- der the assured so far a member as to be bound by the acts of an agent of the company, pending his application for in- surance. Columbia Ins. Co. vs. Cooper, 50 Penn. St., 331. Nor is one, who has duly become a member of such com- pany, affected, as to his rights under his policy, by a by-law passed subsequently to the issue thereof, and which is in con- flict with the charter, unless it is assented to by him. Member- ship of a mutual company does not cease with the destruction of the property insured, under ordinary charters, but cen- tinues for the whole term for which the poUcy is issued, as before stated. Bangs vs. Skidmore, 24 Barb., N. Y., 29. But the surrender of a policy in such a company, and its cancellation by the insurers, dissolves the relation of the insured as a member thereof, and the company has no further claims vipon him, unless for unpaid assessments previously made. Campbell vs. Adams, 38 Barb., N. Y., 132. The failure of a mutual insurance company is not a failure of consideration, such as to defeat an action on a promissory note ; neither can the holders of policies in such an insolvent company set off the value of their policies in equity against the sums due on their premium notes. Conigland vs. Lisur- ance Co., 1 Phillips N. C, Eq., 341. In order to avoid a policy of insurance, made or accepted on condition that it should be forfeited on failure by the as- sured to pay when due a premium note given to the insurers, the burden is on the latter, to prove non-payment : and, if an agent receives payment of such note when overdue, and ac- counts for the same to the insurers, and they receive it with- out inquiry, they thereby waive the forfeiture, although the agent had no authority to do so. Hodsdon vs. Guardian Life Ins. Co., 97 Mass., 144. Where a policy contained a condition, that the insurance should not be considered binding until payment of the pre- mium : it was held, that parol evidence, that premiums were OF INSURANCE. 503 not usually paid at the time the policies were delivered, was ad- missible, to show a customary waiver of the condition, and tliat no intimation having been given to the plaintiff, that he would form an exception to such custom, the policy was bind- ing from its date. Pine vs. Merchants' Mut. Ins. Co., 19 La. An., 214. A memorandum that, " the insurance on this application is to take effect when approved by" a third party, appended to an application signed, after a delivery of a policy, by an authorized agent, will not save the liability of the company, unless notice of disapproval is given to the assured. Ins. Co. vs. Webster, 6 Wallace, U. S., 129. ' Upon a policy issued by a mutual insurance company, it was held, in Geisek vs. Crescent Mut. Ins. Co., 19 La. An., 297, that the insurers were liable for damages done to goods by water used in saving them from fire. A provision in the charter of a mutual insurance company, that it " may receive notes from persons who receive its pol- icies, and may negotiate the same for the purpose of paying claims, or otherwise, in the course of business," authorizes such company to transfer its notes thus received, as collateral security for the payment of its debts. Brookman vs. Metcalf, 32 New York, 691. It has been held by the Supreme Court of Massachusetts, that a mutual insurance company may resume business after passing a vote to take no more risks. Traders' Mut. Fire Ins. Co. vs. Stone, 9 Allen, 483 ; and it was held in a case in the Supreme Court of New York, that suit might be brought by a portion of the stockholders, on their own behalf, and on behalf of other stockholders who were interested with them in the same question, and who may elect to come in and contribute to the expenses of the suit and be bound by the judgment, to compel a mutual insurance company to readjust its dividends and correct an error in issuing certifi- cates of earnings. Luling vs. Atlantic Mut. Ins. Co., 45 Barb., 510. Three independent mutual insurance companies were chartered, by an act of the legislature of Massachusetts, as 504 OF INSURANCE. one company, under a new name, with a provision that the act, " shall not affect the legal rights of any person, nor take effect till it shall be accepted by the members of said corpo- rations respectively, at meetings called for that purpose." It was held, that a member of one of the old corporations, not expressly assenting to such act, was not, by the mere f6rce thereof, constituted a member of the new organization, but that such person must seek any remedies, to which he might be entitled under a policy, in an aciion against the original corporation of which he was a member. Gardner vs. Hamil- ton Mut. Ins. Co., 33 New York, 421. The policy issued by a mutual company and the premium note received thereupon are independent contracts, and de- fault by one party does not absolve the other. A vote by the company, to suspend insurances when notes are not paid, affects neithcf the note or the policy, unless the assured, when first appraised of it, assents thereto. New England Mut. Fire Ins. Co. vs. Butler, 34 Me., 451. A note given to a mutual company cannot be collected if the policy was originally void. Lynn vs. Burgoyne, 13 B. Monroe, 400. But it is no defence to an action by an insur- ance company on a premium note, that the company is in- solvent, for an insolvent party may enforce valid contracts in his favor, at law. Sterling vs. Mercantile Ins. Co., 32 Pa. St., 75 ; Alliance Mut. Ins. Co. vs. Swift, 10 Cush., 433. In an action against the maker of a premium note, he is estopped from denying that he had an insurable interest in the property : he can only get rid of the note by surrendering his policy and taking it up ; nor can he reduce his liability on the note, by proving that he was interested only in part of the property described. New England Mut. Fire Ins. Co. vs. Belknap, 9 Cush., 140. But the surrender of a premium note to the maker, by an arrangement with the company, is binding, unless impeached for fraud or mistake, even though there were unadjusted losses on which the maker made no payment. Hyde vs. Lynde, 34 Me., 451. Where the charter of such a company requires the assignee OP INSURANCE. 505 of a policy, to give satisfactory security for the amount due on the premium note, it is not necessary that he should give his own note : leaving the note of the assignor, if that is sat- isfactory, will be sufficient. Durar vs. Hudson County Mut. Ins. Co., 4 Zabriskie, N. J., 171, though it has been held, that the companies have no right to receive the notes of third parties, strangers to the policy. In an action on a policy, acknowledging the receipt of a premium note, it is not necessary for the insured to introduce further evidence of the note or its contents. Troy Fire Ins. Co. vs. Carpenter, 4 Wisconsin, 20. The non-acceptance of the amendment of the charter of a mutual insurance company cannot be set up as a defence to an action on a premium note, given by the defendant to the company in accordance with the provisions of the amend- ment. Fell vs. McHenry, 42 Penn. St., 41. When the contract is, to pay such portions of the premium note, and at such times, as the directors may require, agree- ably to the act of incorporation and by-laws: in an action for assessments, the declaration must allege the assessments to have been made in conformity to the charter and by-laws. Atlantic Mut. Fire Ins. Co. vs. Young, 38 N. H., 451. The contracts of an insurance company, made before the expiration of its charter, are valid for the unexpired term of its chartered life ; and, therefore, a premium note given to a mutual company upon the issuing of a policy, which would not expire till after the company had ceased to exist, is good and valid, and the assured will be entitled to no rebate or reduction, because of that fact. Huntley vs. Beecher, 30 Barb., 580 ; and Huntley vs. Merrell, 32 Barb., 626. When a premium note is payable in assessments, of which notice is to be given, a receiver of the company's assets can- not enforce collection of it by suit, till the assessments have been levied and the required notice given. W^illiams vs. Bab- cock, 25 Barb., 109 ; Savage vs. Medbury, 19 New York, 32. What is sufficient notice to one insured in a mutual com- pany of an assessment on his premium note was considered in Lothrop vs.. Greenfield Stock and Mutual Fire Ins. Co., 2 506 OF INSURANCE. Allen, Mass., 182, A by-law provided, that " if the assured shall neglect for the term of thirty days to pay his premium note, or any assessment thereon, when requested to do so by mail or otherwise," the policy should become void. The in- sured was described in the policy as of Roxbury, Mass., to which place notice of the assessment was sent by mail, after he had removed to Pennsylvania. It was held, that the com- pany was not responsible for its delivery, that the change of residence did not afiFect the company till they should be noti- fied thereof, that notice according to the by-law was suffi- ciently given by a deposit in the post-office, and that when sufficient time had elapsed for it to reach Roxbury the thirty days would begin to run, and if payment should not be made before its expiration the policy would become void. Representations made by an agent, at the time of his ef- fecting the insurance, that the company had so large a sur- plus that no assessment would be made, and that the cash premium then paid would be all that the assured would be obliged to pay, cannot be admitted in evidence in an action to recover an assessment on the note. Farmers Mut. Fire Ins. Co. vs. Marshall, 29 Vt., 23. Deposit notes are sometimes made part of the absolute funds of the company, collectable at the discretion of the directors, without regard to the validity of assessments, and such an arrangement may be enforced. Long Pond Mut. Fire Ins. Co. vs. Houghton, 6 Gray, 77. No recovery can be had by a mutual insurance company, upon notes, absolute upon their face, without proof of losses, where the charter and by-laws of the company provide /or assessment in case of losses, not to exceed the amount of the premium notes. Ins. Co., vs. Jarvis, 22 Ct., 133. Premium notes in advance are sometimes given, upon the first organization of a mutual company, to aid the company in securing such guaranty fund as will authorize it to com- mence business under its charter ; and the same object is sometimes seciu'ed by notes given directly for that purpose, without reference to their cancellation by payment of future premiums. Whether notes were given to constitute a fund OP INSURANCE. 607 to do business on, or were simply premium notes in advance, is a question of fact for the jury. Merbhants' Mut. Ins. Co. vs. Bey, 1 Sanf., N. Y., 184. Premium notes in advance may be cancelled on behalf of the maker, as fast as he secures and pays actual premiums, (including the note given upon the issue of each policy), upon policies issued ; and where a premium note in advance was paid by premiums on policies issued to the maker and his friends, it was held to be a valid proceeding, although it was not expressly authorized, nor subsequently ratified, by a for- mal vote of the directors. Emmett vs. Reed, 4 Selden, N. Y., 312. In an action on a premium note in advance, given to a company which divides its business into two departments, stock and mutual, it is not a defense, that there were no unpaid losses in the mutual department. Tuckerman vs. Brown, 11 Abbott, N. Y., 389. Assessments upon premium notes, while they need not be made upon every loss, should be made upon such rule as will produce a result approximating as nearly as possible thereto. It is part of the regular business, which may be considered and transacted at the regular meetings of a mutual insurance company, to order assessments, if the condition of the com- pany as to losses requires it ; and no special notice of such business need be given. We have seen, that one insured in a mutual company is to pay his proportion of all losses, which may occur during the entire time which his policy has to run ; if, therefore, the risk upon his building is terminated by its destruction soon after the issue of his policy, he may not with the payment of his loss require the surrender of his premium note. That must remain to be assessed, if it shall become necessary, for payment of all losses which shall occur during the entire term. But it is competent, however, for the insured and the directors or managers of the company, to estimate the risk upon the note, and deduct it from the amount of the loss of tlie injured, and deliver up the note, if it be done in fair- ness and good faith to other members of the company. 508 OF INSURANCE. Questions relating to assessments have been judicially dis- cussed in the following cases : New England Mut. Ins. Co. vs. Belknap, 9 Cash., 140 ; Bay State Mut. Fire Ins. Co. vs. Sawyer, 12 Cush., 64 ; Atlantic Mut. Fire Ins. Co. vs. Fitz- patrick, 2 Gray, 279 ; Hamilton Mut. Ins. Co. vs. Hobart, 2 Gray, 543 ; Marblehead Mut. Ins. Co. vs. Underwood, 3 Gray, 219 ; same vs. Hayward, 3 Gray, 208 ; James vs. Sisson, 6 Gray, 288 ; Long Pond Mut. Fire Ins. Co. vs. Houghton, 6 Gray, 77 ; People's Equitable Mut. Fire Ins. Co. vs. Ai'thur, 7 Gray, 267 ; People's Mut. Fire Ins. Co. vs. Westcott, 14 Gray, 440 ; Appleton Mut. Fire Ins. Co. vs, Jesser, 6 Allen, 446 ; People's Equitable Mut. Ins. Co. vs. Babbitt, 7 Allen, 235 ; In re People's Equitable Fire Ins. Co., 9 Allen, 319 ; Traders' Ins. Co. vs. Stone, 9 Allen, 488 ; Citizens' Ins. Co. vs. Sortell, 8 Allen, 217 ; Fayette Ins. Co. vs. Fuller, 8 Allen, 27 ; Hamilton Mut. Ins. Co. vs. Parker, 11 Allen, 574 ; Sen- inssepp Ins. Co. vs. Taft, 26 Indiana, 246 ; Sands vs. Hill, 42 Barbour, J^. Y., 651 ; Great Falls Mut. Ins. Co. vs. Harvey, 45 N. H., 292 ; Howard vs. Franklin Mut. Fire Ins. Co., 7 R. I., 429 ; St. Louis Mut. Ins. Co. vs. Brockler, 19 Mo., 135 ; Augusta Ins. Co. vs. French, 39 Maine, 622 ; New Hamp- sliire Mut. Ins. Co. vs. Hunt, 10 Foster, 219 ; Bangs vs. Gray, 2 Kernan, N. Y., 477 ; Atlantic Ins. Co. vs. Saunders, 36 N. H., 252 ; Bangs vs. Duckingfield, 18 New York, 592 ; Iowa State Ins. Co. vs. Prosser, 11 Iowa, 115 ; York County Mut. Fire Ins. Co. vs. Knight, 48 Maine, 75 ; Maine Mut. Ins. Co. vs. Neal, 50 Maine, 301 ; Sands vs. Sanders, 28 New York, 416 ; Sands vs. Sweet, 44 Barbour, 108. The members of a mutual marine insurance company signed an agreement, to " pay the company on demand the sums set opposite their respective names, or such part thereof as may from time to time be called in for the use of the said company, the same to be payable either in money or prom- issory notes." The objects of the agreement were stated in it thus : " Whereas, for the purpose of enabling the cor- poration to increase its business, and in order to give greater security to the holders of its policies, the directors Uave con- sidered it expedient to obtain a subscription of not less than OF INSURANCE. 609 two hundred thousand dollars, to be paid in stock notes, in advance of premiums, payable in twelve months from their date, and in such sums and at such times as may be decided upon by the directors. It is not proposed, to make any assessment on this subscription at this time, unless the business of the office should require it, but to retain it as a guaranty fund, on which, with its other assets, insurance can be based. It is proposed, however, to allow any subscriber the privilege of giving stock notes, from time to time, on ac- count of his subscription, to be paid him in premiums, and all such simis. so paid shall be in full, to the extent paid, of a,ll liability on account of this subscription." Held that the agreement created a contingent liability only, upon the part of the subscribers ; that the corporation stipulated, by implication, to issue policies to the subscribers, and thereby to enable them to discharge their liability on these subscrip- tions ; and that its inability, in consequence of insolvency, to perform its part of the agreement absolved the subscribers from liability thereon, either to the corporation or its cred- itors. Pendergast vs. Commercial Mutual Marine Ins. Co., 15 Gray, 257. By-Laws of a mutual insurance company, when referred , to in the policy as controlling the rights of the parties, are as binding as if their stipulations and conditions were set forth at length in, and made part of, the contract. But, where they are not referred to in the policy, nor made a part thereof, it has been held that they form no part of the con- tract, and that the insured is not bound by them. Kingsley vs. New England Ins. Co., 8 Cush., 393. If, however, a paper containing the by-laws, or any other relevant matter, be annexed to, and delivered with, a policy, it is, prima facie, a part of the policy, whether expressly refer- red to therein or not. Murdock vs. Chenango Co. Mut. Ins. Co., 2 Comstock, N. Y., 210. A by-law, passed after the making of the contract, does not bind those previously insured, to their injury ; as it is not competent for a mutual insurance company, any more 510 OP INSURANCK. thaa for any other contracting party, to impose new condi- tions, afifecting the contract, without the assent of the co-con- tracting party. New England Mut. Fire Ins. Co. vs. Butler, 34 Maine, 451. A by-law, requiring that suit be brought in a particular court, is void ; as courts cannot be ousted of jurisdiction con- ferred by general law, by the mere agreement of parties. Nute vs. Hamilton Mut. Ins. Co., 6 Gray, 174. If such a by-law contain also a requirement, that suit be brought within a specified time, it will be good as to that, and void as to the other. A by-law providing, that if the risk on the property shall be increased by the assured or " others," by any change of the circumstances disclosed in the application, the policy shall be void, unless, &c., is valid ; and, if an alteration by which the risk is increased is made by others, it will be a valid defence. Whether the change increased the risk, is a question of fact for a jury. Shepard vs. Union Mut. Fire Ins. Co., 38 N. H., 232. Any insurer, whether mutual or stock, or individual, may an- nex any conditions to his undertaking which he pleases; and if he makes an absolute and unqualified condition that a specified thing shall be done, as, that " a constant watch shall be kept on the premises, otherwise the policy shall be void ; if the assured fails to keep such watch, the policy is thereby avoided, and no question can he made, whether compliance af- fected the risk or not : but when the condition is qiialified by a limitation as to its materiality to the risk, it opens that question to the jury in each particular case. Parker vs. Bridgeport Ins. Co., 10 Gray, 302. Where one of the conditions of a policy of insurance, is- sued to a mortgagee, required the assured, in the event of a loss, to assign to the company " the mortgage" upon the prem- ises insured, together with " the debt" secured thereby or "so much thereof as would he sufficient to pay ike loss," and that a refusal so to assign should discharge the company from all liability under the policy : it was held, that an assignment of so much of the debt as would cover the amount of the in- OP INSURANCE. 511 surance, conditioned that the insurers shall collect such debt at their own cost, is a sufficient compliance with the con- dition. New England Fire and Marine Ins. Co. vs. John, 32 111., 221. A more simple form of policy, as follows ; is used by some of the oldest and most reliable mutual insurance companies. It will be noticed, that this form contains a clause making the assessments to be had, "pursuant to the act incorporating said company, hereto annexed." The policy is usually issued on a whole sheet ; two pages of which are appropriated to a copy of the charter and its amendments. The conditions are very brief and simple, and insurance in some of the oldest of these companies is well managed, had at cheap rates, and is reasonably secure. Mutual Insurance Company. No. This Policy witnesseth, that whereas , of , in the county of and State of Connecticut, has become a member of the Fire Insurance Company, and bound and obliged heirs, executors and administrators to pay all such sums of money as may be assessed by the directors thereof, pursuant to the act incorporating said company, hereunto annexed, and also secured to said company the sum of dollars, being the amount of the premium for insuring the sum of dollars unto the said heirs, executors, administrators and assigns, upon the following described buildings, viz : — [Here insert a description of the property to be insured] . reference being had to the application of the said , No. , on file in the office of said company, for a more particular description, and as forming a part of this policy, during the term of three years, commencing at noon on the day of , eighteen hundred and sixty , and ending at noon on the day of , eighteen hun- dred and seventy Now, be it known, that we, the members of said company, 512 OP INSURANCE. for and in consideration of the premises, do hereby certify that the said has become, and by these presents is insured in and by said company, upon tlie prop- erty aforesaid and as above specified in the sum of dollars. And we do hereby promise according to the psovisions of said act, to pay unto the said insured, executors, ad- ministrators or assigns, all such losses or damage not exceed- ing in the whole the sum insured as above specified, as shall happen by, or by means of, fire to said property during the time this policy shall remain in force. The said losses or damage to be estimated according to the true and actual value of said property at the time the same shall happen, and to be paid within three months after notice shall be given by the insured, according "to the provisions of said act. Provided, that if this policy shall be assigned, or any other insurance upon any or all the above named property shall exist, during the continuance of this policy, without the consent of this company under the hand of the secretary, in either case, this policy shall be void and of no effect : and provided also, that if such other insurance shall exist with the consent of this company as aforesaid, and a loss shall happen, this Company shall be holden to pay only its just proportion of such loss, according to the whole amount in- sured. Conditions. — 1st. In the buildings insured, or those adja- cent thereto, ashes and friction matches are in no case to be kept in vessels of wood, or in contact with wood ; every stove-pipe is to be kept two inches from any wood work, is tcr terminate in a chimney, and be suitably cleansed, and the floor under and near the stove, carefully protected from fire ; and that fire-boards and oven-lids or doors are to be fire- proof. 2d. If any dwelling insured as occupied, shall be vacated or unoccupied without the consent of this company, iinder the hand of the secretary, the insurance of said dwelling shall cease, while so unoccupied. 3d. This company, by giving notice to the insured, or OF INSURANCE. 513 his or her legal representative, and refunding the unexpired premium, may cancel the record of the policy, and it shall fronr that time be void. 4th. In case of loss or damage by fire, the insured, (as soon thereafter as possible), shall forward to the company a statement of the loss, declaring whether any, and what other insurance, upon the property burnt, existed at the time of the fire ; what was their interest therein ; that the loss was sus- tained by misfortune, and without fraud on the part of the insured ; and that the foregoing conditions had been com- plied with ; which statement shall be subscribed by the in- sured, and sworn to before, and certified by, a magistrate most contiguous to the place of the fire, not interested in the loss, and not related to the insured : and the same shall be accompanied by a certificate from the said magistrate, that he verily believes that the statement so made is true. In witness whereof, the president of said company has signed this policy, and the secretary thereof has counter- signed the same at , this day of , one thousand eight hundred and sixty Premium, $ President. Paid in Secretary. Policy and ) Sum insured, $ Application ) Rates per cent., Section 11. Of Foreign Insurance Companies. Insurance companies, doing business in States other than those in which they were incorporated and have their homes, are usually regulated by statute provisions of the States to which they come, and, if such regulating statutes are just and equal in their operation, they are valid and binding, and there is no reason to complain of them, as unneighborly or wanting in comity. It is essential to the validity of a contract of insurance, in favor of such an insurance company, that it should have pre- viously complied with the provisions of the statutes relating 33 514 OP INSURANCE. to such companies, and no action could be maintained by such a company on a premium note or other contract, with- out proof of such comphance. The People vs. Thenbea^r 13 111., 554 ; Jones vs. Smith, 3 Gray, 500 ; Washington Co. Mut. Ins. Co. vs. Dawes, 6 Gray, 376 ; ^tna Ins. Co. vs. Harvey, 11 Wisconsin, 394 ; Washington Co. Mut. Ins. Co. vs. Hastings, 2 Allen, 398 ; Williams vs. Cheny, 8 Gray, 206 ; Haverhill Ins. Co. vs. Prescott, 42 N. H., 547. The laws of the different States, requiring that the agents of foreign insurance companies, making contracts of insur- ance in their State, shall be deemed competent to receive notice of suits, have been held by the Supreme Court of the United States to be valid and reasonable ; and a judgment obtained in a State court, after service upon such agent, is entitled to respect in other States. Lafayette Ins. Co. vs. French, 18 Howard, U. S., 404. It would not diminish the power of such an agent, under such laws, that a special State agent and attorney is also appointed, whose particular duty it is^ to receive or accept such service. It has been held in some of the State courts, that, as a State legislature has clearly power to prohibit the doing of business in such State by a foreign insurance company, it may couple a permit to do business with such restrictions as it sees fit to impose. Fire department of Milwaukee vs. Hel- fenstein, 16 Wis., 137. But the Supreme Court of Pennsyl- vania, in Philadelphia Association, &c., vs. Wood, 39 Pa. St., 73, held, that an act of that State, requiring the agencies of foreign insurance companies in Philadelphia to pay a per- centage of their receipts to an association for the relief of disabled firemen, was so extraordinary in its terms, and of such doubtful constitutionality, that they declined to enforce bonds given for the payment of such percentage. And the Supreme Court of New Jersey, in a very recent and well considered opinion, held that, while it would be competent for a State entirely to exclude a foreign corporation from doing business within its borders, it would not be competent, after admitting it, to establish any regulations essentially OP INSURANCE, 615 more onerous than those imposed upon similar corporations, organized and doing business under the laws of tliu State so legislating. In Massachusetts, a statute passed in 1854, (Ch. 453, Sec. 36), provided, that if insurance be made in that State by a foreign insurance company, without compliance with the requisition of the act in regulation thereof, "the contract" should be valid. In an action iy such a company on a pre- miiun note, it was urged, that the intention of the legislature in making this provision was, not to render the notes given for premiums on policies valid, but, to give validity to the policies issued by them, and thus prevent them from availing themselves of their own illegal and unauthorized acts, to avoid payment of their liabilities to the insured in case of loss : but it was held by the Supreme Court of that State, that the effect of the validating clause was, to give validity to the entire contract, including the consideration, of which the premium notes made a part ; and that such corporation could maintain an action thereupon. Section 12. Of Life Insurance. First. Of its definitions anoUdistinguishing characteristics. This kind of insurance has been defined to be, '• a contract by which the underwriter, for a consideration proportioned to the age, health, profession, and other circumstances of the person whose life is the subject of insurance, engages that, that person shall not die within the time limited in the pol- icy ; or, if he do, that he will pay a sum of money to him in whose favor the policy was granted." Angell, Phillips, Ellis, Kent and other writers, all include, in the general definition of insurance, (including life poli- cies), the idea of indemnity, as the foundation upon which the contract must rest: but modern cases have greatly shaken, if not overturned, that idea as applied to life insur- ance, as we shall see more fully in the following pages. 516 OP INSURANCE. Second. Of the advantages of life insurance. The earliest mention now known to have been made of life insurance is in " The Laws of the Merchants and Mas- ters of the Magnificent City of Wisbuy." Wisbuy was, in the early part of the fourteenth century, a convenient and celebrated port on the north-west coast of Gothland, an island in the Baltic Sea, about equally distant from Sweden, Russia and Germany. It has now utterly perished, but its laws remain, to tell us of its old time "magnificence." These laws expressly make mention of insurance, and pro- vide that, " if the merchant shall oblige the master to insure the sMf, the merchant should be obliged to insure the mas- ter's life against the hazards of the. sea." Our English ancestors seem to have profited by the hints contained in some of the early laws of " Wisbuy," " Barce- lona," or the "Lombards," and in 1641, an action in the court of Kings Bench related to a policy of life insurance, which had been entered into by individual underwriters in the same manner in which ordinary shipping policies were in that early time. It was, undoubtedly, first applied to the benefit of the families of those insured, and probably was confined, at first, to those who were in positions involving some hazards out of the common course of life on the land, as merchants, masters and mariners at sea. Life policies were, in their earlier history, subscribed by individuals, in the same manner as we have shown that fire and marine policies were ; and it was less than two hundred years ago that the first " compa- ny " set apart capital and adopted measures for insuring lives, as a regular branch of business, and with reference to its now popular feature^ by securing a provision for widows and orphans. The " Mercers " Company first adopted the plan, upon the suggestion of one Mr. Assheton, whose name is now remembered only as the early efficient promoter, if not the originator, of Life Insurance, as adapted to the ends now se- cured by it. The second society or company, which attempt- ed the business, was called the " Society of Assurance for Widows and Orphans." Both of these companies have passed into history, but the third life insurance company, whose or- OF INSURANCE. 517 ganization is now known, is still doing business, and is the oldest life insurance company in existence. Angell refers to it, quoting from Magens as follows : " At London, we have an office for the insurance of lives, at Ser- geants Inn, in Fleet Street, of which Mr. Postlethwait gives an account, &c. It was erected the 25th of July 1706, by a charter from Queen Anne, granted to the then Lord Bishop of Oxford, Sir Thomas Allen Baronet, and others, for incor- porating them and their successors by the name of the '^Amicable Society for a Perpetual Assurance Office" whereby they might provide for their wives, children, and other rela- tions, &c. The principal idea of the Bishop seems to have been, to induce clergymen to save a premium out of their annual in- come, to insure their lives, so that, when they should die, their families might recover the sum secured. Magens says of it, this, " doubtless, is a very good institution, which has proved to be a comfort to many persons." The business is, as we have before suggested, confined mainly to England and the United States, they being the na- tions upon whom the ideas of home in its permanency have taken deepest and firmest hold. On the continent of Europe, it was, till quite recently, declared illegal by special ordinan- ces, on much the same grounds which have been urged in England and the United States against wager policies ; the apprehension it might occasion of the insecurity of the lives of those insured ; and the suggestion, that the life of a human being should not be treated as the proper subject of pecuniary valuation. An article in the Edinburgh Review, written in 1827, speaks of the practice of Life Assurance as in a great degree confined to England, and adds : " The fact, however, is not to be traced to an ignorance of its principles among the con- tinental nations, but to the comparative instability of their institutions, and to a consequent want of that security, which is the first and last requisite in Life Assurance operations ; — to the comparative poverty of some nations, and the preva- lence of a light hearted inconsiderateness in others. These 618 OF INSURAiSCE. causes, separately or in combination, have prevented its intro- duction into most of the continental nations, and greatly limited its operations in all." The article is quoted by Mr. Angell, in a note to his work on Insurance, Oh. 12, Sec. 279, and is of interest to those who would be glad to see a fuller aud more elaborate statement of the history of life insurance than can properly be given in this work. One of the earliest cases in this country upon a life insurance policy is, that of Lord vs. Dall, 12 Mass., 115, in which Ch. J. Parker says, "It seems that these insurances are not favored in any of the commercial nations of Europe, except England; several of them having expressly forbidden them, for what reason, how- ever, does not appear, unless the reason given in Prance is the prevailing one, ' that it is indecorous to set a price upon the life of a man, and especially a free man, which is above all price !' " It is not a little singular, (he adds), that such a reason should be advanced for prohibiting these contracts in France, where freedom has never been known to exist, and that it should never have been thought of in England, where for several centuries has been the home of established and regu- lated liberty." In the argument of this case, it was made a question, whether a policy of insurance upon a life was a con- tract, which could be enforced in Massachusetts ; it being claimed that the law of England, applicable to such contracts, had never been adopted or practiced in the United States. The Chief Justice said, " It is true, no precedent has been produced from our own records of an action upon a policy of this nature. But whether this has happened from the infre- quency of disputes which have arisen, it being a subject of much less doubt and difficulty than marine insurances, or from the infrequency of such contracts, it is not possible for us to decide. By the common principles of law, however, all contracts, fairly made, upon a valuable consideration, which infringe no law, and are not repugnant to the general policy of the laws or to good morals, are valid, and may be enforced, or damages recovered for the breach of them." In a more recent case in the same state, the late Judge OF INSURANCE. 519 Fletcher of the Massachusetts Supreme Court says, " It was formerly held to he unlawful, and was forbidden in some coun- tries by particular enactments, as repugnant to good manners and opening the door to abuses. But a very different view is taken of the subject at the present time. Life Insurance has become a very common, and a very extensive business, and is regarded as highly beneficial to the community." It is now universally conceded that the business, when well and pru- dently managed by sound and reliable companies, upon bases of premiums and of examination which will enable the insurer to do a business sufficiently remunerative, so that the family, the insured himself in the case of annuity policies, or the creditor, will be sure of receiving what has been stipulated for ; is beneficent, and in many ways useful. Every man, whose income, from his own personal services or from a business involving risks and hazard, is the reliance of his family for support, should endeavor to carry an insur- ance upon his life, to which his family may look, for at least, temporary provision in the event of his death. A few dol- lars, saved by economy in his life time, may prevent suffer- ing, and bring comfort when he is gone. So, a creditor, who can not afford to lose a debt due him, and which is depend- ent upon the life and success of his debtor, can easily guard against one contingency by taking out a policy. The chief danger, in this country, is, that the multiplicity of companies, and the close and active competition, will demoralize the bu- siness, by the taking of lives involving too much risk, thereby rendering it necessary to take so large a premium aS' to pre- vent sound lives from being insured ; or, if the premium is still kept down, so increase the proportion of deaths as to diminish the safety of the companies. These policies are quite unlike those upon fire and marine risks, in this, that they usually involve a life time, instead of a single year or a short term of years. Annuity policies, and policies payable if the party insured shall reach a stipulated age, are becoming more common ; these involve an additional form of benevolence and fore- S20 OP INSURANCE. thouglit, the care of the assured himself^ as well as of his fam^ ily, in the days of his feebleness and old .age. Second. Of the interest required to sustain a contract of Life Insurance. This is a question which once seemed to be well settled. Kent says, (Commentaries, Vol. 3, p. 468, 9th ed.), "The party insuring must have an interest in the life insured. The English Statute of 14 Geo. 3, c. 48, prohibited insurance on lives, when the person insuring had no interest in the life ; and it prohibited the recovery under the policy of a greater sum than the amount or value of the interest of the insured in the life, and required the insertion in the policy of the person's name interested therein, or for whose benefit the policy was made. " A hona fide creditor has an insurable interest in his debt- or's life, to the extent of his debt ; for there is a probability, more or less remote, that the debtor would pay the debt if he lived. "The insurance is frequently made apart of the creditor's security in loans of money. " A person may insure his own life for the benefit of heirs or creditors, or he may insure the life of another, in which he may be interested, and assign the policy to those who have an interest in the life. "The policy is good for the creditor as a collateral security, though he may have other security ; and being substantially a contrdct of indemnity against the loss of the debt, it ceases as to the creditor with the extinguishment of the debt. The in- surable interest in the life of another person must be a direct and definite pecuniary interest, and a person has not such an interest in the life of his wife or child, merely in the character of husband or father. But if a child be supported by his father, who is dependent on some fund terminable by his death, the child has an insurable interest in the father's life. So a sister has an insurable interest in the life of a brother, upon whom she depends for support. " The necessity of an interest in the life insured, in order to OF INSURANCE. 521 support the policy, prevails generally in this country, because wager contracts are almost imiversally held to be unlawful, either in consequence of some statute provision, or upon principles of the common law." Angell, writing at a considerably later day, says, " The party insuring upon a life must have an interest in the life insured, Insurance upon lives, as well as upon other events, in which the person insured has no interest, not only inevit- ably tends to introduce a pernicious sort of gambling and speculation, but it is pregnant with serious mischief. An old writer of eminence, speaking of the inhuman case of committing murder to gain the sum insured, relates as fol- lows : ' An instance of which villany happened a few years ago, in a London apothecary, who, having got his wife's life insured, soon after killed her. It is indeed true, tliat the in- surers are not obliged to pay a murderer convict, as happened in the case of the aforementioned apothecary ; yet this does not restore the life sacrificed.' " It has been held, that the holder of a note given for money won at play has not an insurable interest in the life of the maker of the note ; the debt not resting upon a good legal consideration. After the enactment of the English Statute (14 Geo. 33, to which we have referred, it was held by the Court of King's Bench, that, to render the policy valid within that act, the party for whose benefit it is taken out must have a pecuniary interest in the life insured ; and, for that I'eason, a policy takei;i out by a father, simply as sustaining that re- lation, was declared void. It was also held, that an heir of a person incapable, from idiocy or incurable lunacy, of making a will, or executing a conveyance, had only a bare expectation, and could not insure the life of that person against events, which may prevent the estate from descending to him. It has always been held, that any person may insure the life of another, if he has any valuable pecuniary interest in the continuance of such a life, at the time of effecting the insurance. In " Valton & Adams vs. National Loan Fund Life Assur- ance Society in New York," — cited originally in Heynolds on 622 OP INSUSANCE. Life Assurance, and referred to by several authors and judges since, — three persons, Valton, Adams and Schumaclier, en- tered into a partnership, to trade in liquors. Schumacher was familiar with the business, and put in his skill a,gainst the capital of his partners. Schumacher soon after died un- married, having previously insured his life for ten thousand dollars, which, by the copartnership agreement, was, in the event of his death unmarried and childless, to go to his part- ners. Martin assigned his interest to Adams, and Valton and Adams sued to recover the amount of the policy. It was claimed, and the claim was sustained by the court, that as Schumacher was to contribute only his skill, his partners had an interest in his life, to secure the continuance of that as his share of the copartnership capital. (20 N. Y., 82). In Lord vs. Dall, already referred to, the interest of thfe plaintiff was that of a sister, without property, in the life of a brother, who stood to her in the place of a parent, and by whom she had been supported and educated, and it was held sufficient. The offices are not in the habit of taking the objection of want of interest, in any fair and honest case ; and, that they have always treated it as an objection not to be pressed in a case otherwise fair, is shown by the remarks of Ellis, (Ellis on Fire and Life Insurance), who states the reasons why the question of interest had not then arisen more frequently, as follows : " Because the offices are never in the habit of taking that objection, unless they are under the necessity of resisting payment upon some other fair and proper ground, as fraudulent misrepresentation or conceal- ment ; and, if they are driven to resist on such a ground, they then, in order to make their case the stronger, sometimes also object to the want of interest, when the policy is open to that objection. The offices are, in fact, constantly in the habit of taking insurances where the interest is upon a con- tingency, which may very shortly be determined ; and, if the parties choose to continue the policy in good faith, after the interest ceases, they never meet with any difficulty in recov- ering ; so also, they frequently grant policies upon interests of so slender and precarious a kind that, although it may be OP INSURANCE. 623 difficult to deny some kind of interest, it is such as a court of law would scarcely recognize. This practice of paying policies, without raising questions as to interest, is so general, that it has even been recognized in courts of law. As, where a person bought a policy of insurance of another, after th6 interest had expired or was on the point of expiring ; and some years after the sale and assignment, the executor of the purchaser, understanding that the office was not in law bound to pay upon the policy, brought an action to recover back the purchase money, but Lord Tenderden told the jury, that the only point for their consideration was, whether at the time of the sale there was any misrepresentation or concealment to vitiate the policy. It was true, in point of law, (he re- marked), that the insurance ceased with the interest, but then they had it in evidence that the insttrers never availed them- selves of that objection." At common law the policy might be issued, if there was then an interest in the life insured ; but the statute referred to (Geo. 3), declared that, " no greater amount should he re- covered from the insurer, than the amount or value of the interest," &c. This restricted it, not only to a contract to insure a life in which the party had an interest at the date of the policy, but provided that it should be deemed strictly a contract of indemnity. There seems to have been here a struggle between the legislature and the courts on one side, and the customs of insurers on the other, as to which should regulate the matter of " interest in the life" on the part of a party holding a life insurance policy. In such a struggle, upon a purely mercantile or commercial question, the popular view is sure in the end to win. There seemed forty years ago in England, to practical men familiar with the business, no sufficient reason why a policy of insurance on a life, which was good when issued, and therefore not a wager policy, should not remain good. The insured holder of the policy had invested in it the premiums already paid, and why sliould it become valueless to him, when the consideration for the contract to be performed by the insurer was full and ade- quate ? -Mr. Babbage, a practical man, in his work issued in 624 OP INSURANCE. London in 1826, seems to take this view, and claims that the leading idea of insurance, in general, is indemnity, as distin- guished from wager ; and that life insurance has not any cor- responding limitation. But the courts then, and for years afterwards, held differently. The case of Godsall vs. Boldero was the leading one on that subject, and is an interesting case, not only on account of the principle which it settled for many years, but by reason of the fame of the great British minister, William Pitt, whose life was the subject of insur- ance. The plaintiffs were coach makers, and were among the somewhat numerous creditors of the great statesman. On November 29th, 1803, they took out a policy on the life of Mr. Pitt, for £500, for seven years, at an annual premium of three and a fraction per cent. They averred in their de- claration that, " at the time of the making of the insurance, and from thence until the death of Mr. Pitt, they were inter- ested in his life to the amount of the sum insured." It ap- peared, that at the date of the policy and until his death, they were creditors of Mr. Pitt, to an amount exceeding five hun- dred pounds, and that he died insolvent ; and it also appeared, that after his death they were paid by the executors of Mr. Pitt the amount of their debt, out of the money granted by parliament for that purpose. The court held, that the plain- tiffs were not entitled to recover, and said that this insurance, like every other to which the law gives effect, is in its nature a contract of indemnity, as distinguished from a wager ; that the interest which the plaintiffs had in the life of Mr. Pitt was that of creditors, in a case where the probability of pay- ment depended on a continuance of his life, and the indem- nity sought by the insurance was against the loss which might result from his death ; that the action was, therefore, founded on a supposed damnification of the plaintiffs, caused by his death, &.nA. existing at the time of the bringing of the suit; and, consequently, if before the action was brought, the damages occasioned by his death were prevented by payment of the debt, the ground of action was taken away ; that it was no objection to the answer that the fund, out of which their debt OF INSURANCE, 525 ■was paid, did not come from liis estate, for though it was de- rived to the executors otlierwise than from his proper assets, the debt of the testator was equally satisfied by them there- out ; and the damnification of the plaintiffs, in respect of which alone the action could he maintainable, was fully obvi- ated, before the action was brought. It is said that the office, in conformity with the custom which has been named, did not avail itself of the verdict, but, having tested the question, whether it was recoverable at law, which was its purpose in the defence, paid the Dioney to the plaintiffs before they left the court. It will be seen, that the question is quite analagous to the one (as to the insurable interest of a mortgagee), discussed imder Sec. 6 of this chapter, division (c). The opposite cases and views there referred to, and the reasoning quoted from JJ. Gibson and others on the one side, and Ch. J. Shaw and Judge Hoar, on the other, is, much of it, entirely appli- cable here. In the case of Henson vs. Blackwell, (4 Hare, 434), the facts were, that a debtor and his wife joined in as- signing a security of the wife, to a creditor of the husband, to secure three hundred pounds due from the husband. The creditors holding the security afterwards insured the life of the wife in two hundred pounds. The security was not re- duced to money during the life of the wife, and after her death the insurers paid him the amount of his insurance. The maker of the security attempted to obtain the benefit of that payment in reduction of his debt, and his counsel at- tempted to rest their claim upon the authority of the decision in Godsall vs. Boldero : but the cases were entirely different, and the Vice Chancellor said, " The case before me is not one in which the creditor has been paid his debt, and seeks to recover upon the policy, notwithstanding such payment. It is a case in which the creditor has received the money under the policy, and the debtor is endeavoring to obtain the benefit of that payment, by procuring its application in reduction of his debt. The case of Godsall vs. Boldero, and others to the same effect, h9.ve only decided what was the meaning of a Qontract, which one contracting party sought to enforce against 526 OF INSURANCE. the other. In this case, a stranger to the contract asks me to decide in his favor, first, what the contract was between his creditor and the insurance office ; and second, that he (the debtor) is entitled to the benefit of that contract, to which in fact he is an entire stranger." The court approves the decision in Godsall vs. Boldero, and applies it to the case in hand, so far as to give construction to the contract between the insurer and the creditor, but refuses the plaintiff relief, on the ground tliat he was a stranger to the contract, and in no wise more entitled to the benefit than the creditor was to receive per- formance of his ; by payment of its amount of the policy, and also payment of the debt from the real debtor. The in. timation is plainly made, that the insurance could not have been collected adversely. That was, undoubtedly, the law as held at that day. But it has since been reversed in England, in Dalby vs. The India and London Life Assurance Company, 15 Common Bench, 365, (80 Eng. Com. Law, 364), in which it was decided, that the contract of life insurance was not one of indemnity, and held, that where a party had an inter- est in the life insured, at the time the insurance was effected, the fact of his interest ceasing in such life, before the death, did not invalidate the policy. It seems to have been assumed by Chancellor Kent, (Commentaries, 3 vol. p. 368), that the necessity, that the party to whom a policy is issued should have an interest in the life insured, arose out of the English statute, 14 Geo. 3, Ch. 48, and Angell, in his work on Fire and Life Insurance, seems to present the same idea. He commences Section 297 as follows : " In consequence of the perversion of the useful invention of Life Insurance, and with a view to prevent abuses in it, the English Parliament, in- terfered ; as at common law it seems to have been thought unnecessary, that, at the time of effecting the policy, the as- sured should have any interest, which might be prejudiced by the event insured against." He also adds in the same section, " It was also held by the Court of King's Bench, that in order to render a policy valid within the meaning of the act, the party for whose benefit it is effected must have a pecuniary interest 16 the life insured," &c. OF INSURANCE. 527 That this was so, at common law, is claimed and ably maintained by Judge Solden, in the Court of Appeals of New York, in the case Ruse vs. The Mutual Benefit Life Ins. Co., 23 New York, 516, it being held, that one procuring insur- ance upon the life of another cannot recover upon the policy, without proving an interest in the life assured. Judge Selden, in delivering the opinion of the court says, " The inquiry is, whether, at common law, independent of any statute, it is essential to the validity of a policy, obtained by one person for his own benefit upon the life of another, that the party obtaining the policy should have an interest in the life as- sured. "A policy obtained by a party, who has no interest in the subject of insurance, is a mere wager policy. Wagers in general, that is, innocent wagers at common law, are valid ; but wagers involving any immorality or crime, or in conflict with public policy, are void. To which of these classes, then, does a wagering policy belong ? Aside from authority, this question would seem to me to be of easy solution. Such pol- icies, if valid, not only afford facilities for a demoralizing system of gaming, but furnish strong temptation to the party interested, to bring about the event insured against. In res- pect to insurance against fire, the obvious temptation pre- sented by a wagering policy, to the commission of the crime of arson, has generally led the courts to hold such policies void, even at common law. It was so held in England at an early day by Lord Chancellor King, in Lynch vs. Dalzell, (4 Bro. P. C, 431), and by Lord Hardwick, in Saddlers' Com- pany vs. Badcock, (2 Atkyns, 557) ; and the courts in this country have generally acquiesced in, and approved of the doctrine. " In this state, such policies would fall under the condemna- tion of our statute, avoiding all wagers and gambling con- tracts of every sort ; but they would, no doubt, be also held void, independently of that statute, at common law. In How- ard vs. The Albany Ins. Co., (3 Denio, 301), Bronson, Ch. J., asserted the necessity of an interest in the assured in all 528 OF INSURANCE. cases, referring, in support of the doctrine, not to the statute, hut to the decisions of Lords Chancellors King and Hardwicke. " In regard, however, to marine insurances, a different rule seems to have prevailed in England ; and the cases of Clen- dining vs. Church, (3 Caines, 141), Juhel vs. Church, (2 John. Cas., 333), and Buchanan vs. Ocean Insurance Com- pany, (6 Cow., 318), are supposed to have established the same rule in this State. No reason, that I am aware of, has ever been given for this difference between fire and marine policies. The latter, when of a wagering character, are vici- ous and evil in their tendencies, as well as the former, and have been generally considered as noxious and dangerous, whenever the question has arisen. They should, therefore, as it would seem, for the reasons applied to policies against lire, have been held void, as contrary to public policy. " The distinction between these two classes of policies is, in my view, a mere matter of accident, and grew out of the peculiar manner in which the question was presented in re- spect to marine policies. The case of Depaba vs. Ludlow, (Comyn, 361), shows how the doctrine, that wagering pol- icies upon ships are valid, originated. The defendant there 1 ad insured the plaintiff ' interest or no interest.' On the trial it was objected, that the plaintiff could not recover, unless he had a property in the ship ; but the court said that the insurance was good, and that the import of the clause, ' interest or no interest,' was that the plaintiff had no occasion to prove his interest. Had the question been directly pre- sented in this case, whether a mere wagering policy was valid, the decision would, I think, have been different. The case itself shows the court to have supposed, that the plaintiff actually had an interest ; and it is apparent, from the authorities, that it had always been previously held, m suits upon pol- icies not containing the words ' interest or no interest,' or other equivalent words, that the plaintiff must aver and prove that he had an interest. This is distinctly asserted by Lord Hardwicke, in the case of Saddler's Company vs. Badcock (supra) ; and in the case of Crawford vs. Hunter, (8 Term^ 14), the counsel, on looking into the precedents at the re- OP INSURANCE. 629 quest of tlie court, found that it had been the uniform prac- tice, in suits upon marine policies, to insert an averment of interest. To me, therefore, it seems clear, that the decision in Depaba vs. Ludlow was made, because the court failed to distinguish between a waiver of proof at the trial, which the defendant was, of course, at liberty to make, and a waiver in the policy itself, by which it was converted into a mere wager. " In consequence of this case and others which followed it, Parliament was forced to interfere, as it did, by the act of 19 George II, oh. 37, reciting the mischiefs which had arisen from tlie making of marine insurances, ' interest or no in- terest,'^ and prohibiting them thereafter ; and when the ques- tion arose in Crawford vs. Hunter, (supra), as to the validity at common law of a mere wagering policy upon a ship, it was Iield to be valid, solely upon the authority of the recitals in this act. It was in this indirect way that the doctrine in question, as to marine policies, first ci'cpt into the law. It was important to show this, because the effect of what I con- sider as the inadvertence of the court in Depaba vs. Ludlow was not confined to policies upon ships. It must have been, I think, in consequence of the doctrine initiated by that case, that it came to be understood in England that, in insurances upon lives, it was not necessary at common law that the party to be benefitted by the policy should have any interest in the life of the insured. There may not have been any direct decision to that effect ; yet, that such was the prevalent impression, is to be inferred, from the enactment of the stat- ute of 14 George III, ch. 48, prohibiting insurances upon lives where the person insuring had no interest in the life. Angell, in speaking of this statute, says, 'At common law it seems to have been thought unnecessary that, at the time of effecting the policy, the assured should have any interest which might be prejudiced by the happening of tlie event in- S^ured against.' (Ang. on Life and Fire Ins., § 297). In New Jersey, they have no such statute ; and the question now to be decided, therefore, is, whether the impression, which seems to have prevailed in England prior to the stat- ute of 14 George III, was well founded. 3i 630 OF INSURANCE. " That impression does not appear to be supported by any adjudged case. Life insurance seems not to have been prac- ticed to a great extent in England until a comparatively modern date, and the probability is, that as soon as such in- surance became frequent, the evils of gambling in them was so apparent, that Parliament interposed, upon the assumption that the same rule would be applied to them as to insurance upon ships. I cannot regard that act as affording any very strong evidence, that, at common law, wagering policies upon lives were valid. It seems to me, that were the naked question presented, whether such a policy comes within the admitted exception to the validity of wagers in general, that is, whether it is repugnant to a sound public policy, no court, not hampered by some unfortunate or mistaken precedent, would hesitate for a moment in holding the affirmative. In Massachusetts, in Vermont, in Pennsylvania, and, I believe, other States, it has been so held in regard to wager policies in general. But policies without interest upon lives, are more pernicious and dangerous than any other class of wager pol- icies ; because temptations to tamper with life are more mis- chievous than incitements to mere pecuniary frauds. " Chancellor Kent was evidently embarrassed by the posi- tion of this question in England. He commences his remarks on the subject by saying that, ' the party insuring must have an interest in the life insured,' and then immediately refers to the English statute, of 14 George III, chapter 48, but says not a word upon the question, whether at common law an in- terest was necessary. He, however, concludes by saying that, ' the necessity of an interest in the life insured, in order to support the policy, prevails generally in this country, because wager contracts are almost universally held to be unlawful, either in consequence of some statute provision, or upon principles of the common law.' (3 Kent Com., 368). " This obscure manner of treating the subject is plainly to be attributed to the reluctance of the learned author to ad- mit, (notwithstanding the irapi^ession that appears to have obtained in England), that gambling in life insurance could be tolerated at common law. That impression has been here OF INSURANCE. 531 traced, as I think, with justice, to the very questionable doc- trine of the English courts in regard to marine policies. It has never, that I am aware of, been recognized and adopted by any American court, and is so obviously repugnant to the plainest principles of public policy, that it is somewhat sur- prising that it should ever have existed. My conclusion, therefore, is, that the statute of 14 George III, avoiding wager policies upon lives, was simply declaratory of the com- mon law, and that all such policies would have been void, independently of that act. " It is said, that the defendants, by issuing the policy upon the representation of the plaintiff that he had an interest, have admitted his interest, and that the production of the policy is, at least, prima facie evidence of such interest. This position cannot be sustained. All the older authorities show, that even in actions upon marine policies, not contain- ing the clause ' interest or no interest,' it was necessary to aver, and of course to prove, the interest of the plaintiff. It is an indispensable part of the plaintiff's case, to be made out affirmatively at the trial. Upon this ground, therefore, as well as that before considered, the judgment of the su- preme court must be reversed, and there must be a new trial, with costs to abide the event." (1861). Davies and Mason, JJ., dissented. It was held in Loomis's administrator vs. Eagle Life and Health Insurance Co., (6 Gray, 396,) that a father has an insurable interest in the life of his minor son. Ch. J. Shaw, in delivering the opinion of the court in that case, says, " All which it seems necessary to show, in order to take the case out of the objection of being a wager policy, is, that the insured has some interest in the life of the cestui que vie; that his temporal affairs, his just hopes and well grounded expectations of support, of patronage and advantage in life, will be impaired ; so that the real purpose is not a wager, but to secure such advantages, supposed to depend on the life of another ; such, we suppose, would be sufficient to pre- vent it from being regarded as a mere wager. Whatever may be the nature of such interest, and whatever the amount 532, OP INSURANCE. insured, it can work no injury to the insurers, because the premium is proportioned to tlie amount ; and, whether the insurance be to a large or small amount, the premium is com- puted to be a precise equivalent for the risk taken. Perhaps it would be difficult, to~lay down any general rule as to the nature and amount of interest which tlie assured must have. One thing may be taken as settled, that every man has an interest in his own life, to any amount in which he chooses to value it, and may insure it accordingly. " We can not doubt that a parent has an interest in the life of a child, and, vice versa, a child in the life of a parent ; not merely on the ground of a provision of law, that parents &c. are bound to support their lineal kindred when they may stand in need of relief, but upon strong moral considerations, and the force of natural affection between near kinelred, op- erating often more efficaciously than those of positive law. In tlie case of Lord vs. Dall, it was held it might be inferred from particular circumstances. " ' These insurances on lives, ' (says Mr. Park, in his very able treatise,) 'when a losS happens upon them, must be paid according to the tenor of the agreement, in the full sum insured, as this sort of policy, from the nature of it, being on the life or death of man, does not admit of the distinction between partial and total losses.' (Park on Ins., 7th Ed., 645.)" The court then refer to the English cases, including God- sail vs. Boldero, (9 East, 72), and remark that, that case, though it was questioned whether it was decided upon the right principle, stood as a high authority till a late period ; and after noticing the case in their own court, cited above, (see index of cases), of King vs. State Mut. Fire Ins. Co., 7 Cush., 1, and the case of Dalby vs. India & London Life Assurance Co., in which Godsall vs. Boldero is overruled, finally decide, that upon common law principles the plaintiff had an interest in the life of his son ; that the policy issued thereon was a valid one, and the plaintiff was entitled to re- cover upon it. In a case more recently discussed, before the Supreme OP INSURANCE. 533 Court of Massachusetts in 1860, (Forbes vs. American Mut. Life Ins. Co., 15 Gray, 249), Judge Hoar, in delivering the opinion of the court says, " Tlie question, what is sucli an in- terest in the life of another as will support a contract of insurance upon the life, is one to which a complete and satis- factory answer, resting upon sound principles, can hardly yet be said to have been given. It was fully discussed and con- sidered in the recent case Loomis vs. Eagle Life and Health Ins. Company, 6 Gray, 396, and it is there said by the Ch. J. of this court, that ' perhaps it would be difficult to lay down any general rule, as to the nature and amount of interest which the assured must have.' " As the premium is intended to be a precise equivalent for the risk taken, it would seem that the contract is a just and equitable one, whether any interest in the life exists or not ; and that the only essential enquiry is, whether the object of the contract is such as to obviate the objections to a mere wager up- on the chances of human life.^^ The question, whether it is merely a contract of indemnity, has come up, either directly or incidentally, in several cases. The Supreme Court of Connecticut, in a case in 1854, (Bemis vs. Connecticut Mutual Life Insurance Company, 23 Conn., 244), held, that the rule, that a contract of insurance is one of indemnity only, prevails in life insurance as well as in fire and marine insurance. It appeared that the plaintiff, having loaned to B. three hundred dollars in money, and sundry articles of personal property, under an agreement that the latter should go to California and there labor for at least a year, and account to the plaintiff for one half of his gains, insured the life of B. for one thousand dollars. It was held, that the plaintiff liad an insurable interest in the life of B., and that his policy was a valued one for that amount. Here the interest of the policy holder, in the labor of the party whose life was insured, was estimated to be of the value of |700, and tlie policy was therefore sustained for the full amount, notwithstanding the holding, tli.at the contract was one of indemnity only ; but in New York, it has been held, that a valued policy of insur- 534 OF INSURANCE. auce, effected by a person on his own life, is assignable like an ordinary chose in action, and that the assignee, for value, of such a policy is entitled, on the death of the party whose life is insured, to recover the full sum insured, without refer- ence to the consideration paid by him for the assignment. The court say, " It seems that life insurance is not regarded as a contract of indemnity merely." St. John vs. Tire Amer- ican Mut. Life Ins. Co., 3 Kernan, 31. The same question was raised in the subsequent case in the 27 of New York Eeports, (Rawls vs. The American Mutual Life Insurance Company), and it was held by a majority of the court, that when a creditor procures an insurance upon the life of his debtor, his insurable interest continues, al- though the statute of limitations would have barred his ac- tion, if pleaded, before the debtor's death. Several questions of interest were discussed in the case, and the opinion is of sufficient importance to warrant the insertion of a part of it here ; Wright J. says, " The defendants, in form, contracted with Fish for an insurance upon his life. In consideration of certain statements and representations made, and a pre- mium of f 117 to be paid annually in advance, the defendants promised and agreed with Fish, his heirs or other legal rep- resentatives, to pay the sum of $5,000 to the plaintiff, within twenty days after proof of the death of Fish, provided the policy should then be in force. If this is to be regarded and treated as a contract with Fish, to insure his own life, then the question attempted to be raised on the motion for a non- suit, viz., that the plaintiff had no insurable interest in the life of Fish, and hence that it was a gaming or wagering pol- icy, can not arise. If the contract is with the party whose life is insured, he may have the loss payable to his own repre- sentatives, or to his assignee or appointee ; and whichever be the form, his own interest is the same. It can only be by holding the policy, in substance and legal effect, that of a creditor upon the life of his debtor, that an interest was nec- essary on the pai"t of the plaintiff to support it. " I am inclined to regard the insurance as effected by the plaintiff on the life of Fish, although the policy in form pur- OP INSURANCE. 535 ports to have been procured by the latter. The plaintiff ap- plied for, aud obtained it as the creditor of Fish, to protect his interest as such creditor in Fish's life. " He took the initiatory steps for procuring the policy ; the application stated it to be for his benefit ; he paid the original and all subsequent premiums ; it was delivered to him, and he sues upon it as the party in interest, and as the only party connected with the pohcy who could maintain an action upon it. So far as the question of its validity is involved, it will, therefore, be treated as a contract, in substance, between the plaintiff and the defendants. " It is not at all necessary, to discuss the question, whether a, policy, obtained by a party having no interest in the life in- sured, would be void, either at common law or under our statute against betting and gaming. It may be conceded, that at common law it would be a wager policy and void, al- though it was distinctly held in the Exchequer Chamber, on error, in Dalby vs. The India and London Life Assurance Company, (15 Common Bench, 365 : S. C. 28 Eng. Law and Eq. 312), that such an assurance was legal at common law. But the case is not embarrassed by any such question. It was distinctly shown, and the proof is in no way controverted, that the plaintiff was a creditor of Fish, when the insurance was effected, in an amount far exceeding the sum named in the policy, and that, at the time of the trial, the debt was still wholly unpaid. He had, therefore, within all the cases, an insurable interest in the life of Fish, sufficient to support the policy. It was in no legal sense a wager contract. " Nor is it necessary to consider the question, whether a life policy is in its nature a contract of indemnity, as ma- rine and fire policies undoubtedly are. Eegarding tlie policy in this case as, substantially, a contract of indemnity against the loss of the plaintiff's debt, and that as an interest was required to support its inception, a continuance of that inter- est is essential to its perpetuity, there was no pretense that the debt or any part of it had been paid. All that the case showed was, that the statute of limitation had apparently run against the demand of the plaintiff at the death of Fish. 536 OP INSURANCE. " But suppose the statute had attached ; the interest of the plaintiff, as a creditor, in the continuance of the life of his debtor, had not ceased entirely. " The debt was not extinguished, as in the case of pay- ment. It might be renewed by a new promise, and, indeed, ■without such promise be enforced by action, unless the de- fence of the statute was directly interposed. It is not a legal presumption that, when the statute of limitations has once run, the debtor will refuse to revive the debt by a new prom- ise, or interpose the defence of the statute in an action to recover it. " But in the contract of life insurance, it is enough that the parti/ effecting the policy had an insurable interest, at its incep- tion, and it is not required that that interest should continue and exist at the time of the death of the person, whose life is insured, to entitle the holder of the policy to recover. — Policies of insurance, against fire and marine risks, are properly contracts of indemnity ; they are so in terms ; but it is otherwise with life policies. The contract, says, Parke B., in Dalby vs. The India and London Life Assurance Com- pany, (28 Eng. Law and Eq., 312), commonly called ' life assurance, when properly considered is a mere contract to pay a certain sum of iponey on the death of a person, in con- sideration of the due payment of a certain annuity for his life ; the amount of the annuity being calculated in the first instance according to the probable duration of the life.' The court added, ' this species of assurance in no way resem- bles a contract of indemnity.'' Indemnity being the general principle, which gave rise to fire and marine insurance, by a mistaken analogy such a principle was at one time recognized in life insurance. This recognition grew out of the decision in Godsall us. Boldero, (9 East, 72), decided in the King's Bench, in 1807, which was followed and adopted by text writers on assurance, both in England and in this country, but which was overruled on error, to the Exchequer Chamber in 1854, in the case of Dalby vs. The India and London Life Assurance Company, supra. " In the latter case it was held, that a life policy was not in OP INSURANCE. 537 its nature a contract of indemnity, but was, what it purports to be on its face, a contract to pay a certain sum in the event of death ; and if made by a person liaving an interest in tlie duration of the life, it was sufficient, to make it vahd in point of law, that that interest existed at the time of making the policy. It seems remarkable to me that any other view should be taken of the question. The contract is not, to make any loss good, or to make compensation. The debt is not insured. It is an absolute contract to pay, not the amount of a loss or damage arising from a death, but a speci- fied sum of money upon the termination of the life insured." 27 New York, 283, (1863). From the doctrines enunciated by the Supreme Court of Massachusetts, in Loomis vs. Eagle Life and Health Ins. Co., and similar views expressed in other modern cases, it seems evident, that the courts are not now disposed to limit the re- covery of one sueing on a life policy to mere ptt««/fl;7/ in- demnity. In a recent case in New Jersey, it was held that a policy of life insurance is not a contract of indemnity, but a con- tract to pay a given sum on the happening of a particular event. Trenton M. L. Ins. Co. vs. Johnson, 4 Zabriskie, 276. See also Miller vs. Eagle Life and Health Lis. Co., 2 E. D. Smith, (N. Y.), 268. In the case last cited. Judge Woodruff said, " An insur- ance on a life, made in good faith, where there is reasonable expectation or high probability of gain from its continuance, or of loss from death, is valid. Third. Of Warranty, Representation, and Concealment. The definitions of warranty, representation, and conceal- ment, have been given as applicable to the contract of fire insurance ; and the questions, whether a representation is material or not, and what amounts to a material conceal- ment, depend upon the same principles as if the same state- ments or concealments had been made in reference to a fire policy. (See Notes on a Fire Insurance Policy, clauses re- lating to their several heads. Ante). 538 OF INSURANCE. A warranty, it will be remembered, in whatever form it is created, is a " condition precedent," and no contract exists, or at least none can be enforced, unless it be literally com- plied with. Of course, the party obtaining insurance should exercise the greatest care in making them. Most of the forms of application furnished by life insurance companies contain in connection with a series of questions to be an- swered, some by the insured, some by his next friend, and some by an examining physician, a clause of warranty, es- pecially making all the answers warranties : to this the at- tention of parties procuring insurance should be given. The questions aslted are very minute and particular^ and at the same time are in their scope, broadly general : if carefully and truly answered, there is little reason to apprehend diffi- culty in the final collection of the policy, if it should become necessary to institute legal proceedings for that purpose. If the insured has any doubt, he shoiild carefully avoid giving a positive answer which will bind him as a warranty, but sliould add, " to the best of my knowledge and belief," or words equivalent, which limits the effect of the answer to a stipulation for the honesty and good faith of the applicant ; thereby rendering it a representation, in reference to which it is only requisite that there be perfect good faith and simple honesty. The usual representation that the person to be assured is in good health, is to be taken with reference to the common ideas of men as to what constitutes " good health," and is never held to mean perfect freedom from all symp- toms or seeds of disease ; it cannot be defined with exact- ness, but a jury must judge of it upon the evidence, whether the life was rendered unusually precarious, by any defect of constitution or of health, not necessarily amounting to spe- cific disease, which would tend to shorten life. It has been held in England, that dyspepsia, while rendering its victim very uncomfortable to himself, (and sometimes to others), ■was not a disease, which would constitute a breach of war- ranty that the party was in good health. Practically, con- sumption is most conclusive against the insurable condition of an applicant, and it is, therefore, the disease against which OF INSURANCE. 639 the insurer is most anxious carefully to guard. The ques- tions, therefore, which relate to the symptoms of it are framed with great care, to draw out a full statement of any tendencies in that direction ; hut here, as in all cases of answers to specific questions, only good faith is required, unless the party framing the answer chooses to make it a warranty. In all cases of doubt, care should be taken to avoid a warranty, and the answer should either be qualified as above suggested, or the insertion of the clause should be objected to, as, if controverted by the insurers, the proof de- volves upon the insured, and it may be inconvenient if not impossible for the representatives of the assured, or the assignee of the policy, to substantiate them if an action shall be brought upon the policy. It has been suggested, (Angell on Fire and Life Insurance, Section 309), that, " it is desirable that the insurance office should, if possible, be satisfied in the first instance upon some points, and that these should, be admitted upon the policy. The age of the party, which is capable of easy proof, is the only fact usually admitted, and this admission is said to in- crease considerably the marketable value of the policy : but there is no reason why, in many cases, the existence of the interest, where the insurance is effected by a third person, the correctness of the references, and the fact of the party having had the small-pox or cow-pox, should not likewise be admitted." It is possible that some admissions of that sort might use- fully be made upon policies, but, as the business is now done, it may well be doubted, whether it is not as well for the com- panies to be allowed to call for proof of all facts necessary to make a prima facie case, as to trust to the discretion of agents, who are naturally anxious to secure risks, and are necessarily obliged to rely very much for their facts upon the statements of parties whose acquaintance they make for the first time when the insurance is applied for. Conclusively to bind the insurers by agreements made at the inception of the risk, would be as useful in fire and marine insurance as in that upon lives, and to render it desirable and beneficial 640 OP INSURANCE. would require some radical changes in the mode of effect- ing insurance, which are not likely to be brought about at present. Careful attention should be given by the assured to the precise question asked or declaration made, as the form of a statement is sometimes entirely controlling of its construction. As, where the declaration stated that the party had not "been afflicted with," nor was "subject to" fits. It was held not to mean that he had never had a fit, but that he was not a person " habitually" afflicted with them, and the policy was held not to be vitiated by the fact that the party whose life was insured had, several years before, in consequence of a fall, had within a short period of time two epileptic fits, which were not repeated subsequently. It will be readily seen, that this case was decided upon the form of the state- ment, and if the allegation had been that the party had never had a fit, the decision must necessarily have been different. So, if an exception in the policy is in the words, " if the in- sured shall die hy his own hand," the construction may be quite different from that called for by a clause excepting from liability cases in which the insured shall die by " sui- cide.^' If the question is general, as, whether the party to be in- sured has ever " spit blood," the answer should give the fact if there has been a single instance of such trouble, unless it proceeded clearly and without doubt from some cause entirely local and transitory, as the pulling of a tooth or the acci- dental biting of the tongue or lips. In the case of Geach vs. Ingalls, 14 Meeson & Welsby, 95, it was stated in the declaration, which was incorporated in the policy, that the person to be insured was not " afflicted with" any disorder tending to shorten life, that he had not at any time been afflicted with insanity, rupture, gout, fits, apoplexy, palsy, dropsy, dysentery, scrofula, or any affection of the liver, and that he had not had any spitting of blood, consumptive symptoms, asthma, cough, or other affection of the lungs. Upon the trial of an action brought upon this policy, it appeared that the insured, some four years before OF INSURANCE. 641 its date, had spit blood and exhibited other consumptive symptoms, and that he died of consumption three years after the insurance was effected. The jury was instructed, that it was for tliem to find, whether, at tlie time of making the statement, the party had such a spitting of blood and such an affection of the lungs and inflammatory cough as would tend to shorten life. A new trial was granted by the court of exchequer, on the ground that this was a misdirec- tion. In delivering the opinion of the court of exchequer, the chief baron said, " By the expression ' spitting of blood,' is no doubt meant the disorder so called, whether proceeding from the lungs, the stomach, or any other part of the body, still, however, one single act of spitting of blood would be sufficient to put the insurers on enquiry as to the cause of it, and ought, therefore, to be stated." Another member of the court observed, " I have no doubt that if a man had spit blood from his lungs, no matter in how small a quantity, or even had spit blood from an ulcerated sore throat, he A^ould be bound to state it. The fact should be made known at the ofiice, in order that their medical adviser might make enquiry into its cause." The opinion of Alderson B. contains some useful sugges- tions, and is quoted by Angell, in commenting upon this sub- ject, as follows : " My Lord Denman certainly does not ap- pear sufficiently to have called the attention of the jury to the distinction between those disorders, respecting the exis- tence of which at the time of executing the policy the as- sured was called on to make a specific declaration, and tlioso which might have formerly existed. By ' spitting of blood' must no doubt be understood a spitting of blood as a symp- tom of a disease tending to skorten life : the mere fact is nothing ; a man cannot have a tooth pulled out without spit- ting blood. But, on the other hand, if a person has an habitual spitting of blood, although he cannot fix the partic- ular part of his frame whence it proceeds, still, as this shows a weakness of some organ which contains blood, he ought to communicate the fact to the insurance company, for no one can doubt that it would most materially assist them in de- 542 OF INSURANCE, ciding whether they should execute the policy; and good faith ought to be kept with them. So, if he had had spitting of blood but once, but that once was the result of the disease called spitting of blood, he ought to state it ; and his not doing so would probably avoid the policy. Again, suppose this man had an inflammation of the lungs, which had been cured by bleeding ; many physicians would perhaps say that it was an inflammation of the lungs of so mitigated a nature as not to tend to shorten life ; still, that would be no answer to the case of the defendants, for it is clear that the company intended that tlie fact should be mentioned. As to the word ' cough,' it must be understood as a cough proceeding from the lungs, or no one could ever insure his life at all : and in- deed it is so expressed in the policy, — ' cough or other affec- tion of the lungs.' Again, it is obvious, that the insurance company meant to guard against the disease of dysentery. Now a man may have had a dysentery and been cured of it, still the office should know of the circumstance ; and, indeed, that disorder may have been mentioned by name, as being one of a nature likely to return. All these instances show, that it was not intended to restrict the ' statement of the as- sured to disorders having a tendency to shorten life at the moment of executing the policy : what the company de- manded was, a security against the existence of such diseases in the frame. Where the party insured was troubled with spasms and cramps from violent fits of the gout, which are not uncom- mon symptoms of that complaint, but at the time the policy was taken out was in as good health as he had been for some time before, and was not then laboring under an attack of gout, a warranty that he was (in " good health" was held to have been complied with ; the fact that he was liable to gout having been communicated to the insurers and no warranty made against it. Lord Mansfield in that case observed that, " a warranty of good health at the time can never mean that a man has not the seeds of disorder : we are all born with the seeds of mortality in us." Angell on Fire & Life Insur- OP INSURANCE. 643 aiice, § 313. See also Willis vs. Pole, 2 Park on Ins., 935, 8 ed. ; also, Aveson vs. Kiunaird, 6 East, 188. A question is usually asked respecting the medical attend- ant, and it has been held that where the enquiry is, " who is the usual medical attendant?" the answer must give the name of the person who, at the time the policy is issued, was in the habit of attending the party. Occasional or accidental advice from another physician will not support the warranty, that he is the usual medical attendant ; nor will it be proper for the answer to refer to one who was formerly in attendance but has been superseded by another person. See 6 Bingham, 214 ; Huckman vs. Fernie, 3 M. & W., 505 ; Maynard vs. Rhode, 5 Dow. & R., 266. Where the reply was, " I have never had occasion for a doctor ; sometimes I have taken Harvey's quack pills, but Mr. V. knows as much of me as any man," and the agent, in drawing up the declaration, stated that Mr. V. was the medical man who usually attended the party to be insured, and this declaration was signed by the plaintiff, he being a third party procuring an insurance on his interest in the life insured : it appeared that Mr. V. had not attended the party for nearly twenty years, but that he had occasionally been visited by a quack called Dr. Harvey, of which circumstance the plaintiff was not aware. Held, that it was no matter whether Dr. Harvey was a good medical attendant or not, he was the person actually attending, and that the circumstance of the plaintiff's being ignorant of the error did not affect the question, but the policy was void. Everett vs. Des- borough, 5 Bing., 503. If one has no medical attendant, that fact should be stated, as it might naturally suggest the question, who attended him last. A condition, inserted in the certificate of renewal, that the insured was then in good health, is to be construed by the standard of health existing at the time of the original pol- icy, and the description of the condition and ailments con- tained in the declaration and ailments on which it is founded. Where the insured at the time of the renewal is not afflic- 544 OP INSURANCE. ted with any disease, other than those mentioned in the original declaration, which tends to shorten life or increase' the risl^, and those diseases have not become so aggravated as to make his condition substantially different from -a^hat it was at the date of the prior policy, he is in good health, within the meaning of the parties. Peacock vs. The New York Life Insurance Company, 20 N. Y., 293. Where the insurer pleads the falsity of representations, as to the health of the party whose life is insured, evidence is admissible from the plaintiff, as to his health prior to the ap- plication for the policy. The written statements in the application had stated that the health of the party to be insured was good, and that he had not been since his childhood afflicted with liver complaint or general debility. This was disputed, and it was upon this ground, and for the purpose of proving that the representa- tions were true, that the evidence was admitted. Rawls vs. The American M. L. Ins. Co., 27 N. Y., 282. But the admissions of such party (the policy being pay- able to a third party, who was the plaintiff), made after the plaintiff obtained the policy, that his habits were intemperate were rejected. So also, it was held inadmissible, to prove that a person addicted to the use of. intoxicating drink was not regarded, by persons engaged in the business of life in- sm'ance, as an insurable subject. In the trial of that case, a person, who had signed written statements in respect to the health of the party, stated as a witness, that he had no recol- lection of having done so : it was held competent for the plaintiff to prove, that such statement was read to him, for the purpose of repelling any presumption of fraud in obtain- ing the statement. , It was also held competent, to prove by a physician who made a written statement, the truth of which was in issue, that he made the statement in good faith ; and that the plain- tiff is entitled to give in evidence all the papers on which the insurers acted when they granted the policy. But it was held, not to be proper to call for the opinion of physicians, who had made statements in respect to the party insured, OP INSURANCE. 545 whetlier, if tlicy had known that he habitually indulged in intoxicating drink, they would have regarded that practice as impairing his constitution, or of the examining physician in behalf of the insurers, whether, with like knowledge, he would have regarded the life as healthy and the risk good. A statement procured by the insurer, in respect to the life insured from a third party, named by the person whose life is insured, but the contents of such statement not known to him or to the plaintiff, and not furnished as a part of the ap- plication, is not a warranty, lb. When all questions put to the parties desiring the insur- ance are fully and truly answered, it is not a fraudulent con- cealment if they omit to state facts, though material to the risk, not called for by any specific or general question. lb. Applications for life insurance frequently contain a clause in which the assured states that, "there is not within his knowledge any circumstance or information touching his past or present state of health or habits of life material to the risk, or with which the directors ought to be made acquainted ;" but it has been held, that the withholding of such informa- tion, even where no such clause is within the application or policy, would annul the contract. Angell on Fire and Life Insurance, § 317. But see Eawls vs. American M. Life Ins. Co., siipra. The undertaking of insurance in all its branches is very much a contract of speculation ; and to enahle the insurer to form a reasonably correct estimate of the risk to be incurred, and fix the premium which he ought to receive, a knowledge of all material facts is most essential. These necessai'ily are mainly within the knowledge of the assured ; and, as we have before said, the obligation rests upon him, to communi- cate eveiy circumstance with which he is acquainted, which would be likely to influence the judgment of the underwriter in refusing the risk or fixing the premium. He is not only bound to act in good faith and with candor, but with care and diligence ; and if, from neglect, he omits to mention any fact which might fairly influence the judgment of a reason- able man, in refusing the risk or estimating the premium, his policy may be thereby rendered void. 35 546 OF INSURANCE. The real question is, was the omitted fact or circumstance material ; and not, did the party act in good faith, and hon- estly believe it to he immaterial. A contrary doctrine, as may easily be seen, would not only make the information, which the insurer has a right to be put in possession of, dependent upon the Judgment of the applicant, but in case he should purposely withliold facts which he believed to be material, it would in most cases be extremely difficult to show that he so deemed it material. It is not necessary that there should be what would technically be called concealment; and an eminent English judge, in a charge to the jury, says, " I do not choose to use the word concealment, as it may import fraud. The mere non-communication of the facts, if you are of opinion that they are material, will avoid the policy." But this can hardly be true, for when the insurers have asked all the questions which they deem material, the pre- sumption is, that the party is not expected to go beyond a fair and full answer to those questions ; and to render a pol- icy void for non-communication, beyond full answers to all questions asked, there must be something amounting to a concealment of a material matter, which was in the mind of the assured, and which \\q purposely withheld. See Rawls vs. American M. Life Ins. Co., supra. The omission to state that the assured (who died of dis- eased lungs in about a year after the issue of the policy) had been twice alarmingly ill, and had afterward become much emaciated, and suffered from a cough, on account of which she was attended by a medical practitioner who was not re- ferred to, was deemed by the court such a matter as the judge ought to have expressly submitted to the jury, though she had apparently recovered before the issue of the policy. Monson vs. Muspratt, 4 Bing., 60. The insurers have a I'ight to know who was the last phy- sician in attendance, and therefore, if one has been recently called, whether he is specifically inquired for in the questions or not, he should be referred to, or the question should go to the jury, whether there was such concealment as should avoid tlie policy. OF INSURANCE. 647 Of course, there may be cases in which, for a slight and temporary ailment, a physician not in regular attcntlance upon a party has been called in, and it was not, upon appli- cation for insurance, thought of or mentioned, and in which a jury would find it to have been wholly immaterial. It should, however, be remembered, that the question of mate- riality is not regulated or determined by the event, but if the matter concealed or misrepresented would have affected the rate of premium, or caused a rejection of the application, it will be fatal, even though the party subsequently died from a totally different cause. In the case which has been referred to, (Vose vs. Eagle Life and Health Ins. Co., 6 Cush., 42), it appeared that the insured applied for a policy for $3,000 on his life, at the agency of the defendant's company in Springfield, and signed an application, prepared by the company, which contained questions in reference to the condition and health of the party to be insured, to be answered by him ; the answers to which constituted the information upon which the insurers were to act. The ninth of the questions was, " Have the party's parents, brothers or sisters, been afflicted with pul- monary complaints, or consumption?" to which it was re- plied, that his mother and sister died of consumption. The tenth was, " Has the party or any of his family been afflicted with pulmonary complaints, consumption or spitting of blood ?" which was negatively answered. The seventeenth was, " Is the party now afflicted with any disease or disorder, and what ?" to which he answered, " He cannot say that he is afflic- ted with disease or disorder, but at the present time is troub- led with a general debility of the system." To the question, " Is the party aware that any untrue or fraudulent allegation, or if there shall be any misrepresentation or concealment made in effecting the proposed insurance, it will render the policy void, and that all payments of premiums made thereon will be forfeited ?" he answered affirmatively. In answer to the enquiry for the " name of the usual medical attendant," or, if he had none, " of some other medical person to be refer- red to, for information as to his health," the assured gave the 548 OF INSUEANCE. name of Dr. Lambert, and the name of R. E. Ladd as an " in- timate friend" to be referred to for similar information. Tlie agent called on Lambert and on Ladd. The former not being at home, the assured suggested to the agent to call on Dr. Wood, who had sometimes been employed to make med- ical examinations for the defendants, and who examined the applicant the same day in the presence of the agent, and cer- tified as follows : " I hereby certify that I have examined George F. Pease. The organs of his chest give no indica- tions of organic disease, the air passes through every part of his lungs fi'eely. His physical appearance is good, and has no appearance of chronic predisposition. I consider him a good subject for insurance." The papers were forwarded to the company, and upon their examination by the directors a policy was made out, dated on the same day with the application, and sent to the agent, who delivered it to the insured and received the premium for the first year. It was expressed in the policy that the "application formed a part and parcel of the policy, and if it shall be found, that the said application is in any respect untrue, or that there is any misrepresentation or concealment in the said application, then this policy shall be void and of no effect, and all the premiums paid thereon shall be forfeited to the said com- pany." The case was referred to ai'bitrators to find the facts, who reported that at the time of making the application, the plain- tiff was, in fact, laboring under tubercular consumption, the early symptoms of which had begun to be developed as early as five months previous, and that he died of the same disease within three months after the date of the policy; that he knew of symptoms in his health, which generally indicate the early stages and subsequent progress of that disease, at the date of, and before the application, but that he did not disclose to the agent these symptoms ; that he did not, at the time he made the application, believe he had consumption, though he had reasonable cause so to believe ; and that the statements made by him were not intentionally false, but according to OP INSUEANCE. 549 his belief were true. They also found and reported, that be- fore the policy was made and delivered, so many symptoms of the disease of the insured were known to the agent, as to indicate to a man of ordinary intelligence that he was labor- ing under a pulmonary disease, and 'that he had reasonable cause to believe that the assured was then laboring under such disease. They further reported, that so far as the application and answers contained statements inconsistent with the fact that he was, at the time of the application, laboring under sucli pulmonary disease, which was incurable and what is know!', as tonsumption, such statements were not true ; and that, if the court should be of opinion that the policy and application amounted to a warranty, on the part of the intestate, that he was not then, and for some months previous had not been, la- boring under the disease of consumption or pulmonary com- plaint, the arbitrators awarded and determined that the plain- tiff had not sustained his action : but if the court should be of opinion, that the representations contained in the application, together with the policy, did not constitute a warranty ; and should also be of opinion that, upon the facts above stated, the defendants were liable, the arbitrators awarded anddetermined in favor of the plaintiff, for the amount due on the policy. In discussing and applying the principles of law applicable to those facts, the court said, " It is the duty of the insured, to disclose all material facts within his knowledge. Although specific questions, applicable to all men, are proposed by the insurers, yet there may be particular circumstances, affecting the individual to be insured, which are not likely to be known to the insurers ; and the concealment of a material fact, when a general question is put by the insurers at the time of effect- ing the policy, which would elicit that fact, will vitiate the policy. Applying these principles of law to the present case, the conclusion is inevitable, that the plaintiff is not en- titled to recover. Upon the facts in the case it is not import- ant, whether the proposal or application is considered as a warranty or representation. As a warranty, it was so mani- festly untrue, and as a representation, there was manifestly 550 OP INSURANCE. SO material a misrepresentation, that, in either view, the pol- icy is invalid. The fact is established, that, at the time of making the proposal and issuing the policy, the insured was rapidly declining in a confirmed consumption, and had been so declining for five months previous, and continued to live but about two months after this time. Yet, in answer to the loth interrogatory, the insured expressly denied that he or any of his family had been afflicted with pulmonary com- plaints, consumption or spitting of blood. In answer to the 17th interrogatory, the insured said that he could not say that he was afflicted with any disease or disorder. " It is immaterial that the insured did not suppose himself in a consumption: the fact was so, and the statement was man- ifestly contrary to the fact, which was a most material and con- clusive fact. The fact of the general debility of the system, stated by the insured, was not important in the manner in which it was stated ; as it might arise from a variety of causes not materially affecting the risk, and would not, therefore, by any means, give the insurers the information wanted. The insured was asked directly, whether he was at the time affected with any disease or disorder, and what: to which he answered, that he could not say that he was afflicted with any disease or disorder : but he could have stated the symptoms of consump- tion which he had, and which he knew he had, and which he had had for five months previous, and which were certainly most material and important to be known by the insurers. It is believed that omissions or concealments less important than this, and without any intentional fraud, have been held to avoid policies upon life. " But it is not necessary to make this any part of the ground of the decision in this case ; as the answer to the tenth interrogatory is so manifestly and most materially unti-ue, that, whether regarded as a warranty or a represenf>- ation, it must avoid the policy. " The knowledge which the award finds, that the defend- ant's agent had, in regard to the situation of the insured, cannot be material. The agent did not, and could not, make the contract. He received the application and forwarded it OF INSURANCE. 551 to the directors of the company, wholly upon the basis of the application, which is expressly declared, both in the applica- tion itself and in tlie policy, to form a part of the policy. " Both the application and policy are particularly ex- plicit and strong in this respect. It is fartlicr set out and declared, in the application signed by the insured, that if any fraudulent or untrue allegation, misrepresentation, or con- cealment, is contained in the proposal, all moneys which had been or might be paid, on account of such assurance, shall be forfeited to the said company, and the policy shall be void. " The insured further declared in his proposal, that he was aware that any untrue or fraudulent allegation, misrepresen- tation or concealment, made in effecting the proposed insur. ance, would render the policy void, and that all payments of premiums made thereon would be forfeited. The instruments executed by the parties, in the present case, are certainly pe- culiarly strong and specific ; binding the insured to the utmost care and caution in his statements and representations, and to the most careful and scrupulous disclosure of everything material to the risk." In a recent case in Connecticut, Kelsey m. Universal Life Ins. Co., the application was by a married woman, on her own life, for the benefit of her husband ; no question was made as to the plaintiff's right to recover, on the ground of any want of interest of a husband in the life of his ^dfe, althougli it appeared that she was continuously in such a condition of illness as to be an expense, and the husband could have had no 'pecuniary interest arising out of income. The application was dated November 22, 1865, and con- tained twenty-one questions ; the following with their answers became material : 4th. " Name all the physicians whom you have consulted, or who have attended you during the past year ? " No answer was given to this. 10th. " Are you at this time in your ordinary state of health ? " Answer, "Yes." 11th. " Have you ever had any of the following diseases, (among others), bronchitis, consumption, inflammation of the lungs, neuralgia?" "If so, state particulars of their character and duration." — Answer, " Notliing except a sliglit 652 OP INSURANCE. broiicliial difficulty in the winter." 12th. " Have you had any serious iUness, local disease," &c. And " if so, of what nature, and how long since ? " Answer, " Nothing except as above." l-3th. " Have you, to the best of your knowledge or belief, now any disorder, or any infirmity or weakness tending to impair your constitution?" Answer, "No." 18th. " State the name and residence of your usual medical attendant? " Answer, " G. B. Hawley, when any." 20th. " Are the above named medical attendant and friend able to give information as to your present and general state of health ? " Answer, " Yes." 21st. " Has any material fact bearing upon your physical condition and family history been omitted in the foregoing questions ? " Answer, " No." The application was signed by the applicant and closed with the following declaration and agreement : " -S is hereby declared, that the above are fair and true answers to the fore- going questions ; and it is acknowledged and agreed by the undersigned, that -this application shall forma part of the contract for insurance, and that any untrue or fraudulent answers, any suppression of facts, &c., shall and will render the policy null and void, and forfeit all payments made thereon." The policy was in the common form, and was payable to the "legal holder" on " the 23d day of November 1886, when the above named person, &c., shall have attained tlie age of fifty-five years, or, should she die previous to her attaining that age, in thirty days after due notice and proof of death, to the legal holder as aforesaid." There was added to the policy, and as a part thereof, as follows : " This policy is issued and accepted by the insured and the holder thereof, on the following express conditions and agreements : — the first and sixth were the only ones that became material, — the first was as follows : " That the statements and declarations made in the application for this policy, and on the faith of which it is issued, are in all respects true, and without the suppression of any fact, relating to the health or circum- stances of the insured, affecting the interests of the com- pany." Sixth, " That in case of the violation of the fore- OP INSURANCE. 553 going conditions, or any of them, or of the insured dying by his own hand, or in consequence of a duel, or in violation of the laws of the United States, or of any nation, State or province, this policy shall become null and void." It ap- peared that the assured had had premonitory symptoms, of disease of the lungs some years before, and was examined by several physicians with reference to the condition of her lungs, and that, for some months prior to the issue of the policy, she had been under medical treatment by a physician other than Dr. Hawley. It was objected that, as the action was on behalf of one who was a legal holder of the policy and not a representative of the assured, her declarations as to her health, not made in the presence of the plaintiff and not known to him, were not admissible against him ; but the court admitted them, as tending to show fraud in the representations, and as contra- dicting the statements made in the application. It appeared that, for the year previous to her taking out the policy, she had been more or less ill, that she had stated to neighbors that she was " unable to walk up stairs, to cat much, or to lie iipon her right side." Three days before the date of the application she wrote to her mother as follows : " I am not able to do but very little, but have a good deal of waiting upon, and never expect to do very much more, if I should live very long, and that is uncertain ; the doctor thinks my lungs are healing ; he thinks if I live till spring I will get well. I was dangerously sick with congestion, while with the doctor, so much so, the doctor came near telegraph- ing to Otis, and would, but knew he was coming the next day. I had one severe attack before. It is nothing for me to leave this world, but hard to leave my children to a cold world, but I will trust in the Lord always ; He doeth all things well. I will sadden no one with my troubles, for I never shed a tear before any one, and never show anxiety about any thing, — soon enough when the time comes. Sor- row comes to all sooner or later. Mr. Neal is dead and gone, little did I think he would go before me," &c. Tlio court instructed the jury as follows : " The defences to this 554 OP INSURANCE. suit are, first, fraud ; seoond, assuming that the declarations of Mrs. Kelsey referred to in the policy are a warranty, a breach of his, the plaintiff's, warranty ; third, misrepresen- tation and concealment, which last are perhaps more properly included in the first, to wit, fraud. So far as this is con- cerned, it matters not what the contract may have been ; for fraud will alv^ays avoid a contract. Whenever the party, who has obtained a contract by fraud, brings an action to enforce it, it is competent for the other party, to show the fraud and avoid the action. " It is matter of defence, and the defendants must estab- lish it ; for it is to be proved and not presumed. To consti- tute the fraud, knowledge must be proved ; for where there is no knowledge there can be no fraud. So that a person may ignorantly and innocently state what is not true in fact, and yet not be chargeable with fraud. " Fraud, however, differs from the breach of warranty, which is also set up by way of defence : and here a distinc- tion is to be observed between a breach of warranty and mere misrepresentations. Warranties and misrepresenta- tions, especially the latter, pertain more particularly to the class of contracts, of which the subject of this suit is one ; this feature being common to both, that either a breach of warranty, or misrepresentation on a material point, will viti- ate the policy. " To use the definition of the books, the representation is part of the preliminaiy proceedings which propose a contract, and the warranty a part of the contract as it has been com- pleted. " So far as the misrepresentation is concerned, using the term in its technical sense, whether it is fatal to recovery de- pends upon the fact whether it is material or immaterial to the risk undertaken. In the case of a warranty, the thing must be exactly what it is represented to be. " A warranty in insurance is a stipulation on the face of the policy, on the literal truth or fulfilment of which the validity of the entire contract depends." And yet, to quote further, " although, as a general rule, it is true that a paper OF INSURANCE. 555 not attached to a policy, does not form part of it, yet it may be that a paper not so attached will be made a part of it, and amomit to a warranty, by the express terms of it." That is, that the policy may so speak of another writing as to make it a part of it, though not actually embodied in it. " Applying this principle to the case under consideration, — if the application of Mrs. Kelsey, and her answers to the questions therein proposed, are part of the policy, or are so referred to as to be recognized and become part of it, they become warranties, tliat is to say, the plaintiff by accepting the policy warrants that the statements, which are the con- dition and consideration of the policy, are true. So far as the contract is concerned, they become conditions precedent, so to speak, which he must show have been complied with, before he can recover on the contract. " With reference to the policy of insurance under consid- eration, for the purposes of the case, the court instructs you that the conditions and agreements mentioned in the policy, having reference to the application, which was a part of the consideration on which the policy was issued, are icarranties of facts, which must he 'proved true in all particulars. " If the court is correct in its view of the law as applica- ble to this case, there are but two questions which need occupy your attention. First, Have the defendants established the fraud ? Second, Has the plaintiff proved the truth of the matters he undertook to warrant ? For, if fraud is found, or a breach of warranty, there can be no recovery." The jury rendered a verdict for the defendants. The case was carried to the Supreme Court, on motion for new trial. Chief Justice Hinman, iu delivering the opinion of the court upon the questions arising out of the charge which we have quoted, said, " Again, it is claimed that the court erred in admitting in evidence certain declarations and letters of Mrs. Kelsey, made and written about the time the policy was issued. In her application for the policy, she had represented herself in the usual state of health ; as having never had any disease except a slight bronchial difficulty in the winter, nor any serious illness or local disease, nor any 556 OP INSURANCE. disease tending to impair her constitution, and that when she had any medical attendant it was Dr. Hawley ; and the declaration and letters received in evidence tended strongly to contradict these statements. The claim of the defendants was, that the statements in the application were untrue, and known to be so by the plaintiif, and that the policy was therefore obtained by fraudulent representations in respect to Mrs. Kelsey's health, and these declarations and letters, contradictory to her statements in the application for insur- ance, were received for the purpose of proving the fraud. The ruling on this point is fully sustained by the case of Aveson vs. Kinniard, 6 Bast, 188. That was also an action on a life policy on the plaintiff's wife, and, as in this case, the wife had made representations, in her application for the policy, in regard to her health, which were allowed to be dis- proved or contradicted by her subsequent declaration to a witness. The difference between the two cases in this re. spect seems to be, that in the case in Bast the declarations proved were made shortly after she had made her statements, to a medical man, in order to procure a health certificate, while, in the case under consideration, the declarations and letters were made and written just before, or not long before, her statements in the application for insurance. But this surely is unimportant, since it is equally competent to prove the condition of the life insured, before and after the time of the insurance, with a view to show what its condition was at the time ; and all that is required is, that the declarations and acts proved should not be so remote from the time as to shed no light on the health of the party at the time. " One important ground on which such declarations are received is, that they are part of the res gestce. " The subject of inquiry is, the health of the person whose life is insured, at the time the insurance is effected ; and no one can have so perfect knowledge of that, as the person himself. Medical men always arrive at their conclusions, in respect to health, by information in part derived from what their patients say ; and what is said by them, under circumstances which preclude any suspicion of collusion, is OP INSURANCE, 657 as fairly a part of the res gestce in respect to health, as symp- toms learned from other sources. " But the court charged the jury, ' that the conditions and agreements mentioned in the policy, having reference to the application which was a part of the condition upon wliich the policy was issued, are warranties of facts, which must be proved true in all particulars,' and the plaintiff insists that the charge is incorrect, in point of law. In the body of the policy, under the heading of conditions and agreements, is this first condition, as to the application : 1. That the state- ments and declarations made in the application for this policy, and on the faith of which it is issued, are in all respects true, and without the suppression of any fact relating to the health or circumstances of the insured, aifecting the interests of this company. The reference here to the application is as clear and precise as in the case of Jennings vs. Chenango Mutual Insurance Company, 2 Denio, 75, and the facts stated in the application in that case were held to be warranties. It is true, that in that policy the reference to the application alluded to it as forming a part of the policy, while, in the case under consideration, the words are, that the policy is made on the faith of the application, and that the statements in it are in all respects true. But we think this stipulation makes the truth of the material facts a matter of contract obligation on the part of the insured, and conditions upon which the policy was issued, and on the truth of which it was only to bind the company, as if the same had been em- bodied in the policy itself. And this has been the uniform doctrine of the court. " As remarked by Judge Button, in the Woodbury Savings Bank vs. Charter Oak Ins. Co., 31 Conn., 517, it has main- tained the integrity of contracts, and the necessity of a strict compliance with all conditions affecting their validity. And he refers to several of our insurance cases, in which state- ments contained in applications for insurance have been held, with great uniformity, to be warranties. Judge Sanford, in the case of Hood vs. Hartford Fire Ins. Co., 13 Conn., 533, perhaps states the law as strongly as it is any where laid 558 OP INSURANCE. down, and, it may be said, goes to tlie verge in his statement of it. Yet the doctrine as lie states it, though somewhat questioned by Judge Ellsworth, in the Glendale W. Co. vs. Protection Ins. Co., as applicable in all cases to Fire Policies, has never been overruled. While, therefore, we are satisfied that the charge of the court was correct in this case, it is proper to remark that, whether the statements in this appli- cation be regarded in the light of technical warranties or be treated as mere representations of fact which must be sub- stantially true, is not, in our opinion, very important. The facts stated in the application, regarding the health of Mrs. Kelsey, must be admitted to be important and material to the risk, and, therefore, if untrue, would avoid the policy as fully as if they are considered as technical warranties. If untrue, as we have no doubt the jury must have found them to be, the insured, and especially his wife, who was his agent to make the application, must have known them to be so. And as they were not disclosed to the company at the time the insurance was effected, the insured is justly charged with fraud, in procuring an insurance upon such a life. And the application itself provides expressly, that any suppression of facts, or any untrue or fraudulent answers, shall render the policy void. And it would seem, that there can be but one opinion on the question of frauds, if Mrs. Kelsey's letter to her mother, but three days previous to her application for the policy, is to be regarded as tme. In that letter, she ex- pressly states that the doctor says her lungs are heaUng, and that he thinks if she lives till spring she shall get well. And the whole letter indicates that, in her opinion, there was doubt as to her living till spr'ug, in consequence of the con- dition of her lungs. Now, if it be admitted that her hopes of final recovery were so strong, as to induce her to say in lier application three days after, that she only had a slight bronchial difficulty in the winter, how could the husband, knowing, as he must have done, what the doctor said of her lungs, allow her to sign an application for insurance upon her life, in which it is said she never had had any serious ill- ness. Without, therefore, alluding to the fact that, in this OF INSURANCE. 559 very letter, she speaks of another doctor than Dr. Hawley, under whose treatment she had been, we can have no doubt the jury must have found the fraud submitted to them. We are, therefore, satisfied that the case was correctly put to the jury, on the question of fraud, as well as upon the question of warranty ; and that it was correctly disposed of by the jury. We do not advise a new trial." One assured signed a declaration stating " that his age did not exceed twenty-nine years, that he had had small-pox or cow-pox, and had not had certain other specified diseases, that no proposal to insure his life had been declined at any office, that he was in good health and ordinarily enjoyed good health, and that he was not aware of any disorder or circum- stance tending to shorten his life, or to render any insurance on his life more than usually hazardous, unless something stated in answer to some questions which preceded the dec- laration might be so considered." In an action on the policy by the administrator of the as- sured, it appeared that two years previous, and again a year thereafter, the deceased had had two successive and severe billious attacks. Medical men had expressed different opin- ions as to the effect of these attacks upon his health, but it did not appear that the unfavorable opinions had ever been communicated to the assured. The judge instructed the jury that, " if the assured hon- estly believed, at the time he made the declaration, that the billious attacks had no effect upon his health, and did not tend to shorten his life or to render an insurance upon it more than usually hazardous, the fact that be was aware of those attacks, even though (without his knowledge) they really had such a tendency, would not defeat the policy." The direction was lield to be correct. Jones vs. Provincial Ins. Co., 3 Com. Bench, (N. S.), 65. Where rei)rcFcntations in regard to his health are made by a husband, whose life is insured by his wife for her sole use, which representations are made part of the policy, subsequent declarations, in regard to his health, while negotiating for a surrender of the policy, are not admissable in evidence in a 560 OP INSURANCE. suit brought by the wife on the policy. Fraternal M.- Life Ins. Co. vs. Applegate, 7 Ohio, (N. S.), 292. Statements in an application for a life policy, upon the faith of which the policy is expressed to be made, with a stipulation that, if they shall be found in any respect untrue, the policy shall be void, are warranties, and if untrue, even in a point immaterial to the risk, will avoid a policy. Miles vs. Conn. Mut. Life Ins. Co., 3 Gray, 580. Where, in a policy of insurance upon life, the representa- tion was made that the^insured was sober and temperate, and in good health, if the representation was true at the time it was made, the subsequent habits of the assured will be no bar to a recovery upon the policy. Reichard vs. Manhattan Ins. Co., 31 Mo., 518. One T. eifected a policy on his life, with a condition thereon indorsed that, " in case any fraudulent or untrue statement was contained in any of the documents addressed to, or de- posited with the company, in relation to the within assur- ance, whether by the payee, the assured, or any referee or other person, then the policy should be void." Among the documents referred to, was one called a " personal state- ment," which contained, amongst others, the following ques- tions : " 4. Whether he had, since infancy, any, and what, other disease (than those enumerated in a preceding ques- tion) requiring confinement ?" " 8. How often has medical attendance been required ?" " 9. How long did such attend ance continue ?" " 10. For what disease or diseases?" " 11. For what period confined to the house or bed ?" " 12. How long is it since these circumstances occurred ?" " 13. Name, and address of the medical attendant or attendants employed on occasion of such disease ?" The answers to these ques- tions were as follows : To the 4th, " No ;" to the 8th, " Two years ago ;" to the 9th, " About one week ;" to the 10th, "Disordered stomach ;" to the 11th, "A week ;" to the 12th, " One year ;" and to the 13th, " Dr. R., Rock Ferry." It ap- peared that the attendance of Dr. R. was in December 1855 ; that in January 1856, the assured had had a relapse, when ho wasattoiidcd by one Dr. C. ; and that in February, while OF INSURANCE. 661 at Birmingham, he had another severe illness, when his life was despaired of, and on which occasion he was attended by three other medical men. Held, that the untruth of the above answers avoided the policy, notwithstanding the jury found that no material information had been withheld from the insurers, and it was conceded that there was no inten- tional fraud. Cazenova vs. British &c. Ass. Co., 6 C. B., (N. S.), 437. In a few cases upon life policies, questions of construction have arisen. The words, "settled limits of the United States," have been held equivalent to, " established bounda- ries of the United States," and a party, who was thus re- stricted by a condition of his policy, was held to be at liberty to take the overland route to California, and if he should die in the wilds on the south fork of the Platte, that his repre- sentatives would be entitled to recover. Casler, vs. Connec- ticut Mutual Life Ins. Co., 22 N. Y., 427. The case, how- ever, was settled by a divided court, Selden, Bacon, Denio, Wright and Welles, concurring in tlie above ; and Comstock, Davies and Clerke, dissenting. In Euse vs. The Mutual Benefit Life Ins^ Co., the same court held, that a prospectus, distributed by a Life Insurance Company, and importing that it is careful to prevent forfeit- ures, is inadmissible to vary or control an express provision in a policy for life, by which it is to be determined upon the failure to pay the premium on the first day of each succeed- ing year. 23 New York, 516. In Tayler vs. ^Etna Life Ins. Co., 13 Gray, 434, it was held, that a person whose life is insured by a policy, which permits him to pass by sea between certain ports "on first class decked vessels," does not forfeit the policy by going as a steerage passenger in such vessel. It was held also, that under a policy of life insurance, pay- able in a stipulated time " after due notice and proof of the death," a physician's certificate of death is not an essential part of the proof, unless expressly required by the policy or by a usage of the company made known to the plaintiff before lio took the policy. 662 OF INSURANCE. It was claimed on behalf of the company, that the stipu- lation, that the insured should go on a first class decked ves- sel, required, by necessary implication, that the party should go as a first class passenger on such vessel, and that a steer- age passenger would have been charged a higher rate, or declined by the company. But the court said, they did not know, judicially or otherwise, that life is less safe in the steerage than in any other apartment of a vessel. In a policy of life insurance, made in Boston, and in the application for insurance referred to and made a part of the policy, the assured was described as residing at Valparaiso. The policy contained a printed permission to the insured, to visit certain foreign countries, among which South America was not included. An indorsement on the policy gave per- mission to the insured to reside at Valparaiso, upon payment of a sum not named, leaving a blank for the amount. It was held, that the insured had the right to reside at Valparaiso without further permission or payment ; and that a sum paid by the payee of the policy and agent of the insured, without authority from him or knowledge of the provisions of the policy, for permission for his principal to reside at Valparaiso for one year, did not vary the contract, and might be recov- ered back from the insurers. Forbes vs. American Mut. Life Ins. Co., 15 Gray, 249. Fourth. Of Suicide, and of Death hy one's own hand. Suicide, committed by a person, who understands the nature of the act and intends to take Ms own life, though committed during insanity, avoids a policy of life insurance, which pro- vides that it shall be void if the assured shall die by his own hand. Dean vs. American Mutual Life Ins. Co., 4 Allen, 96. An able and exhaustive opinion was delivered in this case by Chief Justice Bigelow ; "-and he cites, in favor of the re- sult arrived at by the court, some English cases as follows : " So far as the adjudicated cases bear on the question which we have considered, the weight of authority is against the claims of the plaintiffs under the policy. In the ca^e of Bor- radaile i;s. Hunter, 5 Manning & Granger, 639, where the pol- OP INSURANCE. 5(53 icy contained a provision very similar to that found in tlie policy declared on, it was held that the policy was avoided, as the proviso included all cases of voluntary self destruc- tion, and was not limited to acts of criminal suicide. From this opinion there was a dissent by the Chief Justice. In Cleft vs. Schwabe, 3 C. B., 437, a similar decision was made by the Exchequer Chamber, two of the judges dissenting. These cases seem now to have settled the law in England in eonform- ity with the opinion of a majority of the judges. Dufaur vs. Professional Life Assurance Company, 25 Beavan, 602."" He then mentions the fact that a different opinion was arrived at in Breasted vs. Farmers' Loan and Trust Co., 4 Seld., 299. In that case it was held, that a provision in a life policy, that it should be void if the assured " shall die by his own hand," had reference to an act of criminal self destruction, and that the self destruction of the insured, while insane and incapable of discerning between right and wrong, was not within the provision. In this case, it will be seen that the facts differ so widely from the case of Dean, in 4 Allen, that the decisions can hardly be deemed radically opposed to each other. In the first, the deceased " understood the nature of the act, and intended to take his own life ;" while in the second, it is found that he was " incapable of discerning between right and wrong." The two cases, and the cases referred to in them, present a pretty full view of both sides of the question ; but the authority of the case in New York is greatly weakened by the dissent of four out of the nine judges who sat in the cause. In the case of Dean vs. Amer. Life Ins. Co., 4 Allen, 96, it was claimed, on behalf of the plaintitF, that the real cause of the death of the insured was his disease, — insanity, — and that it was not correct to say, that his death was " caused'^ by " his own hand." That his hand was not guided by his will, but by the superior force of disease, and that it was like a case in which the hand was guided and controlled by the superior physical power of another person. The case of Breasted vs. Farmers' Loan and Trust Company was referred 564 OP INSURANCE. to and relied upon by the plaintiifs, while it was admitted that the English cases were opposed to the claims of the plaintiifs. The case was ably argued, and the opinion of the court, as delivered by the late Chief Justice Bigelow, pre- sents so exhaustive a discussion of the subject as to warrant its insertion. He says, " There can be no doubt that the facts agreed by the parties, concerning the mode in which the as- sured destroyed his own life, bring this case within the strict letter of the proviso in the policy, by which it was stipulated that it should be void and of no effect if the assured should ' die by his own hand.' The single question, therefore, which we have to determine, is, whether, on the well settled prin- ciples applicable to the construction of contracts, we can so interpret the language of the policy as to add to the proviso words of qualification and limitation, by which the natural import of the terms used by the parties to express their meaning will be so modified and restricted, that the case will be taken out of the proviso, and the policy be held valid and binding on the defendants. In other words, the inquiry is, whether the proviso can be so read that the policy was to be void in case the assured should die by his own hand, he be- ing sane when the suicide was committed. If these or equivalent words cannot be added to the proviso, or if it cannot be held that they are necessarily implied, then it must follow that the language used is to have its legitimate and ordinary signification, by which it is clear that the pol- icy is void. " In considering this question, we are relieved of one diffi- culty, which has embarrassed the discussion of the same sub- ject in other cases. If the proviso had excepted from the policy death by ' suicide,' it would have been open to the plaintiffs, to contend that this word was to have a strict tech- nical definition, as meaning in a legal sense an act of crim- inal self-destruction, to which is necessarily attached the moral responsibility of taking one's life, voluntarily and in the full exercise of a sound reason and discretion. But the language of the proviso is not necessarily limited by the mere force of its terms. The words used are of the most compre- OP INSURANCE. 565 lieusivG character, and are sufficiently broad to include every act of self-destruction, however caused, without regard to the moral condition of the mind of the assured, or his legal re- sponsibility for his acts. "Applying, then, the first and leading rule by which the construction of contracts is regulated and governed, we are to inquire, what is a reasonable interpretation of this clause, according to the intent of the parties. It certainly is very difficult, to maintain the proposition, that where parties re- duce their contract to writing and put their stipulations into clear and unambiguous language they intend to agree to any- thing different from that which is plainly expressed by the terms used. It is, however, to be assumed that every part of a contract is to be construed with reference to the subject matter to which it relates, and with such limitations and qual- ifications of general words and phrases, as properly arise and grow out of the nature of the agreement in which they are found. Giving full force and effect to this rule of inter- pretation, we are unable to see that there is anything unrea- sonable or inconsistent with the general purpose which the parties had in view, in making and accepting the policy in a clause which excepts from the risks assumed thereliy the death of the assured by his own hand, irrespective of the condition of his mind as affecting his moral and legal respon- sibility at the time the act of self-destruction was consumma- ted. Every insurer in assuniiing a risk imposes certain re- strictions and conditions upon his liability. Nothing is more common than the insertion in policies of insurance of excep- tions, by which certain kinds or classes of hazards are taken out of the general risk which the insurer is willing to incur. Especially is this true in regard to losses which may arise or grow out of an act of the party insured. Such exceptions are founded on the reasonable presumption, that the hazard is increased when the insurance extends to the consequences which may flow from the acts of a person, who is to receive a benefit to himself or confer one on others by the happening of a loss within the terms of the policy. Wliere a party pro- cures a policy on his life, payable to his wife and children. 566 OF INSURANCE. he contemplates that, in the event of his death, the sum in- sured will inure directly to their benefit. So far as a desire to provide in that contingency for the welfare and comfort of those dependent upon him can operate on his mind, he is open to the temptation of a motive to accelerate a claim for a loss under the policy by an act of self-destruction. Against the increase of the risk arising from such a cause, it is one of the objects of the proviso in question to protect the insur- ers. " Although the insured can derive no pecuniary advantage to himself by hastening his own death, he may have a motive to take his own life, and thus to create a claim under the policy, in order to confer a benefit on those who, in the event of his death, will be entitled to receive the sum insured on his life. " Unless then, we can say that such a motive can not ope- rate on a mind diseased, we can not restrict the words of the proviso, so as to except from the risk covered by the policy only the case of criminal suicide, where the assured was in a condition to be held legally and morally responsible for his acts. It certainly would be contrary to experience, to affirm that an insane person can not be influenced and governed in his actions by the ordinary motives which operate on the hu- man mind. Doubtless there may be cases of delirium, or raving madness, where the body acts only from frenzy or blind impulse, as there are cases of idiocy or decay of mental power, in which it acts only from the promptings of the low- est animal instincts. But in the great majority of cases where reason has lost its legitimate control, and the power of exercising a sound and healthy volition is lost, the mind still retains sufficient power to supply motives and exert a di- rect and essential control over the actions. " In such cases, the effect of the disease often is, to give undue prominence to surrounding circumstances and events and, by exaggerating their immediate effects or future conse- quences, to furnish incitement to acts of violence and folly. A person may be insane, entirely incapable of distinguishing between right and wrong, and without any just sense of moral OF INSURANCE. 567 responsii)ility, and yet retain sufficient powers of mind and reason to act witli premeditation, to understand and contem- plate the nature and consequences of liis own conduct, and to intend the results wliich his acts are calculated to produce. Insanity does not necessarily operate, to deprive its subjects of their hopes and fears, or the other mental emotions wliich agitate and influence the minds of persons in the full posses- sion of their faculties. On the contrary, its effect often is, to stimulate certain powers to extraordinary and unhealthy ac- tion, and thus to overwhelm and destroy the due influence and control of the reason and judgment. Take an illustra- tion : A man may labor under the insane delusion that he is coming to want, and that those who look to him for support will be subjected to the ills of extreme poverty. The natural effect of that species of insanity is, to create great mental de- pression iinder the influence of which the sufferer, with a view to avoid the evils and distresses of those whom he imagines to be dependent upon him for support, is impelled to destroy his own life. In such a case, suicide is the wilful and voluntary act of a person, who understands its nature and intends by it to accomplish the result of self-destruction. He may have acted from an insane impulse, which prevented him from ap- preciating the moral consequences of the suicide ; but, nev- ertheless, he may have fully comprehended the physical effect of the means wliich he used to take his own life, and the consequences which might ensue to others from the suicidal act. It is against risks of this nature, — the destruction of life by the voluntary and intentional act of the party as- sured, — that the exception in the proviso is intended to pro- tect the insurers. " The moral responsibility of the act does not affect the nature of the hazard. The object is, to guard against loss arising from a particular mode of death. The causa oausans, the motive or influence which guided or controlled the will of the party in committing the act, are immaterial, as affect- ing the risk which the insurers intended to except from the policy. This view is entirely consistent with the nature of the contract. It is the ordinary case of the exception of a 5G8 OP INSURANCE. risk, which would otherwise fall within the general terms of the policy. These comprehended death by disease, either of the body or brain, from whatever cause arising. " The proviso exempts the insurers from liability when life is destroyed by the act of the party insured, although it may be distinctly traced as the result of a diseased mind. It may well be, that assurers would be willing to assunie the risk of the results flowing from all diseases of the body producing death by the operation of physical causes, and yet deem it expedient to avoid the hazards of a mental disorder in its effects on the will of the assured, whether it originated in bodily disease or arose from external circumstances, or was produced by a want of moral and religious principle. " It was urged very strongly by the learned counsel for the plaintiffs, tliat this view of the construction of the contract was open to the fatal objection, that it would necessarily lead to the absurd conclusion, that death occasioned by inevitable accident, or overpowering force, or in a fit of delirium or frenzy, if the proximate and immediate cause was the hand of the person insured, would be excepted from the risks as- sumed by the defendants. But this objection is sufficiently answered by the obvious suggestion, that such an interpreta- tion, although within the literal terms of the proviso, would be contrary to a reasonable intent, as derived from the sub- ject matter of the contract. " An argument having for its basis a reductio ad ahsurdum is not entitled to much weight, when it is necessary to ascer- tain the intention of the parties to a contract, and to conform to that intention in giving an interpretation to the language used. Indeed, when it becomes necessary, (as the case on the part of the plaintiffs reqiiires), to desert the literal im, port of terms adopted by parties to express their meaning, as it can not be reasonably supposed that they intended to enter into stipulations which would be unreasonable or absurd, all conclusions which tend to establish such a result are necessa- rily excluded. The question in such cases is, not how far can the literal meaning of words be extended ; but, what is a reasonable limitation and qualification of them, having re- OF INSURANCE. 569 gard to tlie nature of the contract and the objects intended to be accomplished by it. Applying this principle to the present proviso, and assuming that the plaintiffs are right in their position, that the words used are not to be interpreted literally, it would seem to be reasonable, to hold that they were intended to except from the- policy all cases of death caused by the voluntary act of the assured, when his deed of self- destruction was the result of intention, by a person knowing the nature and consequences of the act, although it may have been done under an insane illusion, which rendered the party morally and legally irresponsible and incapable of distin- guishing between right and wrong, and which, by disturbing his reason and judgment, impelled him to its commission. "If the suicide was an act of volition, however excited or impelled, it may, in a just sense, be said that he died by his own hand. But beyond this, it would not be reasonable to extend the proviso. If the death was caused by accident, by superior and overwhelming force in the madness of delirium, or under any combination of circumstances from which it may be fairly inferred that the act of self-destruction was not the result of the will or intention of the party adapting means to the end and contemplating the physical nature and effects of the act, then it may be justly held to be a loss not excepted within the meaning of the proviso. A party can- not be said to die by his own hand, in the sense in which those words are used in the policy, whose self-destruction does not proceed from the exercise of an act of volition, but is the result .of a blind impulse, of mistake, or accident, or of other circumstaftces over which the will has no control. " In seeking to ascertain the intention of parties, some weight is to be given to the practical results, which would be likely to follow from the adoption of a particular construction of the words of a contract. It is reasonable to suppose, that these were in contemplation of the insurers at the time the policy was issued. Certainly, it is fair to infer, that they intended to put some material limitation upon their liability, by the insertion of this proviso. But if it is to be construed as in- cluding only the cases of criminal self-destruction, it would 670 OP INSURANCE. rarely, if ever, effect this object. Tlaose familiar with the business of insurance, and with the results of actions on poli- cies of insurance, in courts of law, know how difficult it is, to establish a case of exemption from liability under an ex- ception in a policy, where it depends on a question of fact to be decided by the verdict of a jury. If this is true in regard to ordinary claims under policies, it is obvious that the diffi- culty would be greatly enhanced in cases like the present, where it would be sufficient, in order to take a case out of the operation of the proviso, to prove that self-destruction was the result of insanity. It would not be hazai'dous to affirm, that in all cases where such an issue was to be determined by a jury, between an insurance company and the represent- atives of the deceased, the act of suicide would be taken as proof of insanity. Such considerations were not likely to have escaped the attention of practical men in framing this gen- eral proviso ; and in a doubtful case of construction, they are not to be overlooked in giving an interpretation to the words used by them. " The learned counsel for the plaintiffs have insisted, with great force, on an argument drawn from the context, to show that the proviso was intended to embrace only a case of criminal self-destruction by a reasonable and responsible being. But it seems to us, that the maxim noscitur a soeiis, on which they rely, does not aid the construction for which they contend. The material part of the clause is, tliat the policy is to be void if the assured ' shall die by his own ,hand, or in consequence of a duel, or by tjje hands of justice, or in the known violation of any State, national or provincial law.' Now the first and most obvious consideration sug- gested by other parts of this clause is, that in enumerating the causes of death which shall not be deemed to be within the risks covered by the policy, one of them is, in terms, made to depend on the existence of a criminal intention. It is a 'known' violation of the law, which is to avoid the policy. This tends very strongly to show, that where an act producing death may be either innocent or criminal, if it is intended to except only such as involve a guilty intent, it is OF INSURANCE. 671 carefully so expressed in the proviso. The inference is very strong, that if the 'design was to confine the exception in question to cases of criminal suicide, it would have been so provided in explicit terms. So far, the argument drawn fi'om the context does not support the plaintiffs' claim. " Take then another of the causes of death, — death in a duel, — enumerated in the proviso. It seems to us to be a p.etitio prhicipii, to assiime that death in consequence of a duel necessarily implies an act for which the party would be criminally responsible. Why is not this part of the proviso open to the same argmnent, as that which is urged in regard to the clause relating to self-destruction ? A duel may be fought by a party acting under duress, or impelled thereto by an insane delusion, which might blind his moral percep- tions and render him legally irresponsible. If so, then the same answer to a defence set up against a claim under the policy would be open under this clause, as the one now urged in behalf of the plaintiffs ; and the argument founded on the assumption, that a forfeiture under this part of the proviso necessarily involves a criminal violation of law, falls to the ground. Therefore, the inference that a guilty intention is communicated, from this branch of the proviso to that relat- ing to death by the act of the assured, seems to us to be un- founded. " The only remaining clause is, that which provides for the case of death by the hands of justice. This, undoubtedly, implies that the person insured has been found guilty of a criminal act by a judicial tribunal, according to the estab- lished forms of law. But it is not correct, to say that it necessarily involves the existence of a criminal intent, be- cause it might be shown that the conviction of the assured was erroneous, and that he was in fact innocent of the crime for which he suffered the penalty of death. So far, therefore, as any argument can justly be drawn from the coimection in which the words, as to self-destruction, stand in relation to other parts of the proviso, it leads to the conclusion, that it was not solely death occasioned by acts of the assured in- volving criminal intent, or a wilful violation of law, by a per- 572 OF INSURANCE. son morally and legally responsible, which was intended to be excepted from the risks assured by the insurers ; but that, with the exception of death in a known violation of law, the proviso embraces all cases where life is taken in consequence of the causes specified, without regard to the question, whether at the time the assured was amenable for his act, either in foro eonseientics or in the tribunals of justice. " 14 may be added, that a departure from the literal terms of a contract is always attended with great difficulty and danger, because it is apt to lead to great latitude of construc- tion, and to give uncertainty to the language which the par- ties have adopted to express their meaning. It certainly never should be extended beyond the clear intent of the parties, as derived from other parts of the agreement, or the subject matter to which the contract relates. This position may be illustrated by reference to another part of the policy declared on. The proviso, which precedes that on which the present question has arisen, contains the stipulation that the policy shall be void if the assured, without the consent of the defendants in writing, shall during certain portions of the year visit the more southerly parts of the United States, or shall pass without the settled limits of the United States. If the assured in a fit of insanity should wander from his home and go within the prohibited territory, would the policy be void ? If he was taken prisoner and went thither with his captors would he lose his claims under the policy ? — These and similar questions which might arise under other clauses of the polity seem to show, that it is more safe to adhere to the strict letter of the contract, and to hold parties to the salutary rule, which requires them to express in clear and unambiguous terms any exceptions which they desire to engraft on the general words of a contract. " So far as the adjudicated cases bear on the question which we have considered in the present case, the weight of authority is against the claim of the plaintiffs under the policy. In the case of Borradaile vs. Hunter, 5 Man. & G., 639, where the policy contained a proviso very similar to that found in the policy declared on : it was held that the policy OF INSURANCE. 573 was avoided, as the proviso includes all cases of voluntary self-dostruction, and was not limited to acts of criminal sui- cide. From this opinion there was a dissent by the Cliief Justice. In Cliff vs. Schwabe, 3 C. B., 437, a similar decis- ion was made by the exchequer chamber, two of the judges dissenting. These cases seem now to be regarded as having settled the law in England in conformity with the opinion of the majority of the judges. Dufaur vs. Professional Life Ass. Co., 25 Beav., 602. — A different opinion was arrived at in Breasted vs. Farmers' Loan and Trust Co., 4 Hill, (N. Y.), 74, and 4 Selden, 299, from which, however, sev- eral of the most learned justices of the court of appeals dis- sented. " In 1 Phil. Lis., § 895, it is stated that any mental de- rangement, sufficient to exonerate a party from a contract, would render a person incapable of occasioning the forfeiture of a policy under a clause like the one in question. In sup- port of this proposition no authorities are cited, except the cases above named of Borradaile vs. Hunter, and Breasted vs. Farmers' Loan and Trust Co., as reported in 4 Hill. If it is intended by it, to assert that the principle, on which a contract made with an insane person is held to be void as to him, applies to this clause, so as to exclude from its opera- tion all cases of self-destruction occasioned by insanity, it seems to us that the position is untenable. The reason of the rule, which exempts a person from liability on a contract into which he entered when insane, is, that he is not deemed to have been capable of giving an intelligent assent to its terms. But this rule is not applicable, where a contract is made with a person in the full possession of his faculties, and he subsequently in a fit of insanity commits a breach of it, or incurs a penalty under it. He is then bound by it. His mind and will have assented to it. No subsequent mental incapacity will absolve him from his responsibility on it, unless from its nature it implies the continued possession of reason and judgment, and the action of an intelligent will. A party may be liable on an unexecuted contract after he has lost the use of his mental faculties, as he may be held 574 OF INSURANCE. responsilole civiliter for his torts. Bagster vs. Portsmouth, 7 D. & R., 614 ; Weaver vs. "Ward, Hob., 134 ; Cross vs. Andrews, Cro. Ehz., 622. " To say that insanity exonerates a party from a forfeiture, under such a proviso in a policy, is to assume tliat this was the intention of the parties when the contract of insurance was entered into. But, if such was not the intention, then it follows, that the assured gave an intelligent assent to a contract by which he stipulated that, if he took his own life voluntarily knowing the consequences of his act, he would thereby work a forfeiture of his claim under the policy, al- though he may have acted under the influence of insanity in committing the suicidal act. So, after all, we are brought back to the enquiry, what was the intention of the parties' to the contract, in order to ascertain the true construction of the proviso. " The result to which we have come after a careful and deliberate consideration of the question, during which we have felt most sensibly the very great difficulties and embar- rassments which surround the subject, is, that the plaintiffs are not entitled to recover. The facts agreed by the parties, concerning the mode in which the plaintiff's intestate took his own life, leave no room for doubt that self-destruction was intended by him, he having sufficient capacity at the time to understand the nature of the act which he was about to commit, and the consequences which would result from it. Such being the fact, it is wholly immaterial to the present case that he was impelled thereto by insanity, which impaired his sense of moral responsibility and rendered him, to a cer- tain extent, irresponsible for his actions." Where a policy of life insurance contained a clause, pro- viding that the policy shall be void in case the insured shall die in the known violation of any law of the ' State, or of the United States, or of any country which he may be per- mitted under this policy to visit or reside in, the company must prove, in order to avoid the policy on this ground, that he died while engaged in a voluntary criminal act,, known by him at the time to be a crime against the laws of such State OF INSURANCE. 575 or conntry. But those acts, which are criminal by the com- mon law and the laws of all civilized countries, Avill be pre- sumed to be criminal by the laws of the States of this Union, and he will also be presiimed to have known that they are so. Cluff vs. Mut. Benefit Life Ins. Co., 13 Allen, 308. If, in an action upon such policy, there is evidence tending to show, that the insured was killed by being shot while en- gaged in the commission of a robbery, and assault and bat- tery, and it is in dispute, whether, if lie had been so engaged, he had desisted therefrom, it must appear, in order to exon- erate the company from liability, that such criminal act was not so far completed as to render the shooting a new and dis- tinct event, rather than a mere continuation of the original affray, and that the death was the consequence of the crime of the assured : but it need not be proved that the insured knew, or had reason to believe, that his criminal act would expose his life to danger. lb. Fifth. Of the interest of Married Women in policies of In- surance, under Statute Provisions. A policy of insurance to a married woman, made under tlie laws of New York, for her benefit, and that of her chil- dren in case of her death, cannot be transferred so as to divest the interest of the wife and her children. Eadie vs. Slimmon, 26 N. Y., 9. The court held that such a policy differed from a chose in action of a married woman, in that the provision of tlie stat- ute continuing such a policy, in the event of her death, for her children's benefit, evidently looked to, and made provis- ion for a state of widowhood and orphanage. They held that it would be a violation of the spirit of the provision, to hold that a wife insured under this act could sell or traffic with her policy, as though it were realized per- sonal property, or an ordinary security for money. It is, in- deed, by force of the provisions of the statute of New York, in the nature of an estate-tail to the wife and her children. If a policy of insurance on the life of a marrifed man is made payable to his wife, and she dies before him leaving 676 OP INSURANCE. children, the administrator of her estate, upon receiving the amount of the policy after the death of the husband, will hold it under the statutes of Massachusetts, if no other trus- tee is appointed, for the benefit of the children, and the ad- ministrator of the husband's estate has no interest therein. Swan vs^ Snow, 11 Allen, 224. This decision was had under a statute quoted in tlie next case. Action upon such a Policy ly Assignee. Upon a policy of life insurance, made payable to the as- sured, his executors, administrators and assigns, and as- signed by him for valuable consideration with the assent of the assurers, the assignee may maintain an action at law against them, after the death of the assured, although the policy is expressed to be for the use of his wife and children, and he leaves a surviving child, and notwithstanding the statute of 1844, Ch. 82, Sec. 1, (Gen. Stat. c. 58, sec. 62). The Massachusetts statute is as follows : " A policy of in- surance on the life of any person, expressed to be for the benefit of any married woman, whether procured by herself, her husband, or any other person, shall inure to lier separate use and benefit and that of her children, independently of her husband or his creditors or the person effecting the same or his creditors. A trustee may he appointed by the party obtaining the policy, or if no such appointment is made, then by the judge of the probate court for the county in which the party, for whose benefit said policy is made, resides, to hold the interest of the married woman in sucli policy or the proceeds thereof. When a policy is effected by any person on his own life or on the life of another, expressed to be for the benefit of such other or his representatives, or a third person, the person for whose benefit it was made shall be en- titled thereto against the creditors and the representatives of the person eifecting the same. If the premium is paid by any person with intent to defraud his creditors, an amount equal to the premium so paid, with interest thereon, shall OF INSURANCE. 577 /■ inure to the benefit of his creditors." Burroughs vs. State Mutual Life Ins. Co., 97 Mass., 359. Married Women. The same question arose in Connecticut, in a case as fol- lows : A policy of insurance on the life of a husband was made payable to the wife for her sole iise, and in case of her death before his, to be paid to her children ; there being a statute authorizing a husband to effect such an insurance, and protecting it from his creditors. The wife died before the husband. Before her death, she made an absolute assign- ment of the policy for a valuable consideration. Held, that her interest was contingent on her surviving her husband, and that after her death, before his, her interest was gone. Con- necticut Mut. Life Ins. Co. vs. Burroughs, 34 Conn., 305. Where the assignee had (as in that case) paid an annual premium on the policy after the assignment, it was held tliat he was equitably entitled to a repayment from the fund of the money so paid. The opinion of the court, by Judge Carpenter, contains a brief and clear statement of the facts ; and as the question is a new one, and of interest, I will quote it, — ^lie says : " In 1850, the Connecticut Mut. Life Insur- ance Company issued a policy on the life of G. K. for $5,000, payable to his wife M. B. K. ' lier executors, administrators or assigns, for her sole use, within ninety days after due no- tice and proof of the death of the said G. K., deducting therefrom all notes taken for premiums unpaid at that date.' The policy then provided as follows : ' And in case of the death of the said M. E. K. before the decease of the said G. K., the amount of said insurance- shall be payable after her death, to her children for their use, or to their guardians if under age,' &c. " On the first day of September, 1862, M. E. K. executed a paper, purporting to be an absolute assignment of said policy to J. F. B. She died on the 6th day of October, 1864, and her husband died on the 10th day of the same month, leaving one son. The insurance money is now claimed by 37 678 OF INSURANCE. the assignee on the one hand, and by the son of the assured on the other. " The claim of the assignee must depend upon the validity of the assignment ; for if the assignor, at the time of the assignment, had no assignable interest in the policy, or if she had an assignable interest which was contingent merely, and that interest has been defeated by the happening of her death before that of her husband, it seems quite clear that the as- signee has no valid claim to the fund in question. " In the case of Eadie vs. Slimmon, 26 New York, 9, a policy was issued to a married woman on the life of her hus- band, similar in its provisions to the one now under consid- eration. The statute of New York on this subject is sub- stantially like our own. She assigned the policy during the life-time of her husband, and survived him. In a suit to which she was a party, the court held that the instrument had no assignable quality/. " If we are to adopt the doctrine of that case as the law of this State, it conclusively settles the question now before us. For the reasoning of the court seems to go so far as to hold that a policy of this description, prior to the decease of the husband is absolutely and under all circumstances unassign- able by the wife. That such should be the law applicable to a policy the premiums on which were paid by the husband, certainly seems reasonable and just ; while, on the other hand, if the wife paid the premiums from her own separate estate, it is difficult to suggest a reason why she should not have the same power to assign her interest in the policy that she has to assign any other chose in action belonging to her. But, in one respect, that case is distinguishable from this. There, the contingent interest of the wife became absolute by the death of the husband during her life ; here, that inter- est was defeated by her death during the life time of the husband. This distinction renders it unnecessary for us, to determine the principal question involved in that case. For, if it be conceded, on the one hand, that Mrs. K. had an as- signable interest in the policy in question, it must be conce- ded, on the other hand, that that interest was a contingent OF INSURANCE. 579 one, and that the contingency upon which it was to become absolute never has happened, and never can happen. " By a reference to the poUcy, it will be seen that it was payable to her, only in case she survived her husband ; and in case her husband survived her, it is expressly provided that the policy shall be payable to the children. By the terms of the policy the mother's interest ceased, and the child's interest, which before was contingent, became fixed and certain by the death of the mother before that of the father. Unless, therefore, the assignee took a greater inter- est than the assignor had in the policy, the rights of the as- signee terminated on the death of the assignor. " But it is suggested, that the clause in the policy making it payable to the children ' is simply the indication of her purpose at that time to give the sum specified in tlie policy to them, in case she deceased before her liusband ;' and again, that ' it must be held to be on her part an expressed but unexecuted intention, to give this sum to the children,' wliicli purpose she could abandon at pleasure, and make a different disposition of the fund. " This argument is ingenious but not sound. The inten- tion was not, to give a sum of money to these children, but to make a life policy, in a certain event, payable to them. The intention was not only expressed but executed. The contract was complete, and the money, when due, was pay- able to the children without any further act on her part. " But we do not regard the transaction as a gift. Tlie charter of the company and the statute law required the pol- icy to be made as it was, in order to protect it from the claims of creditors and the representatives of the husband ; for the widow, if Uving, if not, for the children. Mrs. K., when she purchased this policy, undoubtedly intended to secure the benefits of this statute, not only for herself, in case she survived her husband, but for her children, in case she did not ; and to that end caused the policy to be made payable according to the requirements of the statute. Hav- ing done so. and the contract relations between the company and the children having thereby become fixed, it was not in 580 OP INSURANCE. her power to defeat the purpose of the legislatm-e in respect to the children, and the manifest intention of the parties to the contract, hy an assignment of the policy during the life of the husband. In addition to this, it may be observed, that there was at least a moral obligation resting upon her, to make this provision for her children. In doing so, we must regard her, not as indicating a purpose to bestow a gift, but as discharging a moral, if not a legal duty. " Nor is there any force in the suggestion, that the instru- ment is testamentary in its nature, and therefore revocable. It is not a will, but a contract, authorized and regulated by statute ; and wlien once entered into, is no more revocable than a promissory note would be, which was made payable to the children after the death of the mother. " But it seems, that the assignee paid one premium on this policy, amounting to §109.74. We think it equitable that the money thus paid should be refunded. The superior court is, therefore, advised that the assignee is entitled to the sum paid for premium, togetlier with the interest thereon from the date of payment, and that the balance of the fund should be paid over to the guardian of the son." The statutes of New York and Massachusetts are, substan- tially, like the Connecticut statutes upon the subject, and the Court of Appeals of New York held, as we have seen, and as is stated by Judge Carpenter, that a policy of insurance to a married woman, made under the statute of that State, for her benefit and that of her children in case of her death, cannot be so transferred as to divest the interest of the wife or her children. The court, in their opinion in that case, say, " We think the intent of the statute was, to make these policies a security to the family of any married man and a provision for their use and benefit, and that this intent would be defeated if they were held to be assignable by the wife, like ordinary choses in action belonging to her in her own right as her separate property." Upon the same point, judge Denio said, " We see no rea- son to change the opinion we arrived at at the last term, as to the assignable quality of the instrument. By the ,com- OP INSURANCE. 581 mon law a person could insure his own life, for any sum for wliich he might choose to pay the premium, and which the insurers would engage to insure ; but, if one desired to in- sure the life of another, he could only insure the interest which he had in such other life. If he undertook to insure a gross sum, and the contract was not susceptible of a con- struction which would limit the recovery to the actual damage sustained, the contract would be void under the statute again^ betting and gaming. This principle the legislature, by the act of 18-10, (Laws, p. 69), relaxed, in respect to in- surance as effected by a married woman, for any sum which she and the insurance company might see fit to contract for. It was provided, that in the case of her surviving her hus- band, the amount payable by the terms of the policy should be payable to her, for her own use, free from all claims of the representatives of her husband or of his creditors. There is another feature in the act, which shows that it was an ena- bling, and not a declaratory provision. By the general rules ^f law, a policy on the life of one sustaining only a domestic relationship to the insured would become inoperative by the death of such insured in the life time of the cestui que vie ; or, if it could be considered as existing for any purpose after that event, it would be for the benefit of the personal repre- sentatives of the insured ; but by this act, the contract may be continued in favor of the children of the insured wife, after her death. These features distinguish tliis case from that of an ordinary chose in action, belonging to a married woman as her separate estate. The provision is special and peculiar, and looks to a provision for a state of widowhood and for orphan children ; and it would be a violation of the spirit of the provision, to hold that a wife insured under this act, could sell or traffic with her policy, as though it were realized personal property or an ordinary security for money." The case in New York was decided in 1862, the one in Connecticut in September, 1867, and a similar case in Mas- sachusetts, in October, 1867, (Burroughs vn. State Assurance Co., 97 Mass., 359, ante, p. 577), came before the supreme court of that State, which held, that upon a policy made pay- 582 OF INSURANCE. able to the assured, &c., and his assigns, and assigned by him for valuable consideration with the assent of the insurers, the assignee might maintain an action at law against them after the death of the assured, although tlie policy was expressed to be for the use of his wife and children, and he left a surviving child. But they held also, that the amount which the assignee should recover would be held by him, so far as it should inure to the benefit of the child of the assured, in trust for him ; so that the decisions are in substantial agreement. Sixth. Of Assignments of Policies of Life Insurance. The holder of an insurance policy on his life may freely assign it, unless restrained by some stipulation of the pol- icy ; and one of the most important uses to which such pol- icies are appropriated is, their transfer to a creditor or surety as collateral security upon a loan of money. A person may also insure his life for the benefit of his heirs or creditors, or he may insure the life of another in which he may be in- terested and assign the policy to those who have an interest in the life. An assignment may be made by the mere deposit of a life policy, or by a formal assignment indorsed upon it, or by a separate deed of assignment, and the effect is in equity the same. "A deposit of a policy and an agreement to assign it by way of security for debt constitutes a valid assignment." Cook vs. Black, 1 Hare, 390. But, to constitute a valid as- signment by indorsement upon the policy, there must be delivery of the instrument. Palmer vs. Merrill, 6 Cush., 282. In this case. Chief Justice Shaw, in deciding the point involved, enlarged as follows : " It appears to us, that the order indorsed on this policy and retained by the assured fails of amounting to an assignment. We do not question but that an assignment may be made of an entire fund, in the form of an order drawn by tlie owner on the holder of the fund, or party indebted, with authority to receive the property and discharge the debt. " But if it be for part only of the fund or debt, it is a draft or bill of exchange, which does not bind the drawee, or trans- OP INSURANCE. 683 fer any proprietary or equitable interest in the fund, until accepted by the drawee. It, therefore, creates no lieu upon the fund. It seems to us quite clear, that the plaintiff ac- quired no such interest in this policy, as would enable him to maintain an action against the insurers. He seems him- self to have thought so too ; for, although he demanded the amount of them, which they refused to pay, for reasons which seem to be conclusive, he yet declined bringing any suit against them, but permitted them to pay the money over to the admmistrator. K the plaintiffs had no such legal or equitable interest in the debt due on the policy as would en- title him to maintain an action or suit in equity, either in his own name or the name of the administrator of the assignor for his own benefit, it seems diflicult to perceive on what ground he had any equitable lien on the debt due by the policy ; and if he had not, then the administrator took it as general assets, charged with no trust for the plaintiff ; other- wise an administrator instead of succeeding to the property and rights of his intestate, to be administered and distributed equally among all the creditors, might be obliged to dispose of it in very unequal proportions, according to such supposed declaration of trust. These considerations apply with pecu- liar force to a policy of insurance on the life of the assured himself, on which no money can become due till the death of the assured, at which time all his rights devolve on his per- sonal representatives. If, therefore, it is intended to super- sede the rights of the personal representative, it must be done in the mode required for a complete assignment of the whole contract." Sometimes an assignment is of a policy which contains an express condition, that if it should be assigned in good faith, the assignee should have the benefit of it, so far as his inter- est extends, notwithstanding the assured should commit sui- cide. Such a policy was deposited by the assured, with a creditor, accompanied by a letter promising to assign it to him when requested, as a security for his debt, no notice of the assignment being given to the insurers. The insured com- mitted -suicide, and it was held, that the transaction amounted 584 OP INSURANCE. to such equitable assignment as vested the interest in the as- signee, and prevented the insurers from availing themselves of the defence of suicide. Halford vis. Kymer, 10 Barn. &, Cress., 724. Although, as in this case, an assignment without notice may be good as between the original parties, yet as matter of prudence the assignee should, iipon a transfer, require the immediate delivery of the policy, and should also give early notice to the insurers ; otherwise, one taking by subsequent assignment who should, without notice of the prior transfer, perfect his title as assignee by notice to the insurers, would acquire a superior title, and in case of death the representa- tives of the assignor might collect the amount and discharge the insurer. Notice to the insurers would also be necessary, to prevent the assignees in bankruptcy or insolvency from acquiring rights, which would impair or destroy the title of the as- signee. No special form of notice would be necessary, but a letter, or even an oral communication, would be sufficient, if it com- municated the information and could be proved. In this matter of the assignment of policies of insurance, we have an instance of the manner in which commercial law has grown out of, and been conformed to, the customs and convenience of merchants and other business men. There seems to be no special reason, in the nature of the instruments, why marine policies and fire and life policies should not stand upon the same footing as to transferability ; but we find that, as to marine policies, they have always been transferable by custom, with the bills of lading ; life policies have also been held to be assignable, though with less free- dom ; while fire policies have never been held to be assign- able, without the special consent of the insurers. Tlie reason lies, as we have seen, not in the nature of the contract, or of the instrument, but in the fact that in fire in- surance more reliance is placed upon the character of the insured, from the ease with which property on land can be burned without danger to the incendiary, who if he lacks OF INSURANCE. 585 moral integrity may easily over insure and destroy his own property. Tliis is not true in the same degree as to property on the sea, or as to human life. Of the effects of an assignment of a life policy payable to a married ivuman, we have spoken under the preceding head. (See ante, •' Fifth," and cases Eadie vs. Slimmon, 28 N. Y., 9 ; Swan vs. Snow, 11 Allen, 224 ; Conn. Life Ins. Co. vs. Bur- roughs, 24 Conn., 305 ; and Burroughs vs. State Ass. Co., 97 Mass., 379.) The suit upon a policy of insurance issued by a mutual' company should, in case of loss, be in the name of him who is at the time a member of the company. Blanchard vs. At- lantic Mutual Fire Ins. Co., 33 N. H., 9. It seems that an action may be maintained in the name of a widow, on a policy of insurance on her husband's life, which was effected for her benefit, although there be an executor. Myers vs. Keystone Mut. Life Ins. Co., 27 Penn. St., 268. An administratrix has the right of action, to recover in- surance on the real estate of the deceased burned after his death, and is the trustee of the amount recovered for the heirs, who are entitled to the indemnity. Wyman vs. Wyman , 26 N. Y., 253. Where, in a suit to recover insurance by an assignee of a policy, the complaint omitted to aver any interest of the plaintiff or his assignor in the subject insured, it was held to be a fatal defect. Fowler vs. New York &c. Ins. Co., 26 N. Y., 422. A policy purported to insure S. upon certain property de- scribed as his : the amount in case of loss to be paid to W. In an action of assumpsit on the policy, bi-ought by W. against the insurance company, it was held, that parol evidence was not admissible, to show that W. was the real party to the contract ; that the defendants had agreed to insvire a mort- gage interest held by him, and undertook to do so by the policy ; and that they contracted with him by the name of S. Woodbury Savings Bank vs. Charter Oak &c. Ins. Co., 29 Ct., 374. Proof of an application for insurance and of a policy is- 586 OP INSURANCE. suing thereon, both of which describe the property insured as the property of the plaintiffs, is prima facie evidence of title and of an insurable interest in the plaintiffs, in an action upon the policy. Nichols vs. Payette &c. Insurance Co., 1 Allen, 63. Li an action upon a policy of insurance upon property which is admitted to have been owned by the plaintiff when the policy was issued, the burden of proof was upon the de- fendants, to show a subsequent alienation of the property. Orrellt^s. Hampden Fire Ins. Co., 13 Gray, 431. In an action on a policy of life insurance, it is not neces- sary for the plaintiff to show any interest in the life of the assured. Trenton Mutual Life Ins. Co. vs. Johnson, 4 Zabris- kie, (N. J.,) 576. The assignee of a life policy, in trust for the wife of the assured, may upon the death of the assured recover the amount of the policy in an action in his own name, without joining the wife or personal representatives of the deceased. St. John vs. American Life Ins. Co., 2 Duer, (N. Y.,) 419. Section 13. Of Insurance against Accidents. This form of Insurance has become quite common, and is becoming more so from year to year. The genera,l principles which regulate it, as to interest in the subject. Warranty, representation and concealment, - ing, however, cases in which the trust is declared to be for 666 OP TITLE BY MAREIAGB. her sole and separate use, or in some other manner clearly excludes the idea of curtesy in the husband. Dower may be Ijarred or forfeited in a variety of ways : but no conduct of the husband, unless it result in divorce, deprives him of this right. He renders himself liable in damages if he is guilty of waste, but his estate is not forfeited, as is the case with a doweress who is guilty of waste. There is, of course, no occasion for an assignment of curtesy, as the husband takes possession of the whole. Section 2. ' Of Estates of Bower. Upon the death of a husband, his wife is entitled to an estate for life in one-third part of his real estate. But, what is included in the expression " his real estate," is by no means the same in all the States. It extends, in some of them, to all the real estate of Avhich the husband was seized as an estate of inheritance at any time, during the coverture, while, in others, as in Connecticut, it extends only to such estate, of which the husband died seized. The estate must be, not only an estate of inheritance, but one in which the husband has a beneficial interest ; the wife not being dowable in estate held by him as trustee. Neither has she dower in estate in which the husband has title only as mortgagee ; nor where he takes title as purchaser, (at the same time mortgaging the land back for the purchase money,) except subject to tlie rights of the mortgagee ; nor in lands pur- chased with partnership funds, except subject to the rights of partnership creditors and a final adjustment of balance between the partners. Dower may be barred in several ways : First, by a reason- able ante-nuptial agreement, by which the wife receives cer- tain estate in settlement, with the agreement that it shall be in lieu of dower and of other claims against her husband's estate. Such an agreement and settlement of an estate upon a wife may, or may not, amount to what is technically known as jointure. OP TITLE BY MARRIAGE. 667 Second, it may be barred by devise, in lieu of dower ; in which case, however, she lias a right, within a limited period after the death of her husband, to elect, whether she will accept such devise or retain her dower. Statute regulations differ in the Several States, in reference to this matter ; some- of them providing that, if a husband by his will makes any provision for his widow, it will be taken to be in lieu of dower, unless it plainly appears to have been his intention that it should be in addition thereto. In other States, the provision is exactly the reverse. Third, the dower may be barred, by the wife joining her husband in a deed. No separate consideration to lier is con- sidered necessary : the sale and conveyance by the husband being deemed a sufficient consideration for her signature. Fourth, it may be barred by such misconduct of the wife in the lifetime of her husband as, under the statute laws of the State in which they live, amounts to a forfeiture of dower ; or by voluntarily committing or suffering waste upon the estate assigned to her in dower, during her occupancy thereof. Dower is assigned to the widow, either voluntarily by the heirs or other persons interested, or upon her petition in pur- suance of statutes regulating the matter in the different States. Section 3. Of the Interest which a Husband acquires in the Personalty of his Wife. At common law, the husband by marriage acqiiired an ab- solute title to all the personal property then in her possession. He does not acquire a mere life estate in it, as by curtesy he sometimes does in her real estate, but it goes to his executors and heirs in case of his death, she surviving him, unless he has given it to her by will. As a necessary accompaniment of his acquisition of her estate, he is, at common law, bound to pay her debts ; this rule, however, is universal, and not at all dependent upon his receiving estate of any sort with her. 668 OP TITLE BY MARRIAGE. All wages earned by the wife while slie is married belong to the husband ; so that she can acquire nothing by her ser- vices. As to personalty not in possession of the wife, as tilings in action, for which slie holds notes, bonds or other securities, the husband has, at common law, the right to reduce them to his possession, by voluntary payment to him by the debtor, or by adverse action at law. If they are so reduced to pos- session by the husband, the property then becomes his, as absolutely as that which was in her possession and control at the time of the marriage. He may also assign them, and siich assignment, even before their avails are reduced to pos- session, will, if made upon good consideration, be valid against the wife : but, if not reduced to possession during his lifetime, he cannot devise them by will ; for unless they are collected, (i. e. reduced to possession,) or assigned be- fore his death, they belong to the wife. The husband also has right to all the rents and profits of the real estate of his wife during the marriage, and they may be taken adversely, for his debts. All her leases of land, and other chattels real, are his, and may be transferred by him. In fact, at common law, the wife has, during coverture, no separate rights in, or control of, her own property, but may, wilh her husband's consent, and jointly with Mm, make sale and conveyance thereof. CHAPTER XXVI, OP TITLE BY DESCENT. This is the title taken by one who, on the death of his an- cestor, succeeds to his estate. The owner must have died without a valid will ; in which case the law disposes of all his estate according to certain and fixed rules ; or, if leaving a valid will, must have failed to dispose of all his estate thereby. Such title is subject, not only to the estates of dower and curtesy, (if any there be in the particular case,) but also to all claims of creditors. As to real estate, which alone is strictly inheritable, the heir succeeds by descent to its title, (subject to such prior claims,) at the moment of the death of the ancestor. Personal estate, on the death of the ances- tor, vests in his personal representatives, who distribute it, after payment of debts, among those to whom it is specially appropriated by provisions of the local statute law. The rules of descent vary materially in the diiferent states : but all agree in this, that they depart from the English rules as to primogeniture, or preference of the oldest son over all the other children, and as to a preference of males over fe- males. Chief Justice Reeve, in his " Treatise on the Laws of Descent," remarks that, " This nation may be said to have' no general law of descents, which probably has not fallen to the lot of any other civilized country." Chancellor Kent claims, that this learned author is a little too sweeping in this general assertion, and that, while there is disagreement in details and no entire uniformity in general outlines, there is still an essential uniformity in the leading features in the general law of the different states on this subject. For full- ness of detail and explanation of all the variations and shades of difference between the statutes regulating descent in the 670 OF TITLE BY DESCENT. different states, reference may safely be had to the work of Judge Eeeve. Chancellor Kent, in his lectures on this sub- ject, has given us, with less fullness and particularity, but with his usual clearness and accuracy, a fuller and more gen- eral statement of the law than we shall have room for in these pages. I shall endeavor to give a synopsis of those leading principles of our American law of descent, which are of most general application and use. The first rule of inheritance, as to parties upon whom pro- perty shall descend, is, that it shall follow in the direct line of lineal descent from the owner who dies without a will. If there be but one person, it vests in him alone ; if there be more than one, of equal degree of consanguinity, it vests in all as tenants in common, in equal parts, however remote the degree of consanguinity may be. The second rule is, that, if the intestate leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grand-children of the ancestor, if any be living, and to the issue of such children or grand- children as shall be dead, and so on to the remotest degree, as tenants in common. The remoter descendants, however, taking, by representation, only such share as their ancestor would have been entitled to. For example, if there be chil- dren, and grand-children, and great-grand-children, the estate is divided into as many equal parts as there are living chil- dren and living descendants of children who have died. Each living child takes the share set apart for him, and the descendants of each child who has died, whether children or grand-children, takes the share which the child would have received if living; This principle, by which the descendants of a child or other heu- take the share to which their ances- tor would have been entitled, is called inheritance by right of representation, or, in the old books, j»er stirpes. Third. If there be no lineal descendants, as children, grand-children, &c., of an intestate who dies leaving parents living, the estate shall, in most of the States, ascend to the father or mother, subject to certain regulations and qualifica- tions : as that, where it was purchased by the intestate, it OF TITLE BY DESCENT. 671 usually goes to the father, if living ; if not, to the mother. In many of the States, if it be ancestral estate, it ascends in the line from which it descended. Tliis rule, as to the inheritance of the father or mother in want of living descendants of the intestate, is not, however, universal. In some of the States, as Connecticut, Ohio, North Carolina, Tennessee, Mississippi, and Alabama, the father takes only in default of brothers or sisters. So, the rule as to ancestral property is not universal : but in Massa- chusetts and Arkansas, and perhaps in some of the other States, the estate descends in all cases to the father, if the intestate leaves iio lawful descendants. In some of the States, in the absence of lawful descendants, the estate is divided equally between the father and mother. In States in which the rule, as to ancestral property being continued in the line of ancestry from which it came, is adopted, brothers and sisters are preferred before parents : but the same general principle, as to the distribution of pro- perty among the heirs or representatives of the ancestor from whom it came, holds good. Tlie local law of each State, in these particulars of detail, is quite fully stated in Chancellor Kent's Sixty-fifth lecture of his Commentaries, but may be easily and more accurately ascertained by reference to the existing statute laws on this subject of the particular State. Fourth. If the intestate die without issue or parents, the estate will descend to the brothers and sisters, or their rep- resentatives. If there be several such relatives, and all of equal degree of consanguinity to the intestate, the inheritance is taken by them in equal parts, however remote from the intestate the common degree of consanguinity may be. But if some be dead, leaving issue, and others living, then the right of representation usually comes in, as in the cases before alluded to ; those who are living taking the share they would have taken if all had been living, and the descendants of those who are dead taking only the share to which their ancestor would have been entitled. In several of the States, as in Maine, New Hampshire, Ver- 672 OP TITLE BY DESCENT, mont, Rhode -Island, Connecticut, Pennsylvania, Maryland, Georgia, and Mississippi, and possibly in other States, the rule of inheritance by representation does not hold, among collaterals, beyond nephews and nieces ; nor in Delaware, after brothers' and sisters' grand-children ; nor in Alabama and Mississippi, after the descendants of brothers and sisters. In some of the States, there does not appear to be any posi- tive regulation on that subject. The distinction arising out of the half and the whole blood is of constant application, but there is a material difference between the statute laws of the different States on that sub- ject, and it is not within the purpose of this book to treat of those distinctions, otherwise than by referring the reader to the local statutes, and the books which have already been named, for information. Fifth. Upon the death of an illegitimate intestate, with- out descendants, the estate usually descends to the mother ; and, if she be dead, it goes to the relatives on the part of the mother, the same as if he had been legitimate. Sixth. Posthumous children and other descendants and relatives of the intestate, begotten before his death but born after, inherit in the same manner as if they had been born in the life-time of the intestate and had survived him ; it being ■a general principle of law that, for all the beneficial purposes of inheritance, a living but unborn child is entitled to the same consideration as if he were born. Seventh. If a child of the intestate has received estate by way of advancement upon his portion of the inheritance, it will be reckoned against him upon distribution, if equal to what would have been his share ; he is, of course, entitled to no more : if less, only to so much as will make his share equal. If more than would be equal to his share has been received by him, he is not liable to refund or repay, unless he has specially so agreed. Eighth. One taking estate by descent is, in this country, rendered liable to payment of the debts of his ancestor, to the extent, in amount, of the value of the property inherited. He holds the lands subject to the payments of such debts. OP TITLE BY DESCENT. 673 At common law, land passing by descent or devise was not liable to simple contract debts of the testator or ancestor, and the heir was not bound, even by bond or other specialty, im- less he was expressly named. Hence arose the habit of nam- ing the heirs of the contractor, obligor, &c., in all contracts, bonds and obligations. But the American law is such, that, as we have stated, one taking estate by descent holds it subject to payment of the debts of him from whom it came. This is so, without his being named in the contract or obliga- tion, and he is not bound beyond such estate, even if ex- pressly named : so that, as we have remarked elsewhere, the naming him in such bonds and obligations has now become useless and unnecessary. 43 CHAPTER XXVII. OP TITLE BY DEVISE OR BEQUEST. Section 1. Definitions and Q-eneral Principles. A DEVISE or bequest is a disposition of lands and other property by will. It is but little more than three hundred years since real estate could be disposed of by will ; the prin- ciples of the Feudal System being such, that the holder had not such absolute and unqualified estate as would enable him to dispose of land by will. At present, the American rule is, that all persons competent to contract or convey may freely dispose of all their property by will, to whomsoever they please. There is a common, but unfounded, idea that a father in making a will must give something to each of his children or the will will be invalid. A father may devise his entire estate to strangers, to the complete disinheritance of his children ; and however unnatural such a will may appear, if the maker of it is of full age, of sound mind and memory, and free from restraint or undue influence, the will is valid and effective. Persons incompetent to contract and convey are, in general, incompetent to devise. There are, however, in most of the States, statutes empowering married women, under certain limitations and conditions, and also minors who have arrived at an age named in the statute, to make a valid will. All natural persons, and, in this country, all corpora- tions, whose charters allow them so to acquire property, may take estate by devise. Wills of personal property might, at common law, be made by infants of the age of fourteen, if males, and twelve, if fe- males. Parties witnessing a will are usually incapable of taking anything under it by devise ; the rules of law requir- ing such a witness to be disinterested. OP TITLE BY DEVISE OK BEQUEST. 675 The statutes of the different States, to avoid the incon- venience which would arise froifi invalidating wills for such a cause, generally provide that if a legacy be left to one who is a subscribing witness, and the will cannot be proved with- out him, the bequest is void, unless he would be entitled to a portion as heir in case there had been no will ; in which case, so much of that portion is sometimes saved to him as would be equal to the legacy. Parties making a will should care- fully bear this in mind, and whenever a person is called upon to witness a will, who has reasonable cause to believe that he is a legatee under it, he should call attention to the objection. Any interest in real or personal property, which can be conveyed, may also be devised. By the English law, a devise can pass only such real estate as the testator is owner of at the date of the will, even though he expressly attempts to de- vise all of which he may die seized or possessed. The idea was, that the devise was in the nature of a conveyance or appointment of a particular estate ; therefore, land purchased after the execution of the will could not pass. This rule of law has been adopted in some of the States ; but, in most of them, legislative provisions declare that, by a general dispo- sition of all his estate, lands and all other property, which the testator owns at his death, will pass by force of the pro- visions of the will. This is believed to be the rule of the statute law of Maine, Massachusetts, New Hampshire, Cqp- necticut, Vermont, Alabama, New York, Pennsylvania, Ohio, Kentucky, Virginia, North Carolina, South Carolina, Illinois, and perhaps some of the other States. A devise to an heir-at-law, if it give only the same interest that he would otherwise inherit, is void, and the heir will take by descent. Less technical accuracy is required in the conveyance of an estate by devise than by deed, upon the ground that wills are often made in haste and by inexperienced persons. Thus an absolute estate in fee simple may be devised without the word " heir ;" as where the language is, " all my real estate whatsoever," or, " to hold forever ;" so, to a man " and his successors," would be good to pass an estate to his heirs ; so, 676. OP TITLE BY DEVISE OR BEQUEST. to a man " for his own use, and to give away at his death to ■whom he pleases," will passrthe fee : the rule being that the intent of the testator is to be carried out, however imper- fectly, as to technical language and accuracy, it may have been expressed. A devisee does not, like an heir, take title to the estate from the moment of the death of the ancestor, but has no title till after probate of the will. Section 2. Mow Estates may he Limited hy Devise. There has always been more or less jealousy of perpetui- ties ; and devises, for tying up an estate 'beyond the lifetime of persons in being, were strenuously resisted for a long time. Tlie limitation of an estate to several persons in succession was held to be good, if they were all alive at the same time, Chief Baron Hale observing that all the candles were lighted together, and that the whole period could not amount to more than the life of the last survivor. An effort was made, on the part of the English aristocracy, so to entail real estate in the family of the possessor as to secure the wealth and grandeur of ancient families. But such perpetuities were resisted by the nation at large, as being inconsistent with that free and unfettered enjoyment of prop- erty, which was deemed beneficial to a commercial nation. In 1685, in the great case of the Duke of Norfolk, it was de- cided, that settlements of property by executory devise might properly be limited to a life or lives in being and twenty-one years afterwards. The question was discussed in subsequent cases, and was finally settled and defined by more precise limits in 1736. This has ever since been the general doctrine of the common law, both in England and in this country. If an estate is so limited that it cannot take effect within this period, it would generally be held void, as too remote, and tending to create a perpetuity. See Proprietors of the Church in Prattle Square vs. Grant, 3 Gray, 142. OP TITLE BY DEVISE OR BEQUEST. 677 An estate devised by a husband to his wife may legally be limited to her, so long as she shall remain unmarried : but, if a father should devise an estate to an unmarried daughter, conditioned that the devise should become void upon her marriage, such condition would be void, and the devisee would take an absolute estate ; the policy of the law requir ing that marriage should be free and unrestrained to all per- sons who have never entered into that relation. CHAPTER XXVIII. OP TITLE BY PURCHASE. Section 1. Of Forms of Conveyance. Blackstone divides conveyances into two kinds, viz : con- veyances at common law, and such as receive their force and efficacy by virtue of the statute of uses. These, again, he divides into original or primary conveyances, by which he means those whereby the estate is created or first arises ; otliers he defines as derivative or secondary, by which the es- tate originally created is enlarged, restrained, transferred or extinguished. Of original conveyances, at common law, he names the fol- lowing : 1st, Feoffment ; 2d, Gift ; 3d, Grant ; 4th, Lease ; 5th, Exchange ; 6th, Partition. And of Derivative Convey- ances at common law, as follows : 1st, Release ; 2d, Confirm- ation ; 3d, Surrender ; 4th, Assignment ; 5th, Defeasance. In addition to these forms of conveyance at common law, there are several species of deeds which derive their force and effect from the statute of uses : as our common deed of bargain and sale; the form of conveyance by Lease and Release, which was at one time considerably used ; and a form of con- veyance by Covenant to stand seized to uses. There are also deeds to declare the uses of other more di- rect conveyances, or upon which a party in possession holds his estate. Of those deeds not now in common use, I shall give only a brief definition, in the order in which they have been named. First, of Feoffments. This is said to be the most ancient form of conveyance, and is the most public, notorious, and easily remembered. It was performed by delivery of posses- OP TITLE BY PURCHASE. 679 sion in presence of witnesses, the instrument of conveyance being incomplete and of no effect until the performance of this ceremony of the delivery of actual possession. If the lands conveyed were in different counties, this form of deliv- ering possession had to be performed in each of the counties. The party conveying by this form is called the feoffer, and the person to whom the conveyance is made is denominated the feoffee. Conveyance by Gift was usually applied to the creation or transfer of an estate-tail, as that by feoffment was mainly confined to absolute estates. It was equally necessary that this should be perfected by delivery of possession. A Grant was the common law form of transferring prop- erty not susceptible in its nature of actual delivery of posses- sion, as rents, resulting from leased reversions in land whereof the life estate is held in possession, 18 , when and where the same was duly disposed of to said [here insert the name of grantee,] as the highest bidder therefor, at the OP TITLE BY PURCHASE. 733 sum of dollars, payment whereof is hereby acknowl- edged : Now, therefore, said party of the first part, in pursu- ance of the proceedings aforesaid and of the powers given him in and by said trust deed, in consideration of said sum, to wit : dollars, to him paid by said party of the second part, hereby grants, sells, and conveys, to said , all the right, title, and interest, which, by force of said trust deed and the proceedings aforesaid, he is empowered to grant, sell, or convey, in and to the estate described in said deed of trust, as foUows : [here insert description of the estate.] To have and to hold said estate to said , his heirs and assigns forever. In witness whereof, the said party of tlie first part has set his hand and seal, the day and year above written. Executed and delivered [l. s.J in presence of State of 1 gg_ j^j^g jQj.j^^ ^ j^ -^g _ County of ) Then personally appeared before me , to me known to be the person whose name is subscribed to the fore- going instrument of conveyance as grantor therein, and ac- knowledged the same to be his free act and deed. [Signature and official designation.] 30. Deed from a Master or Receiver under an Or- der OP Court. Whereas I, A. B., of , in the State of , [here set forth the official character of the grantor, whether master or receiver, and of what estate,] at the term of the court, held at , in the county of , State of , on the day of , A. D. 18 , in a proceeding then pending in said court, in which was plaintiff and was defendant, the purpose of which was, to obtain an order for the sale of 734 OF TITLE BY PURCHASE. the estate hereinafter described, and for other relief, ' it was ordered and adjudged by the court [set fortli the order under which the sale is to be made.] And the said A. B., [master or receiver,] as aforesaid, was named by the court to execute said order, and to make and deliver to the plaintiff a deed of said estate, conveying to him all the interest and title of the defendant therein. Now therefore, I, A. B., as aforesaid, in consid- eration of one dollar to me paid, receipt whereof I acknowl- edge, and in pursuance of the order of court aforesaid, have granted and sold, and do hereby grant, sell, and convey, unto C. D. of , county of , certain estate situate in said , described as follows : [here insert description.] To have and to hold the same with the appurtenances thereto belonging, to said C. D., his heirs and assigns for- ever. In witness whereof, said A. B. has hereto set his hand and seal, this day of , 18 . Executed and delivered A. B. [l. s.] in presence of [Similar acknowledgment to that at foot of No. 33.] 31. Deed from Husband to Wipe, Vesting the Estate directly in the wipe by pobcb op the statute op Uses. Know all men by these presents, that I, A. B. of, &c., (the husband,) in consideration of one dollar to me paid by C. D. of, &c., (a third party,) and for other good and valuable con- siderations me hereto moving, do hereby remise, release, and forever qnit claim, unto the said C. D. a certain parcel of land, &c. To have and to hold the same, with all the privileges and appurtenances to the same belonging, to the said C. D. and his heirs to the use of my wife, M. B., and her heirs and assigns forever. OP TITLE BY PUECHASE. 736 In witness whereof I, the said A. B., have hereto set my hand and seal this fu-st day of, &c. A. B. [l. S.J 32. Conveyance by Two Old Trustees to One Con- tinuing AND One New Trustee. To all men to whom these presents shall come, A. B. and C. D., both of, &c., send greeting. Whereas, by a certain deed, dated, &c., and recorded, &c., X. Y. conveyed to the said B. and D. a certain parcel of land hereinafter described, in trust for the purposes set forth in said deed : — and whereas, it is provided in said deed that, in the event of the resignation of either of said trustees, and of the appointment of a new trustee in accordance with tlie provisions of said trust deed, the remaining trustee and either trustee who shall so resign shall execute such deeds, conveyances and assignments, as may be needful or proper in the circumstances : — and whereas, the said C. D. has re- signed the said trust, and E. P., of said , has been duly appointed by, &c., as trustee in place of him, the said CD. Now, therefore, know ye, that in consideration of the premises and of one dollar to us paid by the said E. F., we, the said A. B. and C. D., trustees as aforesaid, do hereby remise, release, and forever quit claim, unto the said E. F., all that parcel of land situated on street, in said , and bounded as follows : — To have and to hold the above released premises to him, the said E. F., and his heirs, to the use of the said A. B. and E. F., and the survivor of them, and the heirs of such sur- vivor, and their and his assigns : but nevertheless, in trust for the purposes set forth in the above-mentioned deed from X. Y. to the said B. and D. And I, the said C. D., for myself and my heirs, executors, and administrators, do covenant with the said A. B., and E. F., and their survivors, heirs, and assigns, that the above- 736 OP TITLE BY PURCHASE. released premises are free from all incumbrances, knowingly or willingly made or suffered by me. In witness whereof, we, the said A. B. and C. D., trustees as aforesaid, have hereunto set our hands and seals this first day of, &c. torms of acknowledgment. 1. Common Form in Use in New England. Commonwealth of \ [or State of] > ss. January 1st, A. D. 1869. County of . ) Then personally appeared the above named , and acknowledged the foregoing instrument, by him subscribed, to be his free act and deed, before me, A. B. Justice of the Peace, [or other official designation.] 2. Same in Use in New York, and some other States. State of , j gg_ January 1st, A. D. 1869. County of ) -^ ' Then personally appeared before the iindersigned, A. B., who is personally known to me to be the individual described in and who executed the above instrument, and acknowl- edged that he executed the same for the purposes therein men- tioned. In witness whereof, I have hereunto set my hand and affixed my seal of office at , the day and year above written. [Official Seal.] [Signature, and official designation.] op title by purchase. 737 3. Same, with Certificate of Examination op Wipe, Separate and Apart. State of County of Be it remembered, that on this day of j 18 , personally came before me the subscriber, a Justice of the Peace [or other officer, as the case may be] in and for said County; A. B., being personally known to me as the same person named in, and who executed the foregoing instru- ment as grantor, and acknowledged that he executed the same as his free act, for the purposes therein named ; and C. D., wife of the said A. B., to me also personally known, ac- knowledged, on a private examination by me made, separate and apart from her husband, that she executed the said in- strument freely, and without fear or compulsion of her said husband. In testimony whereof, I hereto set my hand and affix my official seal, at said , the day and year first above written. [Official Seal.] [Signature of officer and official designation.] 4. Same, with Special Certificate of Examination op Wipe, after Information op her Rights under Home- stead Laws, &c. State of . ss. County of Be it remembered, that on this day of , A. D. 18 , personally came before me, the subscriber, a Notary Public [or other officer as the case may be,] in and for said County," A. B., to me personally known as the individual named in and who executed the foregoing instrument, as grantor, and acknowledged that the same is his free act and deed for the purposes therein named. And C. D., wife of the said A. B., also to me personally known, having been exam- ined by me separate and apart from her husband, the con- 47 738 OF TITLE BY PURCHASE. tents of said instrument having been by me read to her, and she being also by me fully informed of her rights under the Homestead Exemption laws of this State, acknowledged that she freely executed the same, and released her rights of dow- er and homestead to the estate therein described, without fear or compulsion of her husband. Witness my hand and official seal, the day and year above- written. [Seal.] [Signature and official designation.] 5. Release of Rights of Dower and of Homestead in Land op Husband, previously taken Adversely. "We, A. B., and M. B. wife of the said A. B. of, , in consideration of one dollar to us paid by C. D., of , the receipt whereof is hereby acknowledged, hereby consent that the said C. D. may levy and sell, under a certain execu- tion in his favor and against [name of defendant in execu- tion,] now in the hands of the Sheriff of the County [or of his Deputy, as the case maybe,] and dated the day of , A. D. 18 , the following described tract of land, situated in the town of , and State of , to wit : [here describe the premises granted,] (and being the same land heretofore held, used, and occupied as a homestead by the said A. B. and M. B.,) hereby granting, releasing, and quit claiming, to said C. D., all the right, title and interest, which we, the said A. B. and M. B., and each of us, have in and to the said premises, by virtue of any and all homestead exemption laws, now or heretofore in force in the State of , and more especially "An Act to exemjt Homesteads from sale on execution," now in force in the State of . And the said M. B. hereby releases and quit claims to the said CD. her right of dower in said estate. Witness our hands and seals this day of , A. D. 18 . A. B. [l. s.] In presence of M. B. [l. s.] OP TITLE BY PURCHASE. 739 (Acknowledgment to No. 5.) State of , I gg_ County of , ) On the day of , 18 , A. B. and M. B., person- ally known to me as the same persons whose names are sub- scribed to the above instrument, appeared before me in per- son, and acknowledged that they signed, sealed, and delivered, the said instrument of writing, as their free and voluntary act, for the uses and purposes therein set forth. And the said M. B., wife of the said A. B., having been by me examined, separate and apart from her husband, and the contents of the said instrument having been by me fully made known to her, and she also being fully informed of her rights under the Homestead Laws of this State, acknowl- edged that she had freely and voluntarily executed the same and released her rights of Dower and Homestead to the lands and tenements therein mentioned, without compulsion of her said husband. Given under my hand and seal this day of , A. D. 18 . E. P. [L. S.J Justice of the Peace, [or other official designation.] 6. Eelease of Eights op Homestead and Dowee, when THE Wife did not Join in the original Conveyance from HER Husband. Whereas, A. B. of , did by his deed of conveyance) dated the day of , A. D. 18 , convey the following described real estate : [here describe carefully the estate,] to C. D. of , in which deed rights of dower and home- stead were not released by the wife of said A. B. : and whereas, said C. D. is desirous of procuring the release of such rights of dower and homestead : now, in consideration of these premises and of one dollar to said M. B. in hand paid by said CD., receipt whereof is hereby acknowledged, 740 OF TITLE BY PURCHASE. the said A. B. and the said M. B., in her right, hereby re- mise, grant, release, and quitclaim, unto the said C. D., to his heirs and assigns, all the right, interest, and title, which they may have in and to the above described premises ; and more especially the rights of homestead and dower, which the said M. B., wife of the said A. B., has by virtue of any and all homestead exemption laws and laws of dower, now or here- tofore in force in the State of Witness our hands and seals, this day of , A. D. 18 . A. B. [L. s.] In presence of M. B. [l. 8.] (Same acknowledgment as in No. 5.) 7. Acknowledgment when Parties are not known to THE Officer, but are Identified. State of , ) { ss. County of , ) On the day of , 18 , appeared before me in per- son, A. B. and M. B. his wife, who are satisfactorily identi- fied as the individuals described in, and who executed tlie foregoing deed, by the testimony of C. D. and E. F., who de- posed upon oath that they were personally acquainted with said A. B. and M. B., and knew them to be the persons de- scribed in, and who executed said deed. And the said M. B. having been by me examined separate and apart from her husband, and the contents of said instru- ment having been by me fully made known to her, and she also being fully informed of her rights under the Homestead Laws of this State, acknowledged that she had freely and voluntarily executed the same, and released her rights of dower and homestead to the lands and tenements therein mentioned, without compulsion of her said husband. Given under my hand and seal, this day of A. I>. 18 . E. P. [l. s.'] Justice of the Peace, [or other official designation.] CHAPTER XXIX. OP MORTGAGES. Section 1. Of Mortgages of Real Estate., To constitute a mortgage, a particular form is not neces- sary, though usual and proper. The common form, in general use, differs in no respect from an ordinary deed of conveyance in fee simple, except in the condition upon which it is liable to be defeated and rendered void. The condition is usually inserted in the body of the instrument, but it would be valid if written upon the back, and leing found upon the hack of the deed, it would be good, even without signature or seal ; being presumed to be, and treated as, a part of the instrument. If the legal effect of the instrument, and the rights of the parties to it, were to be freshly (and without light from the practical operation usu- ally given to it,) drawn from the terms of an ordinary mort- gage deed, it would be deemed a conveyance of land, upon condition that if the stipulated payment be not made, or the condition in other respects performed, the estate should be- long absolutely to the mortgagee, and also that the mortgagee should take immediate possession, and hold it, exercising the usual acts of ownership till the time for performance of the condition arrives. This was the construction, in fact, which was originally put upon it : but its present construction and effect are quite different. The original construction was found to be productive of ex- treme hardship ; land being often mortgaged to secure a debt greatly below its value, and a failure to pay the debt, prompt- ly at the time, involving an absolute forfeiture of the estate, it gave to the mortgagee a most inequitable advantage. This soon induced courts of equity to interpose, and upon petition 742 OF MORTGAGES. filed by the mortgagor, setting forth the mortgage, the breach of the condition, and the forfeiture, and such excuse or miti- gation of the failure to perform as there might be, they al- lowed the mortgagor to redeem the estate, after the forfeiture had become perfect at law, by paying the debt and interest and performing such other conditions as a court of equity, under the special circumstances of the case, saw fit to impose. The right thus to redeem came naturally, on account of its origin, to be called an equity of redemption. It extends to the heirs and to subsequent grantees of the mortgagor, and to his creditors if they have attached the es- tate ; the foundation principle being, that the principal trans- action is the loan, and the only substantial right of the mort- gagee is, to be secured for his debt. Practically, therefore, the mortgagee, instead of having an estate defeasible on performance of a condition subsequent, has really the right of acquiring an estate finally, upon foreclosure, upon breach and continued non-performance by the mortga- gor. As between the parties and their representatives, the legal estate passes, and the mortgagee has (unless expressly other- wise provided in the deed,) an immediate right to enter upon the land, or to claim the rents due from the lessees. When the security is sufficient and ample, this is not generally done ; because, whatever is the fair value of the rental, if the mort- gagee is in possession, or whatever he receives from the lessees, must be accounted for on final redemption, unless the estate is forfeited, and of course it causes the additional trouble to the mortgagee to keep and render an account, which he is willing to avoid. As between the mortgagor and all other persons except the mortgagee, the mortgage is deemed a mere security, and the mortgagor is treated as the owner of the estate. The equity of redemption is attachable, while the interest of the mortgagee is not, nor is the estate of the mortgagee assignable or transmissible, except as security for and with the debt. The debt is, as to him, the principal thing, and the mortgage is merely incidental. The time originally allowed by courts of equity, within OF MORTGAGES. 743 ■which the mortgagoi' might bring his bill to redeem, was the period of the limitation for the bringing of an action of eject- ment, which was, at that time, twenty-one years. This gave to the mortgagor as inequitable an advantage as had pre- viously been enjoyed by the mortgagee ; for, though the mort- gagee might take possession of the land, yet for twenty-one years it would not be safe for him to make any valuable im- provements, as he would be liable to lose them upon redemp- tion of the land. And again, if the value of the land should rise more rapidly than the interest of the money, during this long period of time, the advantage would be entirely with the mortgagor, when he should choose finally to redeem ; while, if the land should greatly depreciate, it might fall entirely on the mortgagee. Moved by these considerations, the courts of equity again interfered, by allowing the mortgagee, at any time before the statute of limitations of actions of ejectment would run, to foreclose the mortgage, thereby Cutting off the equity of re- demption and perfecting his title. Redemption by the mortgagor after condition broken is probably still confined to courts of equity, and, in most of the States, foreclosure is also secured by bill in equity. The course of procedure is as follows : — if, after condition broken, the mortgagee desires to foreclose, he files his hill in equity, setting forth the mortgage, the breach, and the amount due, and praying that the mortgagor may be ordered to pay or to perform within a time to be limited, or be forever barred therefrom. If other parties tlian the mortgagor have become interested, as purchasers of the equity of redemption or at- taching creditors, they should be made parties defendant to the process of foreclosure. The court hears evidence of the amount due on the mortgage, and the value of the estate, and enters a decree, limiting the time within which each of the defendants, severally, may pay, or otherwise perform, or be forever foreclosed from all interest in the premises. This time is usually fixed at a period ranging from three months to a year, depending upon the particular circumstances of each individual case. Sometimes, where the security is entirely 744 OF MORTGAGES. ample, a period even longer than a year is granted. If there be several defendants, as the mortgagor and one or more sub- sequent mortgagees, the different periods of redemption lim- ited for the benefit of each are fixed upon, substantially as follows : 1st. The mortgagor, as the party ultimately liable to all parties, is to pay or perform on or before a fixed day ; then, if he shall fail to perform, the party next in the order of final liability, has a few days longer ; and so on, giving each party a few days longer than the one next behind him in interest. If none of the parties should perform on or before the day finally limited, the estate of the mortgagee becomes absolute. In Massachusetts, and perhaps in some of the other States, foreclosure may be effected by possession, either actual, or recorded and constructive, for a time limited by statute. In Massachusetts, the time limited is tbree years. The mort- gagee may make an open and peaceable entry upon the premises, and take and hold actual possession thereof for three years ; or he may make such entry in the presence of two witnesses, who sign a certificate thereof, to be written on the original mortgage deed ; or he may take an acknowledg- ment from the mortgagor that he has made such entry, and upon recording such certificate or acknowledgment within thirty days, the period of foreclosure begins to run there- from. If the mortgagee takes and retains actual possession, he is bound to keep an account of the rents and profits and apply them upon the mortgage debt ; and he will be liable, upon such accounting, for such an amount of rents and profits as, with reasonable diligence, he might have received. If the mortgagee is unable to make an open and peaceable entry, he may bring his action to recover possession as mort- gagee ; and if the debt is then due, will be entitled to a con- ditional judgment that actual possession of the land be given him by the sheriff, unless the debt, interest, and costs, be paid to him within sixty days after judgment. In such case, the period of three years actual possession required begins tc run from the time of actual delivery of the possession by the sheriff. OF MORTGAGES. 745 The mortgagee has three modes for enforcing his remedies for collection of the debt. He may bring personal action of assumpsit or contract for the money, an action at law for possession of the premises, or a bill in equity to foreclose ; and he may pursue them all simultaneously, or each succes- sively, as he may prefer. A final remedy in one form, will of course, bar further proceedings in each of the others. While the mortgagor remains in possession, he may treat the estate as if he were the owner thereof in every respect, except that he must not commit waste thereupon. If he should attempt this, by cutting down a large amount of stand- ing timber or otherwise, a court of equity will interfere by an injunction and stay his further proceedings. A mortgagee, before entry, cannot claim from the mortgagor any part of the rents or profits. A mortgagee in possession has a right to take down and remove any buildings or other fixtures so erected by him that they may be taken away without injury to the soil. It is usual to accompany the mortgage with a bond or note, containing personal stipulations for payment of the money, but this is not essential. A mortgage, taken to secure future loans, advances, or liabilities, is good, if such intent be clearly expressed therein. All mortgages of real estate are to be recorded, in precisely the same manner as deeds of absolute conveyance ; and such record is, to the same extent, notice to all the world. Where negotiable notes are secured by mortgage, and as- signed without the latter, the mortgagee becomes a trustee for the assignees and holds the mortgage for their benefit. Upon bill in equity, in behalf of the mortgagor or his as- signs, to redeem the estate, the mutual accounts of the par- ties are adjusted ; the payment of debt and interest being required of the mortgagor, and an acccount of rents and profits from the mortgagee. If several parties have become, by purchase, attachment, or otherwise, owners of the equity of redemption, either may redeem upon paying the whole debt, looking to the rest for contribution of their several shares. 746 OP MORTGAGES. The same is true of a widow entitled to dower or homestead in the land. Upon the death of a mortgagee, the debt and mortgage become personal assets in the hands of the executor or ad- ministrator. The stamps required upon a mortgage deed are, fifty cents upon every five hundred dollars or fractional portion thereof. Section 2. Of Mortgages with Power of Sale on Default. These difiFer from the common mortgage, only in the addi- tion of provisions authorizing a sale of the premises in case the mortgagor fails to perform. They are now in use in many of the States, and are fre- quently made, especially when the mortgage is given as a security for a loan of money. In such mortgages, power is conferred upon the mortgagee and his assigns, to sell the es- tate upon default being made and continued for a stipulated period. Provision is usually made in such deeds, for notice of the time and place of sale, that it shall be at public auc- tion, &c., and for such other matters as will secure fairness in the disposal of the property, and the application of the proceeds. The forms in common use vary consid«rably : but the one we have selected and subjoined as No. 2, "Eeal Estate Mort- gage, with Power of Sale," will be found to embrace all that it is necessary to provide for. Under a power of sale in the manner given in said form, a valid sale may be had after the death of the mortgagor. The words, " all costs and expenses," inserted in the form, will cover a reasonable amount paid for legal advice, and proper compensation to the mortgagee for time and trouble. In Varnum vs. Meserve, 8 Allen, 158, thirty dollars was al- lowed for legal advice, and twenty dollars for the mortgagee's time and trouble. If the parties desire to secure to the mortgagee a fixed amount, which shall cover these items, it may be done by a stipulation for a reasonable commission on the gross amount of the sale, to be allowed to the grantee or OP MORTGAGES. 747 his representatives for personal service and for legal advice and service. In addition to the stamps put upon a common mortgage deed, it is prudent to affix to a deed with power of sale, a one dollar stamp, on account of the power of attorney which it contains. As authority upon the subject of mort- gages with power of sale, see Kingsley vs. Ames, 2 Met., 29, 30 ; Roarty vs. Mitchell, 7 Gray, 243 ; Montague vs. Dawes, 12 Allen, 397. As authority upon the subject of mortgages to secure future advances, see Commercial Bank t'S. Cunning- ham, 24 Pick., 270 ; Hills vs. Farrington, 6 Allen, 80 ; Bos- well vs. Goodwin, 31 Conn., 81 ; Stone vs. Lane, 10 Allen, 74. Section 3. Mortgages of Personal Property. The mortgages of which we have spoken relate to realty : but personal property may also be mortgaged. Many of the rules applicable to mortgages of real estate apply also to those of personal property. The difFerence in the character of the property has, however, induced some changes in the laws regulating personal mortgages. A mortgage of personal property, where the mortgagee takes and retains possession thereof, is in the nature of, and very similar to, a pledge. It is believed, that all personal property, and any profits aris- ing thereout, may be the subject of a mortgage, which shall be valid, not only as between the parties, but as to all the world, if possession be taken Mid retained by the mortgagee. Without such possession, it is valid only between the parties and their representatives, unless the local statute law pre- scribes such formalities of execution and such registration, as shall, by force of the statute, constitute it a valid mortgage, and notice to all the \?orld. In some of the States, (as Connecticut,) the doctrine of the common law applies to the mortgage of all personal pro- perty, except certain specified articles, which may be legally mortgaged, by an instrument executed with the formalities ' required for a mortgage of real estate, and recorded in the registry of real estate deeds : but in most of them, the stat- 748 OF MORTGAGES. utes regulating this matter make no distinction between the different kinds of personal property, but simply provide that mortgages of personal property shall be recorded in the place and manner particularly named, and such record dispenses with delivery of possession. The ordinary place of record is in the office of the clerk of the city or town where the pro- perty is located ; and where the mortgagor has his principal place of business in another town, it is sometimes provided that it shall be recorded in both towns. At common law, the same rules are generally applied, as to delivery of possession, which regulate sales of the same class of property. In a very early English case, (Ryall vs. Eowles, 1 Vesey, 348,) it was held, that a mortgagee of goods permitting the mortgagor to retain possession has no specific lien against general assignees under a commission of bankruptcy. He was held to confide in the personal security of the mortgagor, and not in his right of lien. This case has been generally followed, and is now quite universally the rule, in the absence of provisions for such registration as dispenses with delivery of possession. As to description of the property, it should, in all cases, be made full and clear, either in the body of the instrument, or in a schedule annexed and made a part thereof by reference. The rule upon this subject is, however, more stringent in some States than in others. In Connecticut, it must be full and particular ; while, in tha adjoining State of Massachu- setts, a general description will be valid, such as " all my tools and implements in my shop at B. : " and the rule there is relaxed to such an extent, that false i-ecitals may be re- jected, if what remains is sufficient to identify the articles mortgaged. A mortgage of goods, which the mortgagor does not own at the date of the transaction, though he should afterwards acquire them, is void as against attaching credit- ors and subsequent vendees and mortgagees : but property may be included, which is incidental to a present ownership of that to which it must become annexed, as wool on sheep owned by the mortgagor ; and a provision in a mortgage, in- OF MORTGAGkS. 749 tended to cover property which shall be afterwards acquired, may operate between the parties as an agreement to be exe- cuted, under which the mortgagee would have a right to take possession at such subsequent time as it should be acquired by the mortgagor, and he might then hold it, either as a mortgage or as a pledge. Moody vs. Wright, 13 Met., 32 ; Pettis vs. Kellogg, 7 Gush., 456 ; Rowly vs. Rice, 11 Met., 333. Additions of labor and materials to the mortgaged property, by the mortgagor, after the mortgage, and while it remains in his possession, will not divest the title of the mortgagee : but, if the goods are substantially unchanged in character, the benefit Of such additions will accrue to the mortgagee. Harding vs. Coburn, 12 Met., 333, 340 ; Crosby vs. Baker, 6 Allen, 295 ; Comins vs. Newton, 10 Allen, 518. In Massa- chusetts, a mortgage of a stock of goods, duly registered, is good, even where the mortgagor is allowed, not only to re- tain possession, but to sell them by retail from day to day, the same as before the mortgage: but, of course, the mort- gage will not cover new goods, piu'chased by the mortgagor to replace those sold. A mortgage of personal property may be made with a power of sale, like that usually inserted in a mortgage of I'eal estate. Hosmer vs. Sargent, 8 Allen, 97. A form for such mortgage can be readily combined from the power of sale inserted in No. 2 of forms of mortgage of real estate, if it be desired to make more careful provision for notices, advertising, &c., and the formalities of the sale, than is made in No. 3, of mortgages of personal property. A mortgage of personal property of a partnership may be made by one partner in the firm name, or in the name of each partner signed by him : but if executed only in his in- dividual name, it will pass no title. 7 Met., 244 ; 8 Allen, 102 ; Clark vs. Houghton, 12 Gray, 38. Such a mortgage need not be under seal ; and if it be sealed by one partner acting for the firm, the seal may be re- jected as surplusage, to give effect and validity to the mort- gage. Cady vs. Shepard, 11 Pick., 405. 750 OP MORTGAGES. The remedies of the inor1:gagee upon a personal mortgage are substantially the same as upon a mortgage of real estate, except as they may be modified by special statute provision, as they frequently are, and especially as to the period of time required to foreclose by possession in Massachusetts, and in some of the other States. The stamps required are the same as for a real estate mort- gage, except that, if an additional stamp be required for the power of attorney, in a personal mortgage containing power of sale, it need be only 50 cts. instead of $1. ' FORMS. MORTGAGES OF PEESONAL PROPERTY. 1. Mortgage op Furniture, Machinery, or any other Personal Chattel. I, A. B. of , in consideration of dollars paid by C. D. of , do convey to said C. D. the fol- lowing personal property, to wit : — (or, if numerous, say, mentioned in the schedule hereto annexed) — warranted free of incumbrance : upon condition, that if I shall pay my cer- tain promissory note, bearing even date herewith, given to the said C. D. or order, for the sum of dollars, according to the tenor of said note, then this mortgage shall be void. It is agreed that I shall retain possession till condition broken. Witness my hand and seal, this day of , A. D. 18 . A. B. [l. s.] Executed in presence of (a) (a) In some of the States, mortgages of personal property are to be sealed, witnessed, acknowledged, and recorded, precisely as a deed of real estate. It will do no harm in States where it is not required, as it adds to the credit of the instrument, if it should become for the interest of a creditor to attempt to set it aside as fraudulent, or, for any other reason, void. In most of the States, neither a seaZ or witness or acknowledgment is required; but even/where, if posses- OP MORTGAGES. 751 2. Another Form. I, A. B. of , in consideration of dollars to me paid by C. D. of , convey to the said CD. the following personal property, to wit : (or if the goods are too numerous to be recited, say, the goods and chattels mentioned in the schedule hereto annexed,) and now in the , in the town (city) of , aforesaid. To hold the aforegranted goods and chattels, to the said CD. and his assigns forever. And I covenant, that I am the lawful owner of said goods and chattels, and have good right to dispose of the same in the manner aforesaid. Provided, nevertheless, that if the said A. B. pay to the said C D. or his assigns the sum of dollars in from date, with interest on said sum at the rate of per cent, per annum, payable , then this deed, as also a certain note of even date with these presents, given by said A. B. to said C D. or order, to pay the said sum and inter- est at the tim-es aforesaid, shall be void. In witness whereof, I hereto set my hand and seal, this day of , in the year of our Lord one thousand eight hundred and Signed, sealed and delivered, A. B. [l. s.] in presence of See note (a) [Must be recorded.] 3. Mortgage, Power op Sale. (The following, or other conditions, may be added, if de- sired.) sion is retained by the mortgcyor, they must be recorded. The local statute law is easily accessible, and every mortgagee would do well to inform himself what it requires, before resting upon his security. A little, expended in advice before- hand, would frequently have saved Jinal loss to a careless creditor, who has taken a defective security and finds himself postponed to one who has been more vigi- lant. 762 OP MOBTOAGES. But if default shall be made in the payment of the prin- cipal or interest above mentioned, or any part thereof, then said CD. and his assigns are hereby authorized to take pos- session of the above described goods, chattels, and property, (or mentioned in the schedule hereto annexed,) and adver- tise and sell the same at public sale, or so much thereof as will be necessary to pay the principal sum, whether then or thereafter payable, with the interest thereon which may be due at the time of such sale, and all costs, charges, and ex- penses attending such sale ; paying the surplus, if any there be, to said A. B. or his representatives, on demand. It is agreed that said A. B. shall remain in possession of said property till condition broken. Witness my hand and seal this day of , 18 . Executed in presence of A. B. [l. s.j [Must be recorded.] 4. Mortgage, to Secure Indorsements. This indenture, made this day of , A. D. , between C. D. of , of the first part, and B. G. of , of the second part, witnesseth : That the said G., at the request of the said D., has agreed to indorse certain notes of hand for his accommodation, and the said D. has agreed to give the said G. security against loss or damage by reason of such indorsements. Now, in pursuance of such engagements, the said D. here- by sells, transfers, and sets over, to the said G., all the goods and effects in the annexed schedule mentioned, whereof the said D. covenants that he is the owner. To hold the said effects to tlie said G. and his assigns. Provided, that if the said 0. D. shall from time to time pay and discharge all the promissory notes which the said G. may indorse for his accommodation, as they shall respect- ively become payable, and shall secure and indemnify the said G. and his representatives from all cost and damage, on account of the liabilities that have been or njay be assumed OP MORTGAGES. 753 by him in pursuance of the agreement aforesaid, then this instrument shall be void. Provided also, and it is further agreed, that until default by the said D. in payment of any of the said notes, the said D. is to retain possession of the said effects, and to use the same -n-ithout molestation by the said G. or his represen- tatives. And the said G. agrees with the said D., that in case of his taking possession of the said property, for a breach of the condition aforesaid, he will advertise and sell the same at public auction to the highest bidder ; and, after indemnifying himself from the proceeds of such sale for the liabilities as- sumed by him, will account for and pay over the balance of the said proceeds to the said D. or his assigns on de- mand. In witness whereof, said parties have hereto set their hands and seals, this, &c. C. D. [L. s.] Executed in presenoe of B. G. [l. s.] [Must be recorded.] (a) 5. Deed op Tuust. — Personal Estate. This indenture, made the day of , A. D. 18 , between A. B. of , of the one part, and C. D. of , of the other part, witnesseth : That the said A. B., in consideration of dollars to him paid, and of the agreements hereinafter mentioned by the said C. D. to be performed, does hereby sell and convey to the said C. D. the following goods and chattels, to wit : (or, if too numerous to be recited, say, all and singular the goods and chattels mentioned in the schedule hereto an- nexed.) Note (a). — The mortgage is a conveyance or sale of goods, to become an absolute interest if not redeemed at a certain time. The execution and registrar tion is a substitute for a delivery of the articles, when they can be specified and identified by a written description, 48 754 OF MORTGAGES. To hold the property above granted to the said 0. D. and his assigns forever. And the said C.^ D., for himself and his heirs, covenants with the said A. B., that he will pay or cause to be paid to the said A. B., dollars yearly, during the terra of the natural life of the said A. B., by-four equal payments, the first payment to be made on the day of next, and the following ones quarterly thereafter. Provided always, that if the said C. D., his heirs, execu- tors, and administrators, shall at any time neglect or refuse to pay the said annual sum in the manner aforesaid, it shall be lawful for the said A. B., the property hereby granted to repossess and enjoy, as in his former estate. In witness whereof, the said parties have set their hands and seals to this and another instrument of like tenor and date. Signed, sealed and delivered, A. B. [l. s.] in presence of C. D. [l. s.] MORTGAGES OF REAL ESTATE. 6. I, A. B., of , in consideration of dol- lars to me paid by C. D. of , do hereby sell and convey unto the said C. D., his heirs and assigns, a certain parcel of land in , bounded and described as fol- lows, viz : [describe the land,] with the appurtenances thereto belonging. To hold the above granted premises to the said C. D., his heirs and assigns, to his and their use and behoof forever. And I, the said A. B., for myself and my heirs, do covenant with the said C. D., his heirs and assigns, that I am lawfully seized in fee of the afore granted premises ; that they are free from all incumbrances ; that I have good right to sell and convey the same to the said CD. and his heirs as afore- said ; and that I will, and my heirs, executors and adminis- trators shall, warrant and defend the same to the said CD., OP MORTGAGES. 755 his heirs and assigns forever, against the lawful claims and demands of all persons. Provided, nevertheless, that if the said A. B., his heirs, executors, and administrators, shall pay unto the said C. D., his executors, administrators, or assigns, the sum of dollars, in years from the date of these presents, with interest on said sum at the rate of per cent, payable semi- annually, and until such payment keep the buildings on the land aforesaid insured against fire, in a sum not less than dollars, for the benefit of the said mortgagee and his assigns, at such insurance office as the said CD. shall ap- prove, then this deed, as also a certain promissory note bear- ing even date with these presents, signed by the said A. B., whereby the said A. B. promises to pay the said sum and in- terest at the times aforesaid, shall be void. [And provided also, that, until default of the payment of the said sum or interest, or other default as herein provided, the mortgagee shall have no right to enter and take posses- sion of the premises.] (a) In witness whereof, I, the said A. B., have hereunto set my hand and seal this day of , in the year of our Lord eighteen hundred and Signed, sealed and delivered A. B. [l. s.] in presence of 7. Mortgage, Power op Sale. [After the close of the third paragraph in No. 6, add :] And provided also, that at any time after [here state the time, if weeks or months] continuance of any breach of the foregoing condition, the grantee, or [his or their, as the case (a) It is hardly necessary to make provision for continued possession by the mortgagor ; .is, while the mortgagee in the absence of any agreement to the contrary has an undeniable right to present possession, on the execution of the mortgage, the rights which the mortgagor has, to call him to account for rents and profits, will prevent his doing so, unless the dishonesty of the mortgagor or other sufficient cause render it desirable. 756 OP MORTGAGES, may 6e,] executors, administrators, or assigns, may sell and dispose of the granted premises, with all improvements that may be thereon, at public auction ; such sale to be in said of , without further notice or demand, except giving notici of time and place of sale, in each of three successive weeks, in newspaper , printed in the aforesaid : and in his or their own names, or as the attorney of the grantor, for that purpose by these presents duly authorized, convey the same, absolutely and in fee sim- ple, to the purchaser or purchasers accordingly ; and shall hold and apply the proceeds of such sale, — first, to pay and I'eimburse to said grantee all sums of money then secured by this deed, (whether then or thereafter payable, together witli interest and all costs and expenses, including all sums paid by said grantee for insurance of the premises ;) and secondly, to pay the surplus, if any, to the grantor or his as- signs ; or in case such sale shall be made under any decree of or proceeding in any court, then to the court by which such sale shall have been decreed ; and such sale shall for- ever bar the grantor and all persons claiming iinder him from all right and interest in the premises, at law or in equity. It being mutually agreed, that the said grantee or his assigns may bid and be the purchaser at such auction sale, and that no purchaser shall be answerable for the appli- cation of the purchase money. And provided also, that till some breach of the conditions of this deed, the grantee shall have no right to enter and take possession of the premises. In witness whereof, I, the said A. B., and Sarah my wife, iu token of her release of all right of dower and homestead in the granted premises, have hereunto set our hands and seals, this day of , in the year, &c. Signed, sealed, and delivered, A. B. [l. s.J in presence of S. B. [l. s.] [Must be acknowledged and recorded.] Note. — Incumbrances, &c., must be stated, and, if the grantor is mamcd, the •wife should join the husband in the conveyance of the estate, and therein release her claim to dower, and also to homestead, if there be one, although, in some OP MORTGAGES. 757 of the States {as Connecticut) a wife is ilowable only in lands of which the hus- band dies seized or possessed, in which case of course no release is required, and no release of homestead, except in States in wliich such homestead is secured to the family. 8. Discharge of Mortgage to be Entered on the Rec- ord, IN Massachusetts, &c. In many States, mortgages may be discharged by the mortgagee acknowledging payment thereof by an entry on the mortgage, which entry must be recorded in the margin of the record in the registry of deeds, or wherever the mort- gage is recorded. The following form of discharge is used in Massachusetts, Ohio, Illinois, Michigan, and several other States. B , May 1, 1859. I have received full satisfaction of the debt secured by this mortgage, and hereby cancel and discharge the same. C. D. The mortgage can also be discharged by a deed of release. 9. Satisfaction of Mortgage in Nevt York. I, A. B., of the town of , hereby certify, that a mortgage, bearing date the day of , in the year , made and executed by C. D. to me, and recorded in the office of the clerk of the county of , in Lib. of mort- gages, upon page , on the day of , in the year , is paid, satisfied, and discharged. Dated the day of , 18 . A. B. In presence of [In Connecticut, and many of the other States, the usual mode of releasing a mortgage is by deed of quitclaim ; which should be duly acknowledged, wit- nessed, and recorded, as in case of conveyance of land thereby ; but, when used simply to release a mortgage it need not be stamped.] 758 of moetgages. 10. Mortgage op Lands op Wife by Husband and Wife, WITH Power of Sale. This indenture, made the day of , in the year one thousand eight hundred and , between A. B. of , and M. B., his wife, of the first part, and C. D. of , of the second part, witnesseth : That the said parties of the first part, in consideration of to them paid, the receipt whereof is hereby acknowledged, have bargained, sold, and conveyed, and by these presents do bargain, sell, and convey, to the said party of the second part and his heirs and assigns forever, all that (here insert description,) with all heredita- ments and appurtenances thereto appertaining. To have and to hold, the said premises, with the ap- purtenances, to said party of the second part, his heirs and assigns, to his and their use and behoof, forever. Provid- ed always, and these presents are upon this condition, that if said parties of the first part, their heirs or assigns, shall pay to the said party of the second part, his executors, ad- ministrators, or assigns, the sum of , on or before the day of , in the year , with in- terest according to the condition of a bond (or note) of the said A. B. to the said CD., bearing even date herewith, then these presents shall be void. But upon any default in the payment of the money above mentioned, or of the interest thereon, said grantee, his exe- cutors, administrators, or assigns, may sell the granted premi- ses, with all improvements that may be thereon, at public auction in said , first publishing a notice of the time and place of sale, once each week for three successive weeks in one or more newspapers published in , aforesaid ; and in his or their own name or names, as the attorney of the said grantors, may convey the same by proper deed or deeds, to the purchaser or purchasers, absolutely and in fee simple ; and such sale shall forever bar the grantors and all persons claiming under them from all right and interest in the grant- ed premises, whether at law or in equity. And out of the money arising from such sale, the said gran- OF MORTGAGES. 759 tee or his i-epresentatives shall be entitled to retain all sums to them secured by this deed, whether then or thereafter pay- able, including all co^ts, charges, and expenses incurred or sus- tained, by reason of any failure or default on the part of the --said grantors or their representatives to perform and fulfill the condition of this deed or any covenant or agreement herein contained ; rendering the surplus, if any, togetlier with an ac- count of such costs, charges, and expenses, to the said grant- ors, their heirs or assigns. And it is agreed, that said grantee, his executors, adminis- trators, or assigns, or any person or persons in his or their behalf, may purchase at any sale made as aforesaid, and tliat no other purchasers shall be answerable for the application of the purchase money ; and that, until default in tlie per- formance of the condition of this deed, the grantors and their heirs and assigns may hold and enjoy the granted premises and receive the rents and profits thereof. In witness whereof, the parties to these presents have here- unto set their hand and seals, the day and year above written. A. B. [l. s.] M. B. [L. s.] Sealed and delivered, in presence of 11. Mortgage Deed by Indenture, with power of Sale and Eelease of Dower and Homestead. This indenture, made the day of , in the year one thousand eight hundred and , between A. B., of , of the first part, and C. D., of , of the second part, witnesseth : That the said party of the first part, in consideration of dollars to him paid, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, released, and conveyed, and by these presents does grant, bargain, sell, release, and convey, to the said party of the sec- ond part and his heirs and assigns forever, all tliat (here in- 760 OF MORTGAGES. sert description,) with all hereditaments and appurtenances thereto appertaining. To have and to hold the said premises, with the appurten- ances, to said party of the second part, his heirs and as- signs, to his and their use and behoof, forever. Provided always, and these presents are upon condition, that if said party of the first part, his heirs or assigns, shall pay to the said party of the second part, his executors, administrators, or assigns, the sum of dollars, on or before the day of , in the year , with interest, according to the condition of a bond [or note] of the said A. B. to the said C. D., bearing even date herewith, then these presents shall be void. But upon any default in the payment of the money above mentioned, or of the interest thereon, said grantee, his exe- cutors, administrators or assigns, may sell the above granted premises with all improvements that may be thereon, at pub- lic auction in said , first publishing a notice of the time and place of sale once each week for three successive weeks, in one or more newspapers published in said ; and in his or their own name or names as the attorney of the said grantor, may convey the same by proper deed or deeds to tlie purchaser or purchasers, absolutely and in fee simple ; and such sale shall forever bar the grantor, and all persons claiming under him, from all right and interest in the granted premises, whether at law or in equity. And out of the money arising from such sale, the said grantee or his representatives shall be entitled to retain all sums then secured by this deed, whether then or thereafter payable, including all costs, charges, and expenses, incurred or sustained by reason of any failure or default, on the part of the said grantor or his representa- tives, to perform and fulfill the condition of this deed, or any covenants or agreements herein contained ; rendei'ing the sur- plus, if any, together with an account of such costs, charges, and expenses, to the said grantor, his heirs or assigns. And it is agreed, that said grantee, his administrators, ex- ecutors, or assigns, or any person or persons in his or their behalf, may purchase at any sale made as aforesaid, and that OP MORTGAGES. 761 no other purchaser shall be answerable for the purchase money ; and that, until default in the performance of the con-' dition of this deed, the grantor and his heirs and assigns may hold and enjoy the granted premises and receive the rents and profits thereof. And, for the consideration aforesaid, I, M. B., wife of the said A. B., do hereby release unto the said grantee and his heirs and assigns, all right of both dx)wer and homestead in the granted premises. In witness whereof, the parties to these presents have here- unto set their hands and seals, the day and year above written. A. B. [L. S.J M. B. [L. s.] Signed, sealed and delivered, in presence of [Witnessed and acknowledged like any other deed.] 12. Mortgage Note. f 1000.00 H , 1st June, 1869. §! For value received, I promise to pay to C. D. or order, t: the sum of one thousand dollars, in three years from this 5i date, with interest semi-annually at the rate of six percent. per annum. b § = I' In presence of A. B. OS 13. Guaranty op Mortgage Note. H , January ,18 . For value received, and in consideration of the loan for which the above note is given, which loan is this day made at our request, we hereby jointly and severally guarantee to C. D., above named, his executors, administrators or assigns, the payment of tlie above note and interest ; and in default of pay- 762 OP MOETGAGES. ment by the promisor, we hereby promise to pay the same on demand, waiving demand on the promisor, and notice. 14. Assignment of Mortgage, without Covenant or Warranty. I, C. D., of , mortgagee named in a certain mort> gage deed given by A. B. to secure the payment of one thou- sand dollars, dated January , 18 , and recorded in H. Registry, Book , Page , in consideration of one thousand dollars to me paid by E. P., of , do hereby assign to the said E. P., the said mortgage deed, the note and claim thereby secured, and all my interest in the estate thereby conveyed. To hold the same to the said E. P., and his heirs and assigns, to his and their use and behoof forever. In witness whereof, I, the said C. D., have hereunto set, &c. [Should be witnessed and acknowledged.] 15. See " Assignment," Porm No. 3, Assignment op Mort- gage WITH Covenant as to amount due. 16. Assignment of Mortgage with Covenant as to amount due, and General Warranty of Title as Mortgagee. I, C. D., of , mortgagee named in a certain mort- gage deed given by A. B. to secure the payment of one thou- sand dollars, dated January , 18 , and recorded in H. Registry, Book , Page , in consideration of one thousand dollars to me paid by E. P. of , do hereby assign to the said E. P. the said mortgage deed, the note and claim thereby secured, and all my interest in the estate thereby conveyed, hereby authorizing him to collect the money due on the same, in my name or otherwise, but at his own cost OP MORTGAGES. 763 and charges ; covenanting that the sum of dollars, be- sides interest, is now due thereon. To have and to hold the same to the said E. P., and his heirs and assigns, to his and their use and behoof forever. And I hereby covenant with said E. P., that I am entitled to possession of said premises as mortgagee ; that the estate conveyed by said mortgage is free from all incumbrances ; and that I will warrant and defend the same to said E. P., his heirs and assigns forever, against the lawful claims and demands of all persons, subject, however, to the right of the mortgagor, his heirs and assigns, to redemption therein. In witness whereof, I, the said C. D., have hereto set my hand and seal, this day of , 18 . A. B. [l. S.J Signed and sealed in presence of [To be acknowledged.] 17. Extension op Mortgage, as to time op Perpormance OP Condition. We, L. M., assignee of a moi'tgage from A. B. to C. D. dated January 1, 1869, and recorded in H Registry, Book , Page , and N. 0., the present owner of the equity of redemption of the estate described in said mort- gage, hereby mutually agree to extend the time of payment of said mortgage and of the note secured thereby, until the first day of January, in the year eighteen hundred and seventy, anything in the condition of said mortgage to the contrary notwithstanding, the interest being payable semi- annually as heretofore. Witness our hands and seals, this January 1, 1869. L. M. [l. s.] In presence of N. 0. [l. S.J [Should be acknowledged.] 764 op mortgages. 18. Discharge op Mortgage, Sufficient Everywhere if Acknowledged and Recorded like a Deed op Conveyance. I, C. D. of, &c., the mortgagee named in the mortgage, dated, &c., and recorded, &c., have received from A. B., the mortgagor named in said mortgage, payment and satisfac- tion of the same ; and in consideration thereof I hereby cancel and discharge said mortgage, and release and quit- claim, unto the said A. B. and his heirs and assigns forever, the premises therein described. Witness my hand and seal this day of , 18 . C. D. [l. S.J 19. Release op Part of Mortgaged Estate. I, C. D. of , mortgagee named in a mortgage, dated, &c., and recorded, &c., in consideration of one thousand dol- lars paid by A. B., the mortgagor named in said mortgage, hereby release and forever quitclaim unto the said A. B., a certain parcel of land situated, &c., being a portion of the premises conveyed by said mortgage deed and bounded as follows : [here describe the part released.] To have and to hold the same to the said A. B. and his heirs and assigns, to his and their own use and behoof forever. But this release shall in no event be held to affect or im- pair the right of the said C. D. to hold the remainder of the land conveyed in said mortgage deed, and not hereby re- leased, as security for the sum remaining due upon said mortgage. Witness my hand and seal this day of , 18 . C. D. [l. s.] 20. Acknowledgment by Mortgagor op Entry to Foreclose. I, A. B., the .within named mortgagor, [or I, L. M., the person claiming under the within-named mortgagor,] hereby acknowledge and certify, that 0. D.,the within-named OP MORTGAGES. 765 mortgagee, [or E. F. the assignee of the within mort- gage,] has, [by R. S., his agent thereto duly authorized,] this day made an open, peaceable, and unopposed entry \ipon the premises described in the within mortgage, for breach of the condition therein named. Dated this day of , 18 . 21. Certificate op Witnesses to Prove Entry to Foreclosure. We hereby certify, that we were this day present and saw C. D., the mortgagee named in a certain mortgage deed given by A. B., dated, &c., and recorded, &c., [or E. F., the as- signee of a certain mortgage given by A. B. to C. D., dated, &c., and recorded, &c.,j make an open, peaceable, and unop- posed entry on the premises described in the said mortgage, for the purpose by him declared of foreclosing said mortgage, for breach of the condition thereof. Dated this day of , 18 . P. R. S. T. State of County of H ,July ,18 . Then personally appeared the above-named P. R. and S. T., and made oath that the above certificate, by them sub- scribed, is true. Before me,' X. Y., Justice of the Peace. 22. Surrender of Possession by Mortgagee. I, C. D., of , mortgagee named in a certain mort- gage dated, &c., and recorded, &c., in consideration of the payment to me this day by A. B., the mortgagor named in said deed, of the interest to this date upon the principal sum secured by said mortgage, and of the further sum of one dol- lar, the receipt of all which is hereby acknowledged, do here- T66 OF MORTGAGES. by surrender to the said A. B., and his heirs and assigns, possession of the real estate described in said mortgage, which possession was taken by me on the day of , 18 , for breach of the condition of said mortgage, and evi- dence of which is recorded in said Registry, Book , Page . But it is expressly understood and agreed, that noth- ing herein contained shall in any way, except as above spe- cifically provided, affect or impair my rights or interest under the said mortgage, the whole amount of the principal sum secured by which is still due and unpaid. Witness my hand and seal, this day of , 18 . A. B. [l. S.J [Should be witnessed and acknowledged.] 23. Proceedings upon Sale by Mortgagee under Power OP Sale. (a) Affidavit of Default, ^c. I, E. P., of, &c., the assignee of a certain mortgage deed given by A. B. to C. D., dated, &c., and recorded, &c., on oath depose and say, that default was made in the payment of the principal sum mentioned in the condition of said mort> gage deed, and of the interest thereon, the said principal and six months interest having become payable on the day of last, and not having been then or at any time paid or tendered to any person authorized to receive the same ; and that pursuant to the provisions of said mortgage deed, I pub- lished on the second, ninth, and sixteenth days of now last past, in the " ," a newspaper published in aforesaid, a notice of which the following is a true copy: (5) Notice of Mortgagees' Sale. By virtue of a power of sale contained in a certain mort- gage deed given by A. B. to C. D., dated. &c., and recorded, &c., will be sold at public auction upon the premises [or, at the office of M. N. R. & Co., No. , street, H ,] OP MORTOAGES. 767 on , the clay of , 18 , at 11 o'clock iii the forenoon, all and singnlar the premises conveyed by said mortgage deed, namely : a certain parcel of land, &c., gage deed, at public auction, by M. N. R., a duly licensed auctioneer, to G. H., of &c., for the sum of dollars ; which amount was bid by the said G. H., and was the highest bid therefor made at said auction ; and I have this day, in pursuance of said power contained in said mortgage, de- livered to said G. H. the foregoing deed of said mortgaged premises. Witness my hand, this day of , A. D. 18 . E. P. (t^) Deed of Assignees. Whereas, A. B. did by his mortgage deed, dated, (fee, and recorded, &c., convey the premises hereinafter described to one C. D., which said mortgage has by deed of assignment, dated, &c., and recorded, 18 , made by E. P. of , to said A. B., of a certain dwelling house and lot, with the appurtenances, situate in , for the term of years, at the yearly rent of dollars. To have and to hold the same unto the said C. D., from the day of next, for the remainder yet to come of the term of years therein mentioned. And I, the said C. D., agree with said A. B., that I will pay the rents and perform the covenants and conditions in said lease, and if I shall fail to pay the rents or perform any covenant in said lease, then, at the option of said A. B., this assignment shall be void. "Witness our hands and seals, this day of ,18 A. B. [L. S.J CD. [L. S.J In presence of The second will, of course, be used when the assignment cannot be written upon the lease. 50 786 of landlord and tenant. 10. Notice to Quit. Mr.. : You are hereby notified to deliver up to me possession of the house and lot, known as No. , in street, in the city of , and to remove therefrom on the day of jiext, it being my intention to determine the tenancy. A. B., Landlord, Jan'y 18 . 11. Same, — By the Tenant. Mr. : Take notice that I shall, on the day of next, de- liver up to you the premises I now occupy as your tenant, known as No. , in street in the city of , it be- ing my intention to determine the tenancy. CD. Tenant. Dec. 18 , 12. Same, by Landlord f(^e Non-payment of Rent. Mr. : I give you notice to deliver up to me possession of the house and lot known as No. in street in the city of , the rent for which you neglected to pay for the past , and to remove therefrom at the expiration of days from this date. D. A., Landlord. April 18 . 13. Notice to Quit or pay Double Rent. Mr. : You are hereby notified to surrender and yield up to me, on the day of next, possession of the premises in OP LANDLORD AND TENANT. 787 street, in the city of , which you now hold of me. In failure whereof I shall require and insist upon double tlie value of the said premises, accordmg to the statute in such cases made and provided. A. B., Landlord. May 18 . In some States, when the tenant holds over after notice to quit, the landlord is entitled to double rent. 14. Special Lease, with Covenants as to Fire, &c. This agreement, made this day of , A. D. 18 , between A. B. of , of the first part, and C. D. of said , of the second part, witnesseth : That the said A. B. doth hereby demise and lease unto the said CD., the store and premises numbered , on street, in said , and being the same lately occupied by M.N. To have and to hold the same, for the term of years from and including the first day of May next, [or the day of tlie date hei-eof.] Paying therefor rent at the rate of one thousand dollars per annum, to be paid in equal quarterly payments, the first of such payments to be made on the first day of August next, and in like proportion for any fraction of a quarter, in case this lease shall be determined between two rent days. And the lessor covenants with the lessee and his assigns, that he and they shall peaceably hold and enjoy the said premises as aforesaid. And the lessee covenants with the lessor and his assigns, that he will pay said rent in manner aforesaid, and also all taxes, water rates, and assessments whatsoever, whether now existing or hereafter created, that may be payable for or in respect of said premises, or any part thereof, during said term ; excepting, however, assessments for any permanent benefit or improvement to said premises, under any better- ment law or otherwise : that he will not, without the consent 788 OP LANDLORD AND TENANT. in writing of the lessor, his heirs or assigns, assign this lease, nor underlet the whole or any part of said premises, nor make or suffer any alteration or additions in or to the same ; and that he will not make or suffer any waste, or any unlaw- ful, improper or offensive, use of said premises ; that he will allow the lessor, and his assigns and their agents, at season- able times to enter upon the premises and examine the con- dition thereof, and make necessary repairs, will keep all the premises in such repair as the same are in at the commence- ment of said term, or may afterwards be put in by the lessor or his heirs or assigns, reasonable use and wearing tliereof and damage by accidental fire or otlier unavoidable casualty only excepted ; and at the end of said term will peaceably deliver them up to the lessor, his heirs or assigns, in such re- pair as aforesaid, together with all future erections or addi- tions upon or to the same. Provided always, and these presents are upon this condi- tion, that in case of a breach of any of the covenants to be observed on the part of the lessee, the lessor, or his heirs, de- visees or assigns, may, while the default or neglect continues, and without notice or demand, enter upon the premises, or on any part thereof in the name of the whole, and thereby determine the estate hereby created ; and may thereupon ex- pel and remove, forcibly if necessary, the lessee and those claiming under him, and their effects. And provided also, that in case the buildings on the said premises, or any part thereof, shall be destroyed or damaged by accidental fire, or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and occupation, then, and in such case, the rent herein before reserved, or a just and proportionate part thereof, according to the nature and extent of the injury sustained, shall be abated until the said premises shall have been duly repaired and restored by the lessor or his assigns ; or, in case the said building shall be substantially destroyed, then, at the election of the lessee or his assigns, the estate hereby created shall thereupon be determined. ' OP LANDLORD AND TRNANT. 789 In witness whereof, the said parties liave hereunto set their hands and seals, the day and yeai- first above written. A. B. [L. S.J C. D. [l. s.] Executed in presence of [Should be acknowledged like a deed.] 15. Lease upon Shares. This indenture, made the day of , A. D. 18 , witnesseth : That A. B. hereby leases to C. D., all that farm of land in the town of , heretofore occupied by A. B. as a home- - stead, bounded and described as follows : [here insert boun- daries and description,] containing acres, more_or less, with the dwelling house, barns and other buildings thereon, and the appurtenances thereto appertaining. To be held by the said C. J), for the term of years, from the day of next, he paying therefor rent as follows, to wit : for the dwelling house and buildings, dollars jxt year, payable in four equal quarterly payments, the first pay- ment to be on the day of next ; and for the use of the land, one-third of the entire produce thereof, to be har- vested by the said CD. and delivered to the order of said A. B., at such place or places as he may direct, not more than miles distant from said dwelling house. Said C. D. agrees, that he will treat such premises in a husband-like manner ; that he will expend the crops thereon, except the one-third to be delivered to the said A. B. as afore- said ; that he will not make or suffer any waste thereof, nor underlet the same, or any part thereof, without the consent of the lessor in writing ; tliat he will pay all taxes levied upon said estate during said term ; that he will deliver up possession of the said premises at the end of said term, or the earlier terminaltion of this lease, in as good order and condition as the same are now in, or may be put in by said lessor, reasonable use and wear thereof, accidents by fire and 790 OP LANDLORD AND TENANT. other casualties, happening without the fault of the lessee, excepted. In witness whereof, said parties have hereto set their hands and seals, the day and year first above written. A. B. [L. S.J C. D. [l. s.] Executed in presence of [Should be acknowledged and recorded like a deed.] 16. Lease for Mining Purposes. This agreement, made the day of , A. D. 18 , between A. B. of , of the first part, and C. D. of , of the second part, witnesseth : That the party of the first part, in consideration of the agreements hereinafter contained, on the part of the party of the second part to be performed, hereby grants to said party of the second part and his assigns, the right to enter upon lanils hereinafter described, and search for mineral and fossil materials, and to conduct mining and quarrying opera- tions to any extent he or they may desire. Said party of the second part is to pay for the land, upon which buildings necessary for his uses in the business afore- said shall stand, a reasonable rent, and is to occupy the land for no other purpose than as aforesaid. Said lands are located in , and are bounded and de- scribed as follows : [here insert description.] Said party of the second part hereby agrees to pay said party of the first part, his heirs or assigns, an annual rent of dollars, payable in four equal quarterly payments ; the first payment to be on the day of next : and also agrees, that no unnecessary damage shall be done to said lands in conducting said operations. This lease is to continue, the rent being paid as stipulated, and no unnecessary damage being done to the lands, for the full term of ten years from the day of next. Provided, however, that unless mineral or fossil material, OF LANDLORD AND TENANT. 791 of practical value for mining purposes, shall be found within two years from the date hereof, this lease may be terminated by the lessee at any time thereafter, at three months' notice. Witness our hands and seals, the day and year first above written. A. B. [l. s.] C. D. [l. s.] Executed in the presence of [Should be acknowledged and recorded like a deed.J CHAPTER XXXI. OF EMINENT DOMAIN. Every nation, and every independent State, has a full and complete right of property, to the exclusion of all other na- tions and States, in all the realty within its territorial limits, including not simply the public domain and property of the nation, but also the private property of individuals. As it relates to private property, this right of the public is called the right of eminent domain. It includes the right to tax, regulate, appropriate to public use upon payment of compen- sation, and without compensation whenever the owner has been guilty of acts of forfeiture. It is a theory everywhere recognized, that rights of private property must be made subservient to the public interest and welfare. On this ground rest those rights of public conven- ience and necessity, which are the bases of all applications for the adverse appropriation of private property to the lay- ing out and use of highways, railways, canals, &c. A more doubtful application of the principle, but one which has been sustained in many of the States, has been made by what are called " mill-acts," by force of which individuals and corpo- rations desiring to appropriate flowing water to the creation of power for manufacturing and mechanical purposes, &c., are permitted adversely to flow the lands of riparian proprie- tors above them, upon payment of compensation, to be ascer- tained in the manner pointed out by the statutes. All private property is held subject to this right. Statutes are sometimes passed authorizing the blowing up or other destruction of buildings, in cases of emergency ; as, to pre- vent the spread of a conflagration or of an epidemic. This OF EMINENT DOMAIN. 793 right is, however, one that exists at common law, without statute provisions, resting on the plea of necessity, and may be exercised by private individuals, as well as by municipal oflScers. Tliis right, and the remedy of a party injured to recover his damages, have been discussed in the following, among other cases. Mayor of New York vs. Lord, 17 Wend., 285 ; Stone vs. Mayor of New York, 25 Wend., 157 ; Surocco vs. Geary, 3 Cal., 69 ; American Print Works vs. Lawrence, 1 Zabr., 248 ; Hale vs. Lawrence, 1 Zabr., 714 ; 3 Zabr., 590. Whether, in the absence of constitutional regulation, the owner of private property appropriated to public use is en- ' titled to compensation, is not, as to all nations, universally agreed. But, in the United States, the Constitution' specially provides, that private property shall not be taken for public use without just compensation. There are similar provisions in the constitutions of most of the States of the Union. The mode of obtaining compensation in such cases is fixed by statute regulations, which provide some tribunal for the assessment of damages, before which each party may meet and discuss their claims on equal terms. If proceedings for the appropriation of private property be had, without such preliminary provisions for indemnity, an injunction will be issued, on application by the owner of the property. See Gardner vs. Newbury, 2 Johnson's Chan., 1G2 ; Henderson vs. New Orleans, 2 Louisiana, 416. Whether a statute, which assumes to appropriate private property for public uses, will be held so absolutely void as that all persons acting under it will be rendered liable to parties, whose property they may injure or destroy, as tres- passers, the authorities are not agreed. In cases in Massa- chusetts, arising under an unconstitutional liquor law, the ofl&cers destroying the property were held so liable. As a general rule, it must be left to the discretion of the legisla- ture, to determine what are such public uses as authorize the appropriation of private property : but, in cases in which the legislature should attempt to take the property of A. and give it to B. ; or, if they should vacate a grant or a fran- 794 OF EMINENT DOMAIN. chise withoiat compensation, (except upon forfeiture,^ such laws would be unconstitutional and void. Whether, where land, already taken for a public use, is appropriated to an additional servitude, the owner is entitled to further compen- sation, the cases are not agreed. See Chase vs. Manfg. Co., 4 Cush., 162 ; Williamson vs. N. Y. Central R. E. Co., N. Y. Though real property be thus protected against appropria- tion without compensation, it is to be understood that the government has a right so far to regulate the manner of using it, as to prevent injury, annoyance, or danger to others, or to the public. Thus, the location of slaughter-houses, or the carrying on of unwholesome trades, operations offensive to the senses, the deposit of powder, the propulsion of cars by steam' power, the erection of buildings of wood or other combustible materials, and the burial of the dead, may all be regulated, and in territory thickly populated, as a large city, may be interdicted. This is upon the principle, that every person must so use his property as not to injure others, and that private rights must be made subservient to the gen- eral welfare. It was formerly held, that the grant by the State of a fran- chise, as the privilege of making a road or a bridge, or establishing a ferry or a railroad, and taking tolls and other compensation for the same, contained an implied cove- nant, on the part of the government, not to invade or dimin- ish the rights thus conferred ; and Chancellor Kent sustains this doctrine as follows : " The law, in consideration of duties imposed, provides a recompense, which may be exacted from persons using the road or ferry, and, of course, it will protect him against any new establishment, which is calculated to draw away custom, to its prejudice. If the creation of the franchise is not declared to be exclusive, yet it is necessarily implied in the grant ; as in the case of a grant of a ferry, bridge, turnpike, or railroad, that the government will not, either directly or indirectly, interfere with it, so as to destroy or materially impair its value. Every such interference, whether it be by the creation of a rival franchise or other- wise, would be in violation or fraud of the grant, &c." But OP EMINENT DOMAIN. 795 the modern and better opinion seems to be, as expressed by the learned editor (Prof. Greenleaf) of Cruise's Digest, in a note to the article on Franchises, Title 27, as follows : " It is with great deference submitted, that an important distinction should be observed between those powers of government, whicli are essential attributes of sovereignty, indispensable to be always preserved in full vigor, such as the power to create revenues for public purposes, to provide for the common de- fence, to provide safe and convenient ways for the public ne- cessity and convenience, to take private property for public uses, and the like ; and those powers, which are not thus essential, such as the power to alienate the lands and other property of the State, to make contracts of service, or of purchase and sale, or the like. " Powers of the former class are essential to the constitu- tion of society, as without them no political community can well exist ; and necessity requires that they should continue unimpaired. They are entrusted to the legislature, to be ex- ercised, not to be bartered away ; and it is indispensable, that each legislature should assemble with the same measure of sovereign power which was held by its predecessors. Any act of the legislature, disabling itself from the future exer- cise of powers intrusted to it for tlie public good, must be void, being in effect a covenant to desert its paramount duty to the whole people. It is, therefore, deemed not competent for a legislature to covenant that it will not, under any cir- cumstances, open another avenue for the public travel, within certain limi'^s or a certain term of time ; such covenant being an alienation of sovereign powers, and a violation of public duty." Greenleaf 's Cruise, Vol. 2, page 68, note. For a fuller consideration of this subject, and a reference to numerous authorities, see Kent, 3 vol., 601, 2, and notes ; Kent, 2 vol., 412 — 422, and notes ; Greenleaf's Cruise, 2 vol., 67 — 70, and notes ; Redfield on Railways, Ch. 11, pp. 111—184. CHAPTER XXXII. OP MAERIAGB AND DIVORCE. Section 1. Of the Law of Marriage in the United States. The American idea of marriage is, a civil status or condi- tion, existing wliere one man and one woman are legally united for life, as to those relations and purposes which orig- inate in the distinctions of sex. It is usually denominated a contract ; but it differs, and, in the interest which the pub- lic have in its regulation, enforcement or dissolution, is dis- tinguished from all other species of contracts. It has not ordinarily been held to be embraced within the constitutional inhibition of State legislative acts impairing the obligation of contracts. There is, however, as to this, a distinction be- tween the marriage contract per se, and those property rela- tions which are usually attendant upon it. It has been held in New York, and perhaps in other States, that a law, chang- ing the rights of a husband or wife in the estate of the other, passed subsequently to their marriage, would be, as to them, void. Parties about entering into the marriage relation are usually permitted to regulate, subject to some restrictions, their rights of property, by any collateral contract. While, in America, marriage is regarded by the law merely as a civil contract, it differs, as we have before stated, from other contracts. Judge Story, in a note to Sect. 108 of the Conflict of Laws, says : " I have, throughout, treated mar- riage as a contract, in the common sense of the word, &c. But it appears to me, to be something more than a mere con- tract. It is, rather, to be deemed an institution of soeieti/, founded upon the consent and contract of the parties ; and, in this view, it has some peculiarities in its nature, character, OP MARRIAGE AND DIVORCE. 797 operation, and extent of obligation, different from what be- long to ordinary contracts." Most civil contracts may be rescinded and annulled, by the joint act of the parties upon their mere volition, with or without cause. This is not true of the contract of marriage, as we shall have occasion to see in the section upon divorce. Marriage has been defined by a well known law writer as, " an agreement, according to the forms made necessary by the municipal law, between a man and woman, both of whom shall be of sound mind, of the requisite age, capable of con- tracting marriage generally, and with each other, and capable of sexual intercourse. These several conditions or elements must combine." We will further consider the subject in the order siiggested by this definition. 1. Tliere must be an agreement. This, of course, implies mutual assent ; and where a marriage is procured by force or fraud, by conspiracy or by duress, or is the result of mistake or error, it is void, and would be set aside upon application to the proper court, by decree of imllity ; and, before such decree, would be treated as null, by any court in which its validity should be incidentally drawn in question. 2. It is said tire agreement must be, " according to the forms made necessary by the municipal law." In almost all States and countries, certain forms are prescribed as proper to be observed upon the celebration of marriage. Some of the States require, that it shall be celebrated by a magistrate or clergyman ; that if the male be under the age of twenty- one years, or the female of eighteen years, it shall not be solemnized without the consent of parents or guardians ; that there shall have been previous publication of the inten- tion of marriage, &c. But, while a marriage without publi- cation of bans or consent of parents, &c., will expose the parties solemnizing it to penalties, for breach of the statute regulation, yet, a marriage so had would be legal and bind- ing, if it be in other respects lawful, and consummated with a belief of its validity. It is, undoubtedly, competent for the legislature to provide expressly that marriages, not celebrated according to the prescribed forms and solemnities, shall not 798 OP MARRIAGE AND DIVORCE. be valid. But whether, in tlie absence of such express pro- vision, a marriage entered into by a mere contract between the parties, in wliich each assumes to the other the relative duties of husband and wife, unaccompanied by any of the ceremonies, formalities or solemnities prescribed by the local statute law, would be held valid, is a question not entirely settled. The subject is discussed in the following cases : Clayton t^s. Wandell, 4 N. Y. (4 Comst.,) 230 ; Queen vs. Millis, 10 CI. &Fin., 534; Loring vs. Tliorndike, 5 Allen, 269. See also Reeves, Dom. Relations, 196, 200, 290. The courts of New York seem to sustain the validity of such a marriage. Clayton vs. Wandell was decided by the highest court of the State of New York, and establishes for that State the position that " marriage is a civil contract, and all that is essential to its validity is, a present agreement, between com- petent parties, to take each other for husband and wife." In the same court, (Cheney vs. Arnold, 15 N. Y., 345,) the effect of a contract to marry in the future, followed by cohabitation, is discussed. The case of The Queen vs. Millis was elaborately argued and exhaustively discussed, by the chancellor and law lords, in the English House of Lords, and is a most valuable case. It is referred to in the case Loring vs. Thorndike, (5 Allen, 269,) where the Supreme Court of Massachusetts says : " Upon the broader and more difficult question, which has been raised and elaborately argued, &c., whether as a contract by present words, followed by cohabitation as husband and wife, the proceedings which occurred in tlie presence and with the sanction of the consul of the United States, did not constitute a legal and valid marriage, under and by force of tlie principles of the common law, the authorities are, accord- ing to the views expressed by the eminent judges by whom the whole subject was most laboriously examined and discus- sed, in the case of The Queen vs. Millis, 10 Clark & Finelly, 584, remarkably variant and conflicting." They put the decision of Loring vs. Thorndike upon other OP MARRIAGE AND DIVORCE. 799 grounds, and expressly leave that undecided, as to Massa- chusetts. Judge Reeve of Connecticut says, (Domestic Relations, p. 196,) " There is nothing in the nature of a marriage con- tract that is more sacred than that of other contracts, that reqiiires the interposition of a person in holy orders, or that it should be solemnized in a church. Every idea of the kind, entertained by any person, has arisen wholly from the usur- pations of the Church of Rome on the rights of the civilian. She claimed the absolute control of marriages, on the ground that marriage was a sacrament and belonged wholly to the management of the clergy. The solemnization of a marriage by a clergyman was a thing never heard of among primitive Christians, until Pope Innocent III. ordered it otlierwise. The only ceremony in practice among them was, for the man to go to the house where the woman dwelt, and in the pres- ence of witnesses lead her away to his own house. It is a mere civil transaction, to be solemnized in such a manner as the legislature shall direct, whether by a clergyman or any other person." It is clearly prudent for all parties to this most important of all contracts, that the local regulations, whatever they may be, shall be complied with, that no ques- tion of its validity may arise. It is a well settled, general principle of law, that a marriage, valid hy the local law of the place of its celebration, though the parties be but transiently there, and though the marriage would be invalid by the law of their domicil, and even thoiigh there contracted in express and intentional evasion thereof, is good everywhere. Story, Conflict of Law, sections 79-81, and cases cited. See also, Medway vs. Needham, 16 Mass., 157 ; Putnam vs. Putnam, 8 Pick., 433. Since the decision of the two cases last cited, this rule has been changed in Massachusetts, by the enactment of a statute, providing sub- stantially that when any resident of the State shall, for the purpose of contracting marriage contrary to Massachusetts law, go abroad, with the intent to return after having the marriage solemnized in another State or country, it shall there be void. It would, probably, be competent for a legis- 800 OF MARRIAGE AND DIYORCE. lature to abolish common law rule altogether, and refuse to recognize any foreign marriages, except such as conform in contract and ceremonial to its own regulations. Such a pro- vision, however, as to persons domiciled in the foreign coun- try at the time their marriage was solemnized, would be not only inconvenient and oppressive upon the individuals spec- ially interested, but a violation of that comity which States and nations owe to each other. " No peculiar ceremonies are requisite, at common law, to the valid celebration of a marriage. The consent of the par- ties is all that is required, and that consent is all that is re- quired by natural or public law. If the contract be made by word of present and effective agreement, and remains with- out cohabitation, or by an agreement to take effect in the future and be followed by consummation, it amounts to a valid marriage, in the absence of all civil regulation to the con- trary ; whicli the parties cannot dissolve, and which is equally binding as if made with special formalities." 2 Kent,- 53. 3. " Between a man and woman of sound mind." Persons of unsound mind are incapable of making a valid marriage contract. The marriage would be void if one of the parties was at the time insane from delirium tremens, or were so drunk as to be incapable of entering into an ordinary contract. But while such a marriage is void, " the existence and ex- tent of the mental unsoundness and how far it may be suffi- cient, by the darkness and disorder which it brings upon the human faculties, to make void the marriage contract, may sometimes be a perplexing question, extremely distressing to the injured party, and fatal to the peace and happiness of families." Until the question is settled by a judicial tribu- nal, it must be left in uncertainty, whether the relation of husband and wife lawfully exists. It is quite manifest, that such a question should be put finally and satisfactorily at rest by proper judicial investigation. The question made in such cases is, whether the mind is unsound and deranged, to such an extent as to disqualify the party from conducting himself with personal safety to himself and others, and from properly OF MARRIAGE AND DIVORCE. 801 managing and disposing his own affairs and discharging his relative duties. 4. The parties must be of the requisite age. The age of consent, by the common law of the land, is fixed at fourteen in males, and twelve in females. The law presumes that pa,rties at that age have sufficient discretion for such a con- tract. A marriage, previously contracted, may be disavowed by the parties when they arrive at that age ; or, if one of them was within that age, they will each reciprocally have the right of such disavowal when the one, who was under age, shall have reached the age of consent. 5. They must be capable of contracting marriage generally. For example : no person can marry while another husband or wife is living. Such a marriage is, at the common law, null and void. Bigamy is an indictable offence in most, if not all, the States of the Union. In some of the States, statutes have been passed, providing that the absence of one of the parties for a prescribed term of years shall prevent one, marrying under the supposition that the absent one is dead, from being exposed to the penalties of bigamy. Seven years absence is the longest period prescribed. In New York the term is five years, and in Ohio, three. There are also prohibitions consequent upon divorce, which sometimes prohibit the guilty party from again marrying. 6. Incapacity of the parties to contract with each other, arising out of affinity or consanguinity ; also statute disabili- ties, arising out of color, and disabilities annexed by the laws of some countries to divorces, whereby the guilty party is in- capable of marrying the particeps eriminis, render marriages in such cases void. 7. Physical impotence, in all cases, renders a marriage voidable. Section 2. Who may marry, and what marriages are void. A void marriage is one that is valid for no legal purpose, and the invalidity of which may be relied upon in any ques- tion arising between any parties, and whether the question of 51 802 OF MARRIAGE AND DIVORCE. marriage arises directly or incidentally. On the other hand, a marriage is said to be voidable, when it can only be enquired into by a proceeding instituted directly for that purpose, which must be prosecuted during the life time of both of the parties. Marriages between persons nearly related by consanguinity are now deemed to be, in a certain sense, a violation of the physical laws of nature, and tending to the deterioration of the race. This impediment is of universal force, throughout Christendom. It rests, however, quite as much upon the lia- bility tliat marriage between near relatives will impair the concord of families, and interfere with the purity, harmony, and freedom, of domestic intercourse, as upon the reason just given. What degrees of affinity or consanguinity should pre- vent parties from marrying each other, is a question upon which there has been great diversity of opinion, and in its discussion much learning has been expended. In the reign of Henry VIII., a statute was passed, which recited, in its preamble, "that the court of Rome, for their lucre, had invented other prohibitions than God's law admit- ted, the dispensation whereof they always reserved to them- selves, as in forbidding marriage in kindred or affinity be- tween cousins german, and so on to the fourth degree, &c.," and then enacts, that all persons may lawfully marry, who are not prohibited by God's laws ; and that no revision or prohibition, (God's law only excepted,) shall trouble or im- peach any marriage without the Levitical degrees. The learning upon this subject has always been, in England, quite voluminous, but of little use in this country ; the whole sub- ject being regulated in most, if not all, the States, by statute provisions, which are quite simple and easily understood. Those who desire to pursue the subject farther will find it thoroughly treated in " Bishop on Marriage and Divorce," and quite sufficiently, for most purposes, in Kent's 26th Lec- ture. See also " Reeves' Domestic Relations," Chapter XVI. of marriage and divorce. 803 Section 3. Settlements in Anticipation of Marriage. The statutes of the different States have greatly changed, in many of them, the property relations of husband and wife. But it is still necessary, if the wife and her friends desire that she shall be independent of her husband in the manage- ment of property and estate, and in the disposal thereof by will, that an ante-marriage settlement shall be entered into, for the purpose of accomplishing this result. These may, indeed, be made after marriage, unless the rights of creditors interfere ; but they are usually made be- fore, and are then entirely independent of, and unaffected by, the claims of creditors. The method is, to place the property of tlie wife, or such portion thereof as it is desired to set apart for her special benefit, under the control of trustees, who are to manage it independently of the husband ; and provision is sometimes made for the issue of the marriage. Such con- tracts have been often decreed in chancery, although the con- tracting parties were minors ; probably, upon the ground that, as it is within the power of minors to make the principal con- tract of marriage, they ought to be permitted, under the supervision of a court of equity, to enter into any proper agreements which are incidental thereto. Such an agreement should bind the husband, to unite with his wife in the execu- tion of any proper papers necessary to the conveyance of her estate, to allow her freely to make a will, stipulating that he shall, conform to the provisions thereof. It may properly con- tain provisions relating to any future property that may come to her during coverture, and as to all matters which the par- ties desire to regulate. Specimen forms of such contracts are hereto subjoined. Section 4. Of Divorce — General Principles. We have stated that a marriage contract, duly entered into, between parties competent to contract marriage with eaoli 804 OP MARRIAGE AND DIVORCE. other, becomes a perpetual obligation, which cannot be can- celled at the option of either or both parties. It has always been deemed the policy of the law, to hold this relation, as nearly as possible, indissoluble ; and, in general, it coniinues in force until dissolved by the death of one of the parties, or by divorce. Divorces are of two kinds : first, divorce from the bond of matrimony ; second, divorce from bed and board. It is gen- erally agreed in all christian communities, that divorces ought not to be granted, except upon important and controlling con- siderations. But upon the question, what are such important and controlling considerations ? there has been great diver- sity of opinion in legislation. Parties have been held more strictly to the contract in England than, generally, in the United States ; and again, in some of the States, divorces from the bond of matrimony are granted much more liberally, and for less controlling cau'fees, than in others. The laws governing this subject are easily found upon the statute books of each of the several States, and it is not desirable that they be given in detail here ; and only a brief reference will be had to the general principles upon which they rest. Divorce from the bonds of matrimony is granted in Eng- land, and in all our States, for the cause of adultery, and also for the cause of physical impotence existing prior to the marriage. It will be readily seen, that either of these strikes at the foundation of the marriage contract ; and there can be no doubt that an absolute divorce should be granted, when- ever either of these causes is clearly established. Beyond this, there is no general unity of sentiment ; some of the States providing that a divorce from bed and board shall be decreed, upon the wilful absence of either party for a limited number of years, extreme cruelty, gross neglect of duty, im- prisonment in the State prison, or for such general miscon- duct as permanently destroys the happiness of the petitioner and defeats the purposes of the marriage relation. In other States again, these same causes, as in Indiana and Connecti- cut, are severally made the substantive ground upon which a divorce from the bond of matrimony may be decreed. In OP MARRIAGE AND DIVORCE. 805 Indiana, no stipulated term of prior residence of the peti- tioner is required, wliicli has made that State tlie favorite resorl; of persons desiring to obtain a divorce, for reasons in- sufficient under tlic laws of the State of their residence. In Connecticut, on the other hand, unless the cause of divorce arose in the State, the petitioner must have had an actual residence therein of not less than three years. In Massachu- setts, the divorce /roTO bed and hoard is allowed for much the same reasons as in Connecticut the parties are divorced from the bond of matrimony, and parties who have remained sepa- rate for three years after a divorce from bed and board are entitled to a divorce from the bond of matrimony. Section 5. The whole matter being subject to statute regulations, and it being a question in relation to which there is the greatest diversity of sentiment, the laws and regulations will, of course, differ very widely, and we find that in many of the States, no divorce from bed and board is allowed. Indeed, by many persons, this compromise between the ex- treme views of the different parties upon the vexed question is thought to be a worse evil than a liberal, and even a lax, allowance of absolute and full divorces. Bishop alludes to it as follows : (Bishop on Marriage and Divorce, Sec. 277,) " Here also we see the origin of that excrescence, that car- buncle on the face of civilized society, that demoralizing, mock remedy for matrimonial ills, which, in the language of Lord Stowell, casts out the parties ' in the undefined and dangerous characters of a wife without a husband and a hus- band without a wife,' in the language of Judge Swift, ' places them in a situation where there is an irresistible temptation to the commission of adultery, unless they possess more fri- gidity or more virtue than usually falls to the share of human beings,' and, in the language of Mr. Bancroft, ' punishes the innocent more than the guilty,' the divorce a mensa et thoro. The sickly religious sentiment, that all marriages, whether wisely made with the sanction of heaven, or otherwise, and whether they answered a single one of the ends of the mar- iB06 OP MAERIAGB AND DIVORCE. riage institution or not, were still indissoluble, could not quite banish from the minds of men that common sense, that would revolt at compelling a woman to cohabit with a hus- band who was seeking her life, or living in adultery ; and, therefore, the separation termed a divorce from bed and board confessedly not sanctioned in scripture, was invented as a compromise between good sense and good doctrine.' " Massachusetts is an illustration of the full and liberal working of the system of the qualified divorce, and Connecti- cut of the absolute one ; and whatever may be said of the evil tendency of either and both systems, it must be admitted, by every candid and intelligent person, that notwithstanding this liberty of divorce, of the one kind and the other in the two States, or in consequence of it, " there are no States of the Union in which domestic felicity and purity, and unblem- ished morals, and matrimonial confidence and virtue, more abound," than in Connecticut and Massachusetts. It is said, that the doctrine of the indissolubility of mar- riage did not become a general tenet of the church until the council of Trent, A. D. 1563, established it as such, though it had prevailed to a considerable extent, and found its way into England and Scotland before that time ; but it is well known, that it became a doctrine of the Roman Church that marriage was a sacrament, and that the bond of union thereby created is absolutely indissoluble, except upon the dispensation of the Pope. The English Church, under Ed- ward VI, attempted to carry out the inquiry commenced by Cranmer and other leading dignitaries of the reformed church party under Henry the VIII. An able board of com- missioners discussed the subject at great length, expen- ded upon it a vast amount of time and research, and reported that in their judgment the indissoluble quality should no longer attach to the contract, but that in cases of adultery, malicious desertion, long absence, or capital enmities, the mari-iage should be dissolved, with liberty to the injured party to marry again. It is familiar history, that the Puritans not only abjured the Romish idea, that marriage was a sacrament, and, there- OP MAEEIAGE AND DIVORCE. 807 fore, indissoluble, but went to so an opposite extreme, that, in some of the colonies, clergymen were prohibited from per- forming the marriage ceremony, and it was made compulsory that parties should enter into the contract in the presence, and with the sanction of a civil magistrate. Its past history can hardly be a guide, and, from its char- acter, in which it exhibits much the same diversity as exists among the best of people at the present time, it will, per- haps, have but little influence upon the State legislation, which entirely controls the subject. The question is mainly one of social and political expediency and propriety. The State has an imperative and controlling interest in the mor- ality and the legitimate increase of its citizens. The ques- tion is now agitated from year to year, and is mainly dis- cussed upon these grounds. To hit and settle upon the true medium ground, between that idea of marriage, which places it among the sacraments, and indissoluble, even for adultery, except upon a dispensation from the Pope, which ordinary people have not the influence to procure ; and the opposite extreme, of permitting divorces at the pleasure of the par- ties, is greatly desirable, and will be the aim of all prudent legislation. It may be found, that the great difflculty lies less in the legislation than in the fraud and connivance of parties, who deceive the courts and obtam divorces, to which they are not fairly entitled, under the laws as they exist. Section 6. Of Legislative Divorces. Anciently, in England, divorces for adultery were from the bonds of matrimony : but afterward, the law was changed, and for a long period all judicial divorces in England were merely from bed and board, unless for causes existing before "the marriage. This rule is said to have been established by the Court of Star Chamber, by the Archbishop of Canterbury and other divines and civilians in 1601. The reformation in re- ligion brought with it the doctrine that the commission of adul- £08 OF MARRIAGE AND DIVORCE. tery, if not other offences, should entitle the injured party to be freed from the bond of the marriage. The commission alluded to, in the last section, as reporting changes in the law upon this suljject, failed, by reason of the deatli of Ed- ward, to establish the alterations proposed. As the doctrine had become established, it was to be ex- pected that injured parties would endeavor in some way to avail themselves of its practical benefits. As the courts had no authority, no other means could be resorted to but relief by special act of parliament, granting a divorce in each in- dividual case. Hence arose the practice, which to some ex- tent has been introduced and acted upon in these States, of granting legislative divorces. This is done in different ways. In some of the States, the method has been, to empower one of the judicial tribunals to investigate the cause alleged, and grant the divorce if the complaint is sustained. In others, the English practice is adopted, of enacting directly a decree of nullity or a sentence of ^divorce. "We have seen, in Chap- ter I, that the British Parliament exercise a higher or more unrestrained power than any legislative assembly in this coun- try. It is doubtful, however, if, in this particular, our State legislatures have any less authority than the English Par- liament, unless where, as in some of the States, they are re- strained by constitutional prohibitions. The question has been frequently agitated, whether our legislatures are not restrained, in all cases, by considerations arising out of some of the provisions of the Constitution of the United States or of the particular State. In the first place, some have claimed, that such divorces by a State legislature are an infringement of the provision of the Constitution of the United States, that no State legisla- tion shall " pass any law impairing the obligation of con- tracts." But, as we have stated in the first section of this chapter, the marriage contract has not, ordinarily, been held to be embraced within that constitutional inhibition. Stoiy's Conflict of Laws, sect. 108, note. Starr vs. Pease, 8 Conn., 541 ; 16 Maine, 481 ; Bishop on Marriage and Divorce, sect. 761 ; Butler vs. Penn., 10 Howard, 402, 416. OP MARRIAGE AND DIVORCE. 809 If this contract were within this provision of the constitu- tion, tlae result would seem necessarily to follow, that noth- ing could ever be made by a State legislature a ground of di- vorce, which was not so at the time of the marriage. This has never been seriously claimed in any case. Many of the State constitutions contain a clause prohibit- ing the passage of retrospective laws. Such a law is one presci'ibing the rules by which an existing cause is to be de- cided, upon facts existing previous to the making of the law. Many retrospective laws are not only unobjectionable, but founded upon the highest considerations, and entirely benefi- cial. Such are laws healing mistakes in deeds and grauts ; for rewarding past services to the State, &c. It has generally been held, that in order to bring a retrospective act within the prohibitory provision, it must either attach penalties to , that which was innocent at the time it was done, or under- take to impair vested, property right. Changes affecting only the remedy, which a party had upon a contract at the time it was made, — for example, those which exempt the body of the debtor from imprisonment, or alter the periods of limitation for the bringing of actions, — ^liave not been held within the prohibition. Finally, it has sometimes been urged, that legislative di- vorces are wrong in principle, and should not be granted, because of their being an infringement upon the rights of the judiciary. In some of the States, it is expressly provided in their State constitution that legislative, judicial, and ex- ecutive functions shall be vested in different functionaries, and exercised by distinct persons and tribunals. But the question still remains, whether the granting of a divorce in- volves investigations purely and specially of a judicial nature. Chancellor Kent says : " The questions of divorce involve investigations which are properly of a judicial nature. And the jurisdiction over divorces ought to be confined exclusively to the judicial tribunals, under the limitations to be pre- scribed by law." It will probably be agreed, that a judicial investigation of causes alleged as proper grounds of divorce will, in most cases, be likely to be more impartial, and the 810 OP MAERIAGE AND DITOECE. result more just and equitable, than such investigations ■when conducted before a body so much more numerous, and se- lected with so much less reference to judicial qualities, as a legislature. If, however, it be granted that a legislature has the power to decree a divorce, exceptional cases, or cases which an injured party claims to be exceptional, wiU be likely, from time to time, to arise, in which judicial tribu- nals are unable to grant the relief sought, and which will be brought before the legislature. This is illustrated by the fact, that even in Connecticut, where the grounds upon which absolute divorces may be granted by the judicial tribunals are sufficiently liberal, -applications are not uhfrequently made to the legislature, and result in decrees of divorce. The proper effect of a judicial divorce may be broader, and affect the rights of property of the parties in a different manner from one procured by legislative decree. We have seen, that a legislature is prohibited by the Constitution of the United States from divesting rights, which have become vested in parties under the obligations resulting from a con- tract : but a judicial sentence of a court may. A legislative divorce, therefore, cannot divest the husband or wife of vested rights of property and bestow them on the other party. It cannot grant to the wife alimony, or anything of that nature, out of the estate of the husband. It merely dissolves the bond of matrimony ; and the results, which necessarily at- tend upon such dissolution, to wit : that when one dies the other will not be entitled to dower or curtesy, &c., are inci- dental and accessory, and not provided for by legislative enactment. Section 7. Divorce ly Judicial Decree, On the other hand, may not only affect the status of the par- ties, by placing them both in the condition of single persons, but may affect the property rights of the parties in a variety of ways. 1st, Alimony may be granted, which is an allow- ance paid by a husband under an order of a court for her OP MARRIAGE AND DIVORCE. 811 maintenance wliile she is living separate from him. It is not usually a portion of his estate assigned to her absolutely, subject to her control and to be disposed of at her pleasure, but is that proportion of the husband's estate judicially al- lowed and allotted to a wife for her subsistence and livelihood dming the period of their separation. It is, usually, a con- tinuous allotment of sums, payable at regular periods, for her support from year to year. When it will be granted, its natm-e, incidents, and amount, and out of what it will be awarded, are fully discussed by Bishop, in chapters 27, 28, and 29, of his work on Marriage and Divorce, and by Kent, in his 27 th chapter. 2d. A just and equitable division of property of the par- ties may be made upon divorce established by judicial decree, dividing the property as the law would have done if the mar- riage had never taken place, or in any other manner, which, under all the circumstances of the case, the court may deem just. This decree may extend to rights of dower and cur- tesy, and to all other property rights of the parties. Under such a decree,, it is also competent, and customary, for the courts to assign the custody of the children to one or the other of the parties, as in the judgment of the court may seem best ; subject to such provisions and conditions as will insure to the other party the rights and privileges, if any, wliich are included in the decree. Section 8. Of the Effect of Divorce in Another State. The effect of a final judgment, establishing the validity or invalidity of a marriage or dissolving it, rendered in one country, is held good in every other, in all cases where the jurisdiction of the court over the cause is conceded. See observation of Chief Justice Shaw upon this subject, in Har- teau vs. Harteau, 14 Pick., 181, 187. The embarrassment arises out. of the difficulty of determining when, and under what circumstances, the jurisdiction of the court, entering the judgment, should be conceded. The courts of several 812 OP MARRIAGE AND DIVORCE. of the States have refused to give effect to a divorce fraudu- lently procured by one of their own citizens, without an ac- tual change of domicil ; and, in some of the States, it is ex- pressly provided by legislative enactment, that no divorce shall be granted for a cause occurring out of the State, un- less the parties before such cause occurred, lived together as husband and wife in the State, nor unless one of the parties be at the time living in the State ; and also, that if an inhab- itant of the State goes out of it in order to obtain a divorce, for a cause occurring within it while the parties reside within it, or for any cause which would not authorize a divorce by its laws, a decree so obtained shall be of no force in the State. The universal enactment of similar provisions, by all the States in the Union, would materially aid in preventing the procurement of fraudulent divorces. The general subject of this Section is fully treated by Chancellor Kent, Vol. 2, pp. 83-95 ; and by Bishop, in Chapter 34 of his work on Marriage and Divorce. Secttion 9. Form of Solemnization of Marriage, and Certificate. Persons authorized to perform this ceremony should, when parties present themselves before them for its performance, be satisfied that they have a legal right to marry. When performed by a minister or priest, it should be ac- cording to the forms and customs of the church to which he belongs. If by a magistrate, no particular form is requisite. The following form may be used by either : Form op Marriage. The justice or minister may say : J. S., do you take M. B. to be your wife ? Do you promise to be to her a kind and faithful husband, so long as you both live ? To which the man assents. The justice or minister may then address the woman : M. B., do you take J. S. to be your husband ? Do you OP MAREIAGE AND DIVORCE. 813 promise to be to him a kind and faithful wife, so long as you both live ? To which she assents. The justice or minister may then declare them lawfully married. The minister or magistrate performing the ceremony should ascertain the names of the parties, their ages and residences. These he should enter in a book, and also the date of the marriage, his own name, residence, and official station ; and a record or certificate of the marriage should also be filed with the clerk of the city or town in which the marriage is solemnized. Marriage Certificate. Mr. of W., and Miss [Mrs.] of "W., were joined in marriage at B. by me, tlais day of , 18 . G. P., Justice of the Peace. Section 10. Form of Ante-Nuptial Contract. This agreement, made this 8th day of June, A. D. 1869, between E. V. of the first part, C. D. of the second part, and G. H. of the third part, witnesseth : That whereas a marriage is intended to be had between the parties of the first and third part, and the said E. V. is possessed of certain real and personal estate, to wit : [here describe the property] which she is disposed, with consent of said party of the third part, to transfer to said party of the second part, in trust for her own proper use and benefit, — Now, therefore, in consideration of the premises, and of one dollar paid by said C. D. to said E. V., the said E. V. hereby assigns and transfers, to the said C. D., all the moneys, personal property and effects above mentioned ; and hereby grants and conveys to the said C. D. the said real estate : to hold the same, both real and personal, to him the 814 OF MARRIAGE AND DITORCE. said C. D., and to his executors and administrators, for tlie uses and purposes, and upon the special trusts following, to wit: — First, That until the solemnization of said marriage, the said CD. shall permit the said E. V. to receive to her own use all the income, profits, and dividends, arising from said estate, and from any other estate which may be substituted therefor, as is hereinafter provided. Second, That after the solemnization of said marriage, and during the coverture of said E. V., said CD. shall receive and collect the income, rents, profits, and dividends of said estate, or of any other substituted estate, from time to time as the same shall be payable ; and, after deduction of proper expenses, shall pay over the same, or so much thereof as she shall not direct to be added to the principal for the purposes of accumulation, to the said E. V., upon her separate receipt therefor, and free from the control of her said husband or any other person. Third, That in case of the death of the said E. V., after the said marriage shall take effect, and during the life of her said husband, the said estate shall be reconveyed, transferred and paid over by said trustee, to such persons as the said E. v., by any writing subscribed by her in the presence of two competent witnesses, shall appoint to take and receive the same ; and in default of such appointment, so to be made by her, the same shall be transferred and paid, one-half to her husband, the said G. H., and the other half to such persons as would be the legal representatives of the said E. V. by the statute for the distribution of intestate estates ; and, in case of the death of her said husband, before such estate shall be conveyed, transferred and paid over to him, then the whole to such legal representatives. Fourth, If said G. H. shall die before the said E. V., all the property and estate then held in trust under this agree- ment shall be paid over, transferred, and conveyed back, to the said E. V. ; and until so paid over, transferred, and con- veyed, said E. V. shall be permitted to receive and collect OF MARRIAGE AND DIVORCE. 815 the rent, income, profits, and dividends thereof, for her own use. Fifth, That the said trustee shall, uponihe written request of said E. V., sell and dispose of the said trust estate, or any part of it, and invest the proceeds in other personal or real estate, accoi-ding to the written direction of said E. V. ; and the estate so purchased shall be held by the said trustee upon the trusts declared by this agreement, and may be sold and the proceeds reinvested from time to time in trust in man- ner aforesaid. And it is hereby declared, that the purchaser of any of the estate, held in trust aforesaid, shall not be bound to see to the application of said purchase money. Sixth, That in case of the decease of said trustee, or his resignation of said trust, he, or his executors or administra- tors, shall convey, transfer, and pay over, all the trust estate then held by him, to such appointee as may be named in writing by said E. V. ; and such appointee shall have all the powers, and shall hold the trust estate subject to all the pro- visions herein set forth ; and the receipt of such appointee shall be a complete discharge to said trustee, his executors and administrators ; and, in like manner, other new trustees may from time to time be appointed, as occasion may require. Seventh, And whereas it has been understood and agreed, by and between the parties hereto, that all property and es- tate, real and personal, which said E. V. may hereafter ac- quire or become entitled to, by her own earnings, by gift, devise, descent, distribution, or otherwise, should be transfer- red, conveyed, and paid over, to said trustee, and thereby be secured for the separate use of said E. V., and thereby placed beyond the control or management of said G. H., and be ex- empt from liabilities on account of his debts or obligations : now therefore, it is further agreed by said G. H., that he will, at any time during said coverture, upon written request of the said E. V. or said C. D., unite with said E. V. in such transfer and conveyance as shall vest said property, so to be hereafter at any time acquired by said E. V., or to which she may become entitled as aforesaid, in such person as may then be trustee, as hereinbefore is provided ; to be by him held 816 OP MARRIAGE AND DIVORCE. subject to the uses and purposes of said trust. And said G. H. hereby covenants and agrees, to and with said E. V., her heirs and assigns, and to and with said C. D. and his as- signs, that he will warrant and defend said estate to said'E. v., to her separate use, and to said 0. D. and his assigns, to the uses declared in this deed of trust, against the claims and demands of all persons claiming under, through, or on ac- count of him. And said party of the second part hereby signifies his ac- ceptance of said transfer and conveyance of the real and personal estate aforesaid ; and agrees to hold and manage the same, and such other estate and property as may come to him by conveyance or otherwise, as herein is provided, ac- cording to the provisions of this agreement. And said G. H. hereby signifies his assent to the provisions of this agreement, and covenants with said CD. and his suc- cessors in said trust, to permit said E. V. to receive the afore- said rents, income, and profits, to her separate use, and freely to manage, invest and re-invest the same, and to dispose of the trust estate by will or appointment, to such persons as she may prefer, and not to interfere with said trust estate, except in conformity with the provisions of this agreement. In witness whereof, said parties have severally hereto set their hands and seals, the day and year above first written. E. V. [l. S.J G. D. [l. s.] G. H. [L. s.] Executed in presence of State of ,| gg County of ,) ' On the 8th day of June, A. D. 1869, personally appeared E. v., C. D. and G. H., and severally acknowledged the foregoing instrument to be their free act. Before me, L. M., Justice of the Peace. of marriage and divorce. 817 Section 11. Another Form. Tliis agreement, made this 9th day of June, A. D. 1869, between A. B. of the one part, and C. D. of the other part, witnessetJi : That whereas a marriage is intended to be had between said parties, and whereas said A. B. is possessed of real and personal estate, to wit : [here describe the estate,] which estate it is agreed shall remain the separate property of the said A. B., and subject entirely to her individual con- trol and management, as if she were unmarried, the said C. D. not acquiring, by force of said marriage, for liimself, his heirs, assigns or creditors, any interest therein, or in the use or control thereof, or in the income, rents, profits, or divi- dends arising thereout : and whereas it is also agreed, that all estate, real or personal, which said A. B. may hereafter ac- quire or become entitled to in any manner, shall be held by her to her separate use, as aforesaid, and be thereby placed beyond the control or management of said C. D. Now therefore, it is agreed by said C. D., in consideration of said marriage and of one dollar paid to him by said A. B., that he will, at all times during the coverture of said A. B., permit her to control and manage said estate, and such estate as may hereafter come to her, as hereinbefore is named, and to receive, expend or pe-invest, the income, rents, profits, and dividends thereof, at her own separate discretion, free from his interference or control, to her own separate use. And the said C. D. hereby covenants and agrees to and with said A. B., her heirs and assigns, that he will warrant and defend said estate and property, and all such estate and property as she may hereafter become in any manner entitled to, to said A. B. against himself and his heirs, to her separate use ; that he will permit her to dispose of the same by will as she may be- queath the same ; and that he will not, in any manner, in- terfere with her absolute control thereof. Witness our hands and seals, the day and year above writ- ten. A. B. [l. s.] [To be executed and acknowledged ^ CD. [l. s.] as in the foregoing form.] 52 CHAPTER XXXIII. OP HUSBAND AND WIFE. Section 1. Rights and Disabilities of Husband and "Wife, We have alluded in Chapter Y., pp. 79-81, to the powers and disabilities of married women, in the matter of agree- ments or contracts ; and the statutes affecting the powers and disabilities of married women, in the different States, wUl be found in the Appendix. We shall, therefore, in this Chapter, only state those rights and disabilities of the husband and wife, and of the survivor of them, which exist at common law, and are not mentioned in either of the other places. The rule was formerly held, that the husband had the same power over the person of the wife as over a child, servant, or apprentice. And, in an early edition of Phillips' Evidence, a highly respectable authority in the English common law is quoted, as saying, that according to the law of his day, a husband " might lawfully chastise his wife with a reasonable weapon, as a broomstick" adding, "but if he use an unreason- able weapon, as an iron bar, and death should ensue, it would be murder." Whatever may have been the former English law, no doc- trine allowing even " reasonable punishment," has been recog- nized in this country as legal. In this particular, each party has equal rights in this country ; and neither may, under any provocation, lawfully strike the other. Against such violence and indignity, a wife may be protected in all cases, by having her husband put under bonds to keep the peace towards her , and, in many of the States, by divorce. In most of the States, the limit of his legal power over her person is this : if she indicates a disposition to waste or de- OP HUSBAND AND WIFE. 819 stroy his property, he may use the means necessary to pre- vent her. If she desert him without cause, he may lawfully, (if he can without breach of the peace,) exercise such neces- sary compulsion upon her, as will compel her to return. This power rests upon the right which he has to her society, and which he may thus enforce against herself, or any other per- son who detains her. He is also entitled to the privilege of habeas corpus, to aid him in the accomplishment of this pur- pose, upon proper cause shown. By the common law, the husband, by marriage, acquires an absolute title to all the personal property which the wife has in possession at the time of the marriage, such as money, goods, and personal chattels of every kind. These, at common law, can never revest in the wife, except by decree of divorce em- bracing such a return of her property, or by a will of her hus- band. In case of his death without a will, this property vests in his executors, to her exclusion. The husband, by mar- riage, also becomes entitled to dispose of his wife's chattels real, at pleasure. " But, with reference to these and also her uncollected debts and other " things in action" in contra-dis- tinction to '■'thinffs in possession," if he should die before re- ducing them to his actual possession, they belong to her, and not to his representatives. If the husband survive, things in action, uncollected, go to the representatives of the wife : but chattels real become thereby his absolutely. The husband also, by marriage, acquires, at common law, the right to receive the rents and profits of all the real estate of the wife during coverture. His interest therein ceases at her death, unless he has by her a child born alive, which would have inherited the estate if it had been alive at the death of its mother ; in which case the husband is entitled to the use of such property during his life. This estate is called tenancy hy the curtesy. Upon the death of a husband without valid will, the wife is. entitled to one-third part of the real estate of inheritance, of which the husband was seized to his own use during the coverture. This is her dower, of which the husband cannot deprive her by will, nor by any conveyance during coverture, 820 OF HUSBAND AND WIFE. unless her assent be manifested by joining with him therein. An actual possession of the estate, by the husband during his life, is not necessary, legal seizin being sufficient. She is, also, upon the death of her husband without will, under the English statute of Distributions, wliich has been quite uni- versally adopted in these States, entitled to one-third of his personal property remaining after the payment of his debts, if he left issue ; and if he left no issue, she is entitled to one- half. This share of personal estate, however, is not, like dower, inalienable by the husband : but he may, if he chooses, deprive her of it by will. She is also entitled to an indefinite estate, in what is called her paraphernalia at common law, consisting of beds and clothing, suitable to her condition in life, and of her watch, ornaments, jewels, laces, &c. The husband becomes liable, at common law, to pay the debts of his wife, provided they be collected during the cover- ture ; and he is also liable for her wrongs committed after the mai'riage. If they were committed by his direction or in his presence, he alone is liable ; it being presumed that they were committed under his coercion. He is also bound by such contracts as are made by his im- plied authority ; which include such as, according to the usage of the place, a wife is accustomed to make, and such as she has been accustomed to make and he has been accustomed to acknowledge and perform. He is also bound to pay for any article purchased by her which came to his use, and to furnish her with necessaries according to her rank in life. He may prohibit a particular person from trusting her, but, if he fail properly to provide for her himself, and forbid all persons to supply her with neces- saries, lie will be bound by her contracts for necessaries suit- able to her degree and condition in life. He must maintain her with necessaries, according to his rank in life, so long as she cohabits with him ; and when she does not, if she have sufficient reason for refusing so to do. If he turns her away, or treats her with such cruelty or in- dignity that she is obliged to leave him, he is not only bound at law for her necessaries, but a court of equity will, on her OP HUSBAND AND WIFE. 821 application or that of her next friend, decree, on her behalf, a separate maintainance, suitable to her degree and quality. Section 2. Rights of the Survivor of them. We have already spoken of the rights of the survivor to an estate in dower or in courtesy, and of the right of the wife, to an interest in the personal estate of her husband and in her paraphernalia, in the foregoing section. If the husband survive the wife, he is entitled to adminis- ter her personal estate, and, in that capacity, may collect her choses in action and pay her debts, and, if there is a surplus, it, at common law, belongs to him. He is also the absolute owner of her chattels real, as we have seen. The Judge of Probate has authority, when a wife survives her husband, to appoint her his administratrix ; and, indeed, if she be a suit- able person, she is entitled to be so appointed ; he may also, by a long established custom, which is now in many States sanctioned by statute provisions, make her a reasonable allow- ance from her personal estate, for her support and maintain- ance while the estate is in settlement, Avhich allowance is, as to amount, usually limited, practically, only by the discretion of the Judge. rOEMS. 1. Agreement to live Separate, putting the Estate of THE Wife in the hands of a Trustee. This agreement, made this 10th day of June, A. D. 1869, between A. B., and M. his wife of the one part, and C. D. of the other part, Witnesseth : Whereas differences have arisen between the said A. B. and the said M., on account of which the said M. has, with con- sent of said A. B., lived separate from him and at her own expense : and whereas said A. B. is desirous that said M. shall retain and enjoy all the estate and property of every nature, 822 OP HUSBAND AND WIPE. which she now has, or which any person has in trust for her, or which she may hereafter become possessed of, or entitled to in any manner, to her sole and separate use, and that of her heirs and assigns : — Now, therefore, in consideration of one dollar paid to said A. B. by said C. D., they, the said A. B. and M. his wife, have granted, bargained, sold, assigned, and transferred, to the said CD., the estate and property hereinafter described: [here describe the estate and property to be conveyed.] To liave and to hold said estate and property, to said C. D., his heirs and assigns forever ; in trust, nevertheless, and to the sole and separate use of the said M., and at her sole disposal. And the said A. B. doth hereby, for himself, his heirs and assigns, covenant and agree, to and with said C. D., his suc- cessors and assigns, that he will at any time hereafter, at the written request of said M. or said C. D., transfer and convey to said CD. any and all estate to which she, the said M., may in any manner hereafter become entitled, by uniting with her in any deeds or transfers proper to be entered into for that purpose. And the said A. B. hereby covenants and agrees to and with said C D., his successors and assigns, that he will war- rant and defend said estate and property, and the estate and property to which said M. may hereafter become in any man- ner entitled, to him, the said 0. D. and his successors and assigns, against the claims and demands of all persons claim- ing under, through or on account of him, the said A. B. And said A. B. further covenants and agrees, that said M., by her last will and testament, may devise, bequeath and dispose of, all or any such estate and property as she may have, or be in any manner entitled to, the consent thereto of said A. B. being hereby declared. And said CD. hereby signifies his acceptance of said trans- fer and conveyance of the real and personal estate aforesaid, and agrees to hold and manage the same and such other estate and property as may come to him by conveyance or other- OF HUSBAND AND WIFE. 893 wise, as herein is provided, according to the provisions of this agreement. In witness whereof, the parties have hereto set their hands and seals the day and year above first written. A. B. [l. S.J M. B. [l. s.] C. D. [L. s.] [Should be witnessed and acknowledged, as in Chapter 32, Section lO.J 2. Same, with Covenants to Pay a Stipulated Sum for Support. This agreement, made this 10th day of June, A. D. 1869, between A. B. and M. his wife of the one part, and C. I>. of the other part, witnesseth : Whereas differences have arisen between said A. B. and said M., on account of which they have agreed to live separate and apart from each other during their natural life : Now, therefore, said party of the first part, in considera- tion of the premises and in pursuance thereof, doth covenant and agree with the said C. D. and with M. his said wife, that she may at all times hereafter live separate and apart from him, and that he will allow her at all times to reside where, and with whom she pleases, and to carry on such trade or business as she may think fit ; and that he will not at any time, or in any manner, sue, molest, or trouble her, for living separate and apart fi'om him, or any other person for receiv- ing or harboring her ; and that he will not, without her con- sent, visit her, or enter any house or place where she may be residing, or in any manner correspond or attempt to cor- respond with her ; that he will not at any time claim or de- mand any of her property or rights of property, and that she may enjoy and dispose of the same, as if she were unmar- ried ; and further, that he, the said A. B.,will pay or cause to be paid to her his said wife, towards her support and main- tenance, the sum of one thousand dollars annually, clear of 824 OF HUSBAND AND WIFE. all charges and deductions whatever, for and during her natural life, payable quarterly, on the first days of January, April, July, and October, in each and every year ; which said C. D. hereby agrees to taiie in full satisfaction for her support and maintenance and all alimony whatsoever. And said C. D., in consideration of one dollar to him paid, hereby covenants and agTces to and with said A. B., to save him harmless from all debts of his said wife to be hereafter contracted ; and if said A. B. shall be compelled to pay any such debts, said C. D. hereby agrees that he may retain the same with interest, from the quarterly allowances that shall thereafter become due. In witness whereof, the parties have hereto set their hands and seals, the day and year above first written. A. B. [L. s.] Executed in presence of M. B. [l. s.] C. D. [L. s.] 3. Same, with Surrender to Wipe op Estate which WAS HERS. This agreement, made this 10th day of June, A. D. 1869, between A. B. and M. his wife of the one part, and C. D. of the other part, witnesseth, as follows : Whereas, the said A. B., by virtue of his marriage with the said M. and of deeds and settlements made by her, and by others for and on her ^ehalf, is seized of, and entitled to, estate and property of considerable value : and whereas the said A. B. and M. have, by mutual consent, agreed to live separate and apart : and to the intent that the said M. may support herself in a manner suitable to her condition ; he, the said, A. B., hath agreed to convey, release, and surrender, all the estate of every nature, real and personal, which he is now, or at any time hereafter shall be, seized or possessed of, or in any manner entitled to, in right of the said M., or by or through her : to be held and enjoyed by her hereafter to her sole and separate use, and to be at all times and abso- OF HUSBAND AND WIPE. 825 lutely at lier disposal, as if she ^verc sole and unmarried ; without being subject to his debts, encumbrances or control, or to any claim or demand, by, from, or under the said A. B. on any account whatsoever. Now, for the more effectual execution of said agreement, the said A. B. hereby covenants and agrees with the said C. D. as follows : that he, the said A. B. and his heirs and as- signs, will, from time to time and at all times hereafter, upon the request and at the cost of the said C. D. and his heirs, grant, convey and assure to said C. D., his heirs and assigns, all the right, title, and interest which he, the said A. B., has in possession, reversion or expectancy, in and to all the said lands, estate, property, &c., and all rent and arrears of rent, and other profits and advantages, which are now due and owing or accrued to the said A. B., and that he will permit the said C. D., and his heirs and assigns, to take and receive all such rents, issues, and profits, now accrued or which may hereafter accrue ; and also that he, the said A. B. and his as- signs shall and will bargain, sell, assign, transfer, and deliver, to said C. D. and his heirs and assigns, all plate, household goods, furniture, and all other personal estate of every na- ture, now remaining in the possession of the said A. B., or any other person in trust for him, or for his benefit, which he became seized or possessed of, or entitled to, by liis inter- marriage with the said M. or otherwise, by, from, or under her, or which were at any time her property or estate ; and all the estate, right, claim, interest or demand, of him the said A. B. in and to the same or any part thereof, free and clear from all debts, incumbrances, and obligations, of the said A. B. ; and that M. and her heirs may, at all times here- after, have, hold, and enjoy, to and for their own sole and separate use, all said lands, &c., and all rents, &c., now due, or which shall hereafter accrue from any and all persons, and also all the estate of every nature aforesaid ; and further, that said M. shall hereafter have power and be entitled, not- withstanding her coverture, and she is hereby and hereto authorized, from time to time and at all times, freely and absolutely, to dispose of any and all the estate and premises 826 OF HUSBAND AND WIFE. aforesaid, at her will and pleasure, either in her lifetime, or by her last will and testament, without the control or hin- drance of said A. B., or of any person claiming from or under him, as fully and amply as if she were sole and unmarried ; and that he will suffer the probate of such will by the execu- tor thereof. In consideration whereof, the said C. D., on behalf of said M., covenants and agrees with said A. B., his heirs and as- signs, that she the said M. shall and will, whenever thereto requested by said A. B., his heirs or assigns, release and sur- render all right and title which she has or may have, to any jointure, dower, or homestead, or third part, or other in- terest of, in and to the estate, real and personal, of said A. B., or any part thereof; and also, that she, the said M., shall and will indemnify and save harmless, the said A. B., his heirs and assigns, from all debts, charges, and encumbrances, contracted or to be contracted by her, at any time or on any account. And lastly, the parties hereto mutually promise and agree, each with the other and others, to execute all such other transfers, deeds, and conveyances, for the fuller confirmation or execution of the articles aforesaid, according to the true purpose and intent thereof, as by their counsel shall be ad- vised and required, whenever the same shall be tendered and required to be executed. In witness whereof, &c. [To be executed, acknowledged, and recorded like an ordi- nary deed.] CHAPTER XXXIV. Of Parent and Child. Section 1. The Duties of Parents. The ordinaiy duties of parents toward their children are said to be, maintainance, protection, and education. These are certainly duties of high moral obligations ; and whether they may be enforced against parents at common law or not, they may be properly treated as duties of parents. At common law, the parent at his death may devise by will, away from his children, his entire estate ; in which respect our law is less careful in enforcing the obligations of maintainance than the Roman and Athenian laws were, under which a father could not disinherit a child from mere caprice, passion, or preju- dice, but only for substantial reasons, to be approved of in a court of justice. Chancellor Kent says, " The obligation of the parent to maintain the child continues till the child is in a condition to provide for his own maintainance, and it extends no fur- ther than to a necessary support. The obligation of paren- tal duty is so well secured by the strength of natural affec- tion, that it seldom requires to be enforced by human laws. According to the language of Lord Coke, it is ' nature's pro- fession to assist, maintain, and control the child.' A fath- er's house is always open to his children. The best feeliugs of our nature establish and consecrate this asylum. " Under the thousand pains and perils of life, the home of the parents is, to the children, a sure refuge from evil, and a consolation in distress. In the intenseness, the lively touches and unsubdued nature of parental affection, we discern the 328 OP PARENT AND CHILD. -wisdom and goodness of tha Great Author of our being and the Father of mercies." The statute law of most countries and States makes pro- visions supplementary to those laws arising out of our nature, and which are sometimes too feebly sustained with- out such practical support ; and the obligation imposed is usually reciprocal, and extends to parents and children, and also to grandparents and grandchildren. The natural obligation continues only during the minority and weakness of the child ; but, for the protection of the public, the statute obligation remains during life. A father may be sued for necessaries furnished and education be- stowed upon his minor child, under proper and suitable circumstances. Where, however, the child has separate estate, the father is sometimes allowed to appropriate a proper por- tion of it, for the support and education of the chil^, in a manner suited to such income and perhaps beyond the unaided ability of the father. Such an allowance should, however, be asked for in ad- vance ; for the courts will not, ordinarily, make an allowance from the estate of an infant for past maintainance. The English statute, of 43 of Elizabeth, required reciprocal main- tainance from parents and children and some other blood relations, and it has been generally adopted and acted upon as the law of this country, in the absence of other statute regulations. We have said that a father is liable, under proper circumstances, for necessaries and education furnished his son : he is, however, not so liable, unless an actual author- ity be proved, or the circumstances be such a^ to imply one ; it being manifestly unfit that the father should be compelled to adopt his infant son as his agent. And it must always be a question for a jury, whether, under the circumstances of the case, the father's authority was to be inferred. A parent is not liable for the wilful acts of his minor child, as for setting the parent's dog upon the animals of a third person. The parent is entitled to the services of his child- ren during their minority ; and, generally, the law will not imply a contract for wages between those standing in the re- OF PARENT AND CHILD. 829 lation of parent and child, even after the child has attained majority, but it must he -shown, in such cases, that there was intended a contract for wages and services. Being entitled to the services of his minor child, it follows, the father may recover their value, if rendered by the minor to other persons, and it seems, that he may so recover where the services were performed in an unlawful business, if the father did not know the character of the service. Emery vs. Kempton, 2 Gray, 257. A father may, of course, by agreement with his minor child, relinquish to him the right which he would otherwise have to his services, and thereby authorize those who employ him to pay him his own earnings. An emancipation may be in- ferred, where a father leaves his child to manage and con- tract for himself for several years. The father is entitled to the writ of habeas corpus to enable him to obtain the custody of his children, when they are improperly detained from him ; but the right of custody of a minor child is not abso- lute, like that of property. The law .looks mainly to the good of the child, and if a better custody exists than that of the father, the law will not disturb it. The courts will con- sult also the inclination of the child, if he be of sufficiently mature age and intelligence to judge for himself, and they will even control the right of the father to the possession and education of his child, in a case in which the best interest of the child seem to warrant it. The right of the father to the custody of the cliildren is ordinarily held superior to that of the mother, unless where the child is very young, or where it appears that, if in the custody of the father, it would be exposed to cruelty or cor- ruption. As to protection, a parent may exercise the same means of offense and defense in the protection of his child, that he would be entitled to exercise in the protection of his own person : but, while he is permitted so to protect liis child, the law does not compel him to do it, nor punish him if he does not do it. 830 OF PAEENT AND CHILD. As to education, the duty rests as a moral obligation firmly and persuasively upon the parents, but whether it can be compulsorily enforced, except where there are express statute provisions relating thereto, may be doubted. Walker, in his treatise on American Law, says, a " parent of most unbound- ed means may, in spite of the law, bring up his children in the most deplorable ignorance. The truth, therefore, is, that these are not matters of legal obligation. The law has left them to the strong impulses of natural affection." But the statutes of several of the States make it obligatory upon parents to cause their children to be instructed in certain prescribed elementary branches ; and statutes sometimes also provide, that no child, under a limited age, shall be employed to labor in any business, unless he shall have attended a com- petent school a number of months during the preceding year. Great pains have been taken, and liberal provision made, in this country, to render ordinary instruction acces- sible to all ; and, in many of the States, the maintenance of the public schools ,is provided for in their constitutions. These provisions for the support of common schools render it easy and inexpensive, in most of the States, for parents to confer upon their children a good and substantial education. Section 2. Obligations of Children. Chancellor Kent says, that " the duties enjoined upon chil- dren to their parents are, obedience and assistance during their own minority, and gratitude and reverence during the rest of their lives." These duties have been, to some extent, in most of the States, regulated' by statute law. It is gen- erally made the duty of children, to support their parents and grand-parents, if they are unable to support themselves ; and this obligation is imposed upon aU children, male and female alike, if they have the ability. of parent and child. 831 Section 3. Of Illegitimate Children. Marriage is the only source of legitimacy ; and parents must sustain to each other the relations of husband and wife, to make the offspring legitimate. Neither is it sufficient that they sustain to each other that relation de facto : they must be lawfully married. Wliere, therefore, marriage has been solemnized between parties, and they have cohabited as hus- band and wife, supposing themselves to be really siich, if it turns out that either of them had, although unknown to them, a former husband or wife living, children born to them during such cohabitation will be illegitimate. Marriage and cohabitation of parents raises a presumption of legitimacy, which can be rebutted only by showing cir- cimistances rendering it impossible that the husband should be the father ; as absence from the country, impotency, and the like. An illegitimate child has no right of inheritance at common law ; and this is so, even where the father ac- knowledges him to be his son, or intermarries with the mother after Ms birth. This rule is reversed, as to the effect of a subsequent intermarriage, by the Civil Code of Louisiana, and by statute in many of the other States. It is also fre- quently provided, by statute regulation, that an illegitimate cliild may be heir to his mother : and this rule of inheritance is sometimes reciprocal between the mother and such son. In most of the States there are statute provisions for the public indemnity, by charging the support of such children on the real father. If such child is adopted by his reputed father, he may thereby become liable upon implied contracts for the necessary maintenance of such child, without com- pulsory order and as if he were legitimate. Such adoption must be voluntary, and with the consent of the mother, for she has a right to the custody and control of an illegitimate child, as against the fatlier, and is its natural guardian. This subject is fully considered by Chancellor Kent, in his 29th Lecture, and by Chief Justice Reeve, in his work on the Domestic Relations. CHAPTER XXXV. OP GUAEDIAN AND WARD. Section 1. — Cruardicms by Nature. The relation of guardian and -ward is not, like that of par- ent and child, founded in nature, but owes its origin to legal provision. It usually takes place on the death of the father, and the guardian is intended to supply his place. It may also exist during the life of the father, where the minor has sepa- rate property which needs care. It, therefore, sometimes happens, that one person is guardian of the person, and an- other of the estate of the minor, though the same person may properly fill both places. A minor, when under this re- lation, is denominated a ward, and the guardian is authorized to act for him, in all matters where the law requires action, and where the ward is incapable of acting for himself. There are two general kinds of guardianships : one by the common law, and the other by statute. And guardianship at common law is again divided into several kinds, as guar- dians by nature, guardians for nurture, and guardians in soc- age ; of which it will not be necessary for us separately to treat. The father, during his life, and on his death the mother, is guardian by nature, their authority extending over the per- son only. It was a doubtful question for some time, whether a guardian by nature was entitled to the possession and con- trol of the estate of the infant, and could discharge an ex- ecutor on account of a legacy due to the child : but it is now generally held that he cannot. If, therefore, a child become vested with personal property, no person is strictly entitled to take it, till a guardian has been duly appointed by proper authority. The law in Connecticut was declared to be differ^ ont, in a case in the 31 Conn. : but the rule has been changed by statute in that State, and now conforms to the common law doctrine, as generally received. The father has the first OF GUARDIAN AND WARD. 833 claim to guardianship of the estate of his child, and, if a suit- able person, is usually appointed, upon giving proper security for the cai-e and preservation thereof. The mother has the claim next in order. Guardianship is a personal trust, not transmissible by suc- cession or assignment. They are generally appointed in this country by courts of probate, in pursuance of special statute regulations. The guardian has the entire control of the personal estate of his ward, so far as its investment, reinvestment, and gen- eral management are concerned, subject, however, to the aii- thority appointing him, during the guardianship, and at its close. He has no further concern with the real estate, than to attend to the leasing thereof and the receipt of the rents and profits. His authority to lease is only during the minor- ity of the ward, and he can never sell real estate without special authorization of the authority appointing him, or of a court of chancery. The condition of the guardian is one of care, obligation, and duty, and can, in no case, be made one of speculation and profit. He can never act for his own benefit in any con- tract, purchase, or sale of the estate of his ward, nor derive personal benefit from the use of the ward's money. If a debt be settled by him upon beneficial terms, or purchased at a discount, the benefit results entirely to the ward. If he is guilty of negligence, and loss results therefrom, he must sus- tain it. He may be called to an account, at common law, by the infant, within a period usually limited by statute, after he comes of age ; and the infant may while under age, by his next friend, call him to account by bill in chancery. If a guardian trades with his ward's money, the ward will be entitled at his majority to elect to take the profits, or the principal sum employed with interest. So, if he negligently omits to invest the ward's money, he will, in all cases, be chargeable with interest, and the court, in a case of gross de- linquency, will compound it. No guardian, as such, is bound to maintain his ward at his own expense ; and any expense incurred by him in support- 53 834 OF GUARDIAN AND WARD. ing the minor, properly and according to his condition, he is entitled to have refunded to him out of the ward's estate. Ordinary personal property coming into the hands of the guardian, which does not bring in income or interest, it is his duty to sell, and so invest it that it shall produce such in- come. This rule, however, does not apply to family pictures, plate, watches, ornaments, and other property of like nature, which is usually kept on account of the memories connected with it, rather than as a subject of profit. Section 2. Guardians Appointed hy Will or Judicial Decree. The father has general power to appoint a guardian to his minor children by his will. This power was given in Eng- land by a statute passed in the reign of Charles II., which has been quite extensively adopted in this country ; and such a guardian may be appointed by a father, who is himself a minor. These testamentary guardians have substantially the same powers, and are subject to the same responsibilities, as those differently appointed. Guardians are also appointed by decree of court, to take care of the interests of a minor depending in any suit before such court. These are called guardians ad litem. Idiots, lunatics, and spendthrifts, and such persons generally as are laboring under mental incapac- ity disqualifying them from the care of their own estates, may have guardians appointed, upon the applications of their friends or of the officers of the towns where they live, under statute provisions in most ot the States ; and in the absence of such provision, courts of probate or chancery would exer- cise jurisdiction over such cases, upon proper application made to them. Such guardianships are, however, generally controlled by local statute regulations, which may be easily referred to, but which differ so much in detail in the different States, and are so liable to be changed from time to timei, that it is not desirable to refer to them here. CHAPTER XXXVI. OF EXECUTORS AND ADMINISTRATORS. Section 1. Of Executors, their Powers, Duties, and Liabilities. Wlaen a person dies, it is necessary that some one be au- thorized to settle his affairs. This may have been provided for by the deceased by will, in which case the party so ap- pointed is designated the executor, and the party making the appointment is called the testator. If no such provision is made before death, the law makes it. The person appointed is then called the administrator, and the person deceased, the intestate. The first duty of an executor is, to have the will proved ; and when so proved, it becomes the charter of his powers and' authority, subject always to tlie regulations of the local law. An executor is usually required to give bond, for the care and preservation of property, the payment of debts, and for the due exercise, in all respects, of the powers and authority re- posed in him by the law, and by the will of the testator. Tlie bond may, in many of the States, be dispensed with by express provision in the will, except so far as is required to secure payment of debts. Such bonds may also be legally dispensed with, where all the persons interested in the estate certify their consent thereto. In some of the States, where the executor is also a residuary legatee (a residuary legatee is one who is entitled to the balance of the estate, after the pay- ment of debts and specific legacies and debases,) he is per- mitted, instead of giving the general bond, which includes, in its condition, the preparing and filing a true inventory of all estate and property, to file a general bond for the payment of debts and legacies, and to omit the filing of an inventory. 836 OP EXECUTORS AND ADMINISTRATOKS. Ordinarily, one of tlie earliest duties is, the preparing and filing of an inventory, which must be enlarged and supple- mented whenever additional assets come to the hands of the executor. Unless specially empowered by the will, the executor has no authority to make sale of real estate, even for the payment of debts, without special direction from the court. It is the duty of the executor, to take immediate measures for the collection of the debts due the deceased, and for the recovery of any money, goods, effects, or estate, in the fraud- ulent possession of other persons. He may, ordinarily, settle and compound debts by arbitration or compromise ; but, for his own safety, should usually first procure the sanction of the probate coiirt. In some of the States, the time in which he is bound to settle the estate is limited by law ; in others, the time is fixed in each case by special decree of the court of probate, having reference to the circumstances of each particular estate and to the time which would probably be required in its proper settlement. Wlien a time is so limited hj a decree of the court, it may usually be enlarged from time to time for cause shown. It is one of the first duties of an executor to give notice of his appointment, by posting and publication, in such man- ner as may be required by the local statutes or by the decree of the court in a particular case. The executor should care- fully preserve evidence of the giving of the notice in the manner required, so that proof thereof may be made, should it be required. Actions against executors are usually limited by special stat- utes : but the time is sometimes fixed under statute regulation, by the decree of the court in each particular case. In either case, all persons having claims must present and prove them, or bring an action thereon, within the period so limited. An exception to the rule is sometimes made in favor of creditors whose actions will not accrue within the limited time. All creditors having such claims should, however, make application to the executor, and to the court of probate, for such action and decrees in relation thereto, as will secure OF EXEOUTOES AND ADMINISTRATORS. 837 final payments of their debts. Legacies are usually paid under authority giveu the executor in the will, without special di- rection of the court. In the absence of such special pro- vision, the time usually fixed for the payment of legacies, by general law, is one year. Interest is usually allowed the legatees after the expiration of the year, and computation thereof will sometimes be made with annual rests. If the estate is insolvent, it is the duty of the executor to represent that fact to the probate court, and his neglect to do so may make him personally liable to creditors. He is not held to answer the suit of any creditor till a year shall have elapsed in some of the States ; and, in all of them, ample time is allowed him to satisfy himself of the condition of the estate. Upon representation that an estate is insolvent, com- missioners are appointed by the court, who examine, and allow or reject, all claims which are presented : from their decision, either party has a right of appeal usually secured to him by statute ; and, at the term of the court at which the appeal is to be entered, the appellant must enter his papers, which should be a brief statement in writing, setting forth distinctly all the material facts which would be required in a declaration in an original writ for the same cause of action ; and similar proceedings are thereupon had to those which be- long to the pleadings, trial, and determination, of an action at law prosecuted in the usual manner, except that no execu- tion is awarded against the executor, if a debt be found due to the claimant. Final judgment is conclusive ; and, if the conclusion of the commissioners is reversed, the list of debts allowed by them is altered so as to conform thereto. When a creditor, for any cause, omits to prove his claim, and even where he had no actual notice of the proceedings, he must lose his debt, unless additional assets subsequently come to the hands of the executors, in which case the probate court has authority to open the commission and permit him to come in and prove his debt, and all the assets are then applied to such newly proved claim, till its amount of dividend shall equal that previously paid on debts already proved, and the balance is equally divided. 838 OF EXECUTORS AND ADMINISTRATORS. When a man dies leaving estate, to be administered in a State otlier than that in whicli he had his home, such estate will not, ordinarily, be transmitted to the home administrator, till citizens of the State in which the estate is found, whether creditors, a widow, or under whatever form their claims may arise, are fairly provided for. This is especially true of cases in whicli the estate is insolvent: but, in every case, a debtor, or person having possession of the personal estate of the de- ceased, may refuse to pay over or deliver up, except to an administrator duly appointed in the place where he resides. AVhen there is a will and executor, the executor is usually allowed by statute to file a copy of the will in the State in which the additional estate is found, and authority is granted him thereupon to proceed in its collection. In either case, after the claims of home creditors and citizens are fairly pro- vided for, the balance is transmitted to the administrator where the deceased had his home, and died. An executor has usually no official authority to collect the rents of real estate, miless authorized by the will of the tes- tator, but as a general rule, such estate vests in the heirs or devisees, immediately upon the death of the owner, and all rents which accrue subsequently to his death belong to them. If an executor is himself indebted to the estate, the debt due from him should be regarded as assets, to be accounted for. He should charge himself with its amount as if he had actually received it from a third person, and is bound to an- swer upon oath all facts in relation to it, even as to facts which take the case out of the bar of the statute of limita- tions. See Sigourney vs. Wetherell, 6 Met., 633 ; Leland vs. Felton, 1 Allen, 531. An executor of a solvent estate is allowed to credit himself in hrs account with all sums paid by him in satisfaction of debts due from the deceased at the time of his death. But the estate is not liable for money paid in pursuance of a promise, the consideration of which arises after the death of a testator or intestate. Upon such a promise, the executor is personally liable, and whether he is to be repaid from the estate, is a question to be determined by the probate court OP EXECUTORS AND ADMINISTRATORS. 839 upon the settlement of his account. It would be necessary for him to show, in support of his application for an allowance in such a case, that the payment was beneficial to the estate, or was made with the assent of the parties interested. Cobb vs. Mussey, 13 Gray, 57 ; Luscomb vs. Ballard, 5 Gray, 403. As against creditors, an executor is allowed reasonable funeral charges, expenses of last sickness, and such other claims as are preferred by the local statutes. The expenses of administration, found to have been necessary by the judge of probate, are always allowed him ; and he is entitled to be allowed for the amount of any debts inventoried as due to the deceased, if it appears to the court that they remain un- collected without his fault. He will also be allowed, if he has sold property for less than the appi-aised value, if it ap- pear that the sale was expedient and for the interest of all concerned. If he is himself a creditor, he should either procure the assent of all parties in interest to payment of his debt, or file a statement thereof in the probate court and take the direction of the judge thereupon. Section 2. Of Executors in their Own Wrong. A stranger, that is, one who has no right to act as exec- utor, but who takes upon himself to act therein without au- thority, is called an executor of his own wrong, and is liable to all the trouble of an executorship, without any of its profits or advantages. Such a person cannot bring an action him- self in right of the deceased, but actions may be brought against him. He is chargeable with the debts of the de- : ceased, so far as assets come to his hands ; and, as against general creditors, will be allowed payments made to any other creditor in a superior degree, (that is, having priority of claim,) but will not usually be allowed the payment of his own debt. He is liable to account to an authorized executor, though not to the next of kin. A sale of goods by him will be voidable, in favor of an administrator duly appointed, even though he himself becomes such administrator. 840 op executors and administbatoks. Section 3. Of Administrators, and their Powers and Duties. We have seen, that when a person dies, without a will, he is said to die intestate, and the law prescribes the man- ner in which his estate shall be settled and his property disposed of. Where the testator left a will and omitted to name an executor thereof ; or the executor named is dead, or neglects or refuses to accept the trust, or is a minor, or for other cause incompetent, administration, " with the will an- nexed," is granted. Such an administrator is governed, as an executor would have been, by the directions of the will, and not by the general law which regulates the settlement of intestate estates. When a sole executor, or an administrator with the will an- nexed, dies after entering upon the duties of his trust and before it is discharged, or is removed, or resigns, or becomes incompetent, an administrator is usually appointed to com- plete the settlement of the estate according to the directions of the will. Special administration is sometimes granted, for the purpose of preserving and protecting the estate for the executor or administrator who may ' be afterwards ap- pointed, where, by reason of controversy over proof of a will or for other cause, there is delay in the granting of let- ters testamentary or of administration. We have spoken of a case in Section 1, in which admin- istration will be granted in a State or country other than that in which the deceased had his home at the time of his death. Such administration is auxiliary (technically termed ancillary,) to the principal executorship or administration granted where the deceased dwelt. The appointment of such an administrator, however,^ will not necessarily await admin- istration in the place of the domicil of the deceased, but will be granted upon proper case made, though no administrator has been appointed in the foreign State ; and even if the de- ceased left a will, which has never been offered for probate in the place where he lived. OF EXECUTORS AND ADMINISTRATORS. 841 The persons who are entitled to a grant of administration are usually pointed out in the local statutes. They are gen- erally the next of kin ; and if they renounce administration, or are incompetent, or neglect for a stipulated period to ap-. ply for administration, a principal creditor, or any other competent person, may he appointed. Application for ad- ministration must be made in writing, to the probate court having jurisdiction. The petition shoiild set forth the fact of the death of the person, the time of his death, the county in which he was last resident, and the grounds on which the petitioner asks to be appointed. It should also state the name and residence of the widow, if any, and the names, residences, and degree of kindred, of his next of kin. If they have neglected or declined to administer, that fact should be stated. If the petitioner is a stranger to the es- tate, the reason upon which he bases his application should be stated. If the petitioner is widow, or next of kin to the deceased, or if such parties appear and request the appoint- ment of a stranger, who is evidently a fit and proper person, the appointment may properly be made in the discretion of the judge, without notice to creditors or other persons inter- ested. But, if applipation be made by a creditor, or a stran- ger to the estate, without the special assent to his appoint- ment of persons having the prior right, notice should Ije given to persons interested, that their objection may be heard. Eenunciation of administration, or assent to the appoint- ment of another, should properly be in writing, in all cases. The appointment of an administrator is made effective and complete by the approval of the bond required of him by statute. The general duties of an administrator are similar to those of an executor,, except that the latter is guided in his action by the will which he executes, while the former is governed entirely by the local statutes which regulate the settlement of intestate estates. Of the rules of distribution of intestate estates, we have spoken in Chapter XXVI. CHAPTER XXXVII. OF APPRENTICES. Section 1. Creneral Principles, Apprentices are a class of employes, usually minors, who are bound to service for a term of years, to learn some art or trade. The contract of apprenticeship is, therefore, one, the substantive elements of which are, an agreement that the apprentice shall serve for a term of years, and re- ceive, as a principal return therefor, instruction in his mas- ter's business. It is strictly a personal contract, not assign- able or terminable, without the assent of all the parties to it. The binding is usually by the father, if there be one living, and it has been held that he may, at common law, bind his infant son to service as an apprentice, independently of stat- ute provisions. In many of the States, however, there are statute regulations prescribing the manner in which appren- tices shall be bound, the substantial provisions of which are as follows : the indenture of service is usually to be exe- cuted by the father, or in case of his death or incapacity, by the mother ; but if there be neither father nor mother, then by guardians, or by selectmen, trustees, or other public offi- cer's. The statutes usually require that the minor's assent shall l?e expressed in the indenture. An indenture, at common law, is usually executed by the father, with the assent of the minor expressed thereon. Sometimes, however, an agreement is made directly with the minor, and a guaranty taken from the father or other friend, that he shall perform it. While the agreement of the minor OP APPRENTICES. 843 is Toidable, the guaranty rests upon sufficient consideration ; and, if signed by a responsible party, may be enforced. It is competent for the legislature to authorize a binding of the minor by his own agreement of indenture, which, if ex- ecuted with the assent of the father or mother, or, in case of their death or incapacity, by some public officer, shall he valid and obligatory. Some of the States have such provis- ions. An apprentice may be discharged by the courts, under the regulations existing in most of the States, from service, or the master from his contract, for good cause shown. The death of the master discharges the apprenticeship, in most cases ; for the trust is a personal one, and the apprentice cannot be passed over by assignment, either by the master in his lifetime or by his executors after his death, unless in pursuance of express statute provisions. A master, taking an apprentice in any particular trade or art, has no authority to employ him in ordinary menial service, unconnected with the trade. Apprentices are not entitled to wages, unless expressly stipulated for : but the master is, by his relation to the ap- prentice, bound to pay for his medical attendance ; and, in the absence of any stipulation for wages, he is ordinarily bound to furnish him with suitable food and clothing, and other necessaries. The master is entitled to the earnings of the apprentice, under all circumstances, and it will be no defence that the money was not earned in the master's line of business, that the employment was without the consent of the master, that the employer had no knowledge that he was an apprentice, or even that he has paid the apprentice his wages. If there be a valid indenture, an action will lie for the master to re- cover the whole ; the ground of recovery being that the mas- ter, having contracted for his time, is entitled to its avails. The power of the master over the person of the apprentice is similar to that of a parent or guardian. The statutes of the diffijrent States frequently provide also for complaint to a magistrate by the master or apprentice, upon departure from 844 OP APPEENTICES, duty by either, and prescribe penalties, and, upon gross mis- conduct by the master, discharge the apprentice. We append forms, not only of indentures, but of proceed- ings under the more common statute regulations. FOKMS. 1. Indenture op Apprenticeship, to be Signed by the Father. Tliis indenture of apprenticeship between father of , on the one part, and of the other part, witnes- seth : That the said , aged years, on the day of , A. D. 18 , is hereby bound as an apprentice under the said , from the date hereof until the day of , A. D. 18 , to learn the trade and art of a ; and is faithfully to serve the said , and correctly to conduct himself during the term of his apprenticeship. And the said , hereby covenants, that he will teach the said the said trade and art, and will furnish him, during said appi'enticeship, with board, lodging, washing, clothing, medicine, and other necessaries suitable for an ap- prentice in sickness and in health ; and will send him to a suitable public school at least three months diiring each of the first two years of the said term ; and at the expiration of said apprenticeship will furnish him with two new suits of common wearing apparel, and one hundred dollars in money. In testimony whereof, the parties hereto have set their hands and seals, this day of , A. D. 18 . [L. S.j [L. S.] Executed in presence of Consent of the Minor. I hereby consent to the foregoing indenture, and agree to conform to the terms thereof, in all things on my part to be performed. Dated, the day of , in the year 18 . of apprentices. 845 2. Same, when the Father intends to pay an annual PREMIUM to become RESPONSIBLE FOR DAMAGES. This agreement, made the day of , A. D. 18 , be- tween A. B. of , and CD. of » , Witnesseth : That the sa.id A. B. doth hereby put and bind his son E. F. to learn the art, trade, and mystery of a silversmith, and as an apprentice to serve from this date for the term of five years next ensuing, diligently, faithfully, and honestly, in all matters and business relating to said art, trade, and mystery, that the said C. D. may direct. And I the said A. B. hereby covenants and agrees with the said C. D., that the said B. F. shall in all things faithfully serve the said CD. during the said term, according to the conditions of an indenture this day executed between the said CD. and E. F., (a) with my written consent endorsed thereupon. And said A. B. hereby covenants and agrees with said C. D., to pay to him the sum of dollars, on the day of , in each and every year, during tlie term aforesaid ; and to pay to said CD. all damages which he may sustain by reason of any violation of the stipulations of said indenture upon the part of said E. F. to be performed. Witness my hand and seal this day of , A. D. 18 . A. B. [l. S.J Note. This agreement may be the same as No 3. 3. Same, to be signed by the Minor, with the Agree- ment OF the Father Endorsed thereon. This agreement witnesseth : That A. of , now fifteen years old, with the consent of B., his father, endorsed here- upon, hereby voluntarily binds himself as an apprentice to C of ; with him to learn the art, trade, and mystery of a machinist, and as such apprentice to serve from the date hereof, till he shall have attained the age of twenty-one years, which will be on the day of , A. D. 18 , during which time he agrees to serve said B. faithfully, hon- 846 OF APPRENTICES, estly, and industriously ; his lawful secrets .to keep, and his proper uommands to obey ; at all times to protect and pre- serve the property of the said master, and not volimtarily to allow it to be injured or wasted. He shall not trade or deal either with his own goods o» the goods of others, during the said term, nor be absent from the service of the said B. without leave, but in all things conduct himself as a faithful apprentice ought to do. The said B. agrees to teach the said apprentice the art, trade, or mystery of a machinist, to provide him during said term, suitable food, clothing, medicine and other necessaries, and at the end of said term to pay to him the sum of one hundred dollars, and furnish him with two new suits of ordi- nary clothing. [Add any other stipulations of the master, as : said B. further agrees to pay said A. the following sums of money to wit : for the first year of service dollars, for the second year dollars, and for every subsequent year, un- til the expiration of said term, dollars, which payments are to be made on the first day of AprU in each year.] Witness our hands and seals, the day of • , A. D. 18 . A. [L.S.J B. [L. s.] Executed in presence of Agreement of the Father to he Endorsed thereon. In consideration of the covenants contained in the within indenture, to be performed by B. to and with my son, A., I hereby bind myself for the faithful performance and observ- ance by the said A. of all things by him to be performed, as set forth in said indenture ; and I hereby covenant with said B. that said A. shall in all things faithfully perform and ob- serve the same. Witness my hand and seal, this day of , A. D. 18 . C. D. [l. s.] 4. Consent op Minor. I hereby assent to the stipulations of the within written OP APPEENTICES. 847 indenture, and agree with the said , that I will in all things, on my part to be performed, faithfully conform thereto. Witness my hand this day of , A. D., 18 5. Consent of Father or Mother. I do hereby consent to and approve of the binding of my son J. A., as in the above indenture is set forth. Dated the day of , A. D. 18 . E. F. Note. We have stated in the foregoing section, that a binding by an agree- ment signed by the minor, with the mere assent of the father and mother as above will not be valid, unless expressly authorized and regulated by the local statutes. 6. Consent op Guardian. I, M. A., the duly appointed guardian of E. S. in the within indenture named, hereby certify, that the father and mother of the said E. S. are both dead, [or that the father is dead and the mother refuses to give her consent, or whatever the fact may be,J and that I do hereby consent, as his guardian, that he, the said E. S., may bind himself as is set forth in said indenture. Dated the day of , A. D. 18 . M. A., Guardian of B. S. 7. Approval op Overseers op the Poor, or other Of- ficers. The undersigned, overseers of the poor of the town of [or two Justices of the Peace of the town of , or, the undersigned Judge of S. J. Court of ,J where the within named A. B. resides, do certify that he has no parent living, [or, if such is the fact, no parent of legal capacity to answer to the above indenture,] and that he has no guardian, and 848 OF APPRENTICES. that we hereby, in said official capacity, consent that said A. B. may bind himself in and by said indenture. C. D. [L. s.] E. F. [l. s.] [Insert the official Capacity.] 8. Complaint to a Magistrate by a Master. To A. B., a Justice of the Peace, &c. I, C. D. of , in said , machinist, hereby make complaint, that E. F., an apprentice lawfully indentured to me, and whose term of service is still unexpired, with whom I have not received nor am I entitled to receive any sum of money as compensation for his instruction, \pr if he has re- ceived money, set forth the sum and his own discharge of duty,] refuses to serve me, and conducts himself in a disor- derly and improper manner, in this, to wit : [set forth the wrong doing,] and utterly refuses to perform the conditions of said indenture, as required by law. Dated the day of , A. D. 18 . C. D. State of County of C. D. the person named in the foregoing complaint, being duly sworn, deposes and says, that the facts and circumstan- ces stated and set forth in the said complaint are true. Before me this day of , A. D. 18 . A. B. Justice of the Peace. ss. 9. Warrant by a Magistrate. State of County of To any constable of said town greeting : Complaint has been made to me upon oath by C. D. of in said county, machinist, that E. P., an apprentice duly indentured to him and whose term of service is still unexpired, refuses to serve OP APPRENTICES. 849 the said CD., -without justifiable cause, and conducts him- self in an improper and disorderly manner and contrary to. law : now tlierefore, you are hereby commanded forthwith to apprehend the said E. P. and bring him before me, at my office in said , to answer to the complaint of said C. D., and to be dealt with in reference thereto according to law. Given imder my hand, this day of , A. D. 18 . A. B. [l. S.J Justice of the Peace. 10. Commitment of an Apprentice. State of County of To any constable of said County Greeting : Complaint on oath was made to me, a Justice of the Peace in and for said County, by C. D. of , machinist, that E. F., an apprentice duly indentured to him the said C. D. and whose term of service was still unexpired, and with whom the said C. D. had not received, nor was entitled to receive, any sum of money as compensation for his instruc- tion, refused to serve the said C. D., as by law and the terms of his indenture he was required, and was conducting himself in a disorderly and improper manner : and whereas, after due proof before me of the facts as above set foi'th, the said B. F. still persists in such refusal to serve the said CD., and gives me no satisfactory assurance that he will in the future conduct himself in a quiet and peaceable manner as such apprentice : now therefore, yoTi are hereby comman- ded in the name of the people of tlie State of , [or in the name of the Commonwealth of,] to take and convey the said E. F. to the common jail of said county, and deliver him to the keeper thereof, who is commanded to receive the said E. P., into the said common jail, there to remain till he shall consent to serve said 0. D. according to law, or is otherwise duly discharged. Given, &c., Cas in the foregoing warrant.) 54 8/SO OF APPRENTICES. 11. Complaint by an Apprentice, and StrMMONS thereon. To P. Q. and C. D. two of the Justices of the Peace in and for the County of , [or Town of , if the ap- pointment or election be by towns.] I, A. B., apprentice to E. P. of the town of , in said county, machinist, hereby complain, that the said B. P., to whom I am bound by indenture of apprenticeship, the term of service in which has not yet expired, and who has not re- ceived, nor is entitled to receive, any sum of money as a compensation for my instruction, has beat, bruised, and woun- ded me, the said A. B., being his apprentice as aforesaid, cruelly and without justifying cause, [or set forth any other wrong doing or omission : as, has misused me by refusing me proper food, clothing, or medical attendance,] to wit : at aforesaid, on the day of , A. D. 18 . A. B. State of ■ ■ ss. 'I County of , j A. B., &c., being duly sworn, (as in No. 8.) Summons on the Foregoing. State of County of ' To any Constable of said County, Greeting : Complaint having been made to us under oath by A. B., apprentice to E. P. of , in said county, machinist, that the said E. P., to whom the said A. B. is bound by indenture as an apprentice, has [here set forth, as in the complaint, the wrong which is charged] cruelly beat, &c. : Now therefore, you are hereby commanded to summon the said E. P. and the said A. B., to appear before us at the office of P. Q. in said town of , on the day of instant, at two o'clock in the afternoon, that we may hear and dispose of the matter of said complaint. Given, &c., (as in No. 9.) op apprentices. 861 12. Discharge op Apprentice. State of , I County of , j Complaint on oath having been made to the undersigned, Justice of the Peace in and for said County, upon oath by A. B., apprentice of E. F. of in said county, machinist, that the said E. F., to whom said A. B. is bound by inden- tures of apprenticeship tlie term of service in which lias not yet expired, had cruelly beat, &c., [as in complaint and sum- mons,] and the said E. F., by virtue of our summons there- upon issued, having been brought before us, and upon due examination of the parties and of the evidence adduced by them, it satisfactorily appearing to us that the said E. F. is guilty of the matters charged against him as aforesaid : now therefore, we do hereby discharge the said A. B. from the service of the said E. F., any thing in his indentures of ap- prenticeship aforesaid to the contrary thereof notwithstan- ding. Given under our hands and seals this day of , A. D. 18 . P. Q. [L. S.J C. D. [l. s.] Justices of the Peace for said CHAPTER XXXVIII. OP WILLS. Section 1. Who may make a Will. All persons, who can convey property by deed, can trans- mit the same by will, to take effect upon their death. Wills of personal property might, at common law, be made by male infants at fourteen years, and by females, at twelve years. A married woman, at common law, was incompetent to make a will. The making of wills by married women and infants is regulated in these States by local statutes, to which refer- ence must be had to ascertain their powers and capacities in this respect. All persons laboring under mental disability are incompe- tent to make a will ; but the presumption is, that all persons of full age are competent for this purpose. The question, who may make a will, most frequently arises and is discussed with reference to the mental capacity of the testator. To establish his competency in this particular, it must appear that he possessed mind and memory sufficient for him to understand the nature and consequences of his testamentary act. Mere ability to answer familiar questions, is not suffi- cient, but he must have understanding and memory. A man, in whom the faculty of memory is extinguished, has no such understanding as is sufficient for this purpose ; but his mem- ory may be very impei'fect, it may be impaired by age or dis- ease. He may not be able at all times to recollect the names of those with whom he has been intimately acquainted, or familiar events. He may, at times, ask idle questions, and repeat those which have been asked and answered ; and yet his understanding be sufficiently sound for many of the or- OP WILLS. 853 dinary transactions of life. He may not liave sufficient memory and vigor of intellect to make and digest all parts of a contract ; and yet be competent in some cases to direct the disposition of his property by will. This may be a sub- ject of which he has often thought, and he may have long had it substantially arranged in his own mind. In making a con- tract, he has to meet the sagacity and the selfishness of those with whom he has to deal ; while, in the making of a will, he is supposed to act freely and without any outside effort to control his real desires, or to prevent their proper expression in the form of a will. Upon a discussion of the requisite capacity to make a will, " the question is not so much, what was the degree of mem- ory possessed by the testator, as this : had he a disposing memory ? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty ? To sum up the whole in its most in- telligible form : were his mind and memory sufficiently sound to enable Mm to undei'stand the business in which he was engaged at the time when he executed the will ?" Stephens vs. Tan Cleve, 4 "Wash. C. C, 262. See also Kenney vs. Kenney, 9 Conn., 105; Stewart V5. Lispenard, 22 Wend., 253 ; Converse vs. Converse, 21 Verm., 168 ; Hathorne vs. King, 8 Mass., 871. It is not necessary that a testator should be possessed of a mind natiirally strong, or even of average strength, to ena- ble him to make a valid will. Mere weakness of understand- ing is not an objection, and the courts will not attempt to gauge the precise size or amount of a person's capacity. And neither extreme old age nor physical debility, will affect the capacity to make a will, provided the testator has the mem- ory and understanding necessary to dispose of his property. The legal presumption, in the absence of evidence to the contrary, is in favor of the capacity of a testator. See, how- ever, the dissenting opinion of Judge Thomas, in Baxter vs. Abbott, 7 Gray, 71. The burden of proving the capacity of the testator is, however, upon him who offers the will for probate, and is not shifted uj^on evidence of his sanity being 854 OP WILLS. given by the subscribing witnesses. Nor after the judge of ' probate has decided that it is entitled to proof, is it shifted upon appeal therefrom and hearing in a higher court. The subscribing witnesses may be enquired of as to the grounds of their opinion, upon cross examination, and other evidence is admissible to contradict or control them. Any person may testify as to the appearance of the testator, and as to facts from which conclusions may be drawn. But only med- ical experts may give their opinion/ upon the facts proved. Evidence of msanity, before or after the time of making the will, is admissible, as tending to bear upon the question of his capacity at the time. If he was under guardianship at the time, as an insane person, that is prima facie evidence of incapacity, but may be explained or controlled by evidence of his actual condition. If the will was written by the tes- tator himself, the character of its contents is the highest evidence of his capacity or incapacity. The mere attestation of a will by a witness is not even prima fade evidence that he believed the testator to be of sound mind. Upon the question of sanity of the testator, evidence is admissible of the insanity of the family of the testator upon either side. Eccentricity is not sufficient, however marked, to prevent a man from making a valid will, and should be distinguished from monomania, with which it is sometimes liable to be confounded. The latter, if it influenced the dis- posal of the property in a will, is sufficient ground for setting it aside. A monomaniac not only holds opinions at variance with the rest of mankind, in which respect he is like one who is simply eccentric, but he thinks that his acts are consistent with reason and with the general conduct of other people : while the eccentric man is iisually aware that what he is doing is contrary to the general rules of society, but he purposely and persistently sets these at defiance. Eccentric hal)its, however, suddenly acquired, axe prima facie evidence of insanity. There are certain diseases which, if proved to exist, either incapacitate an individual from making a valid will, or, at least, render his capacity doubtful. These include lethargic OP WILLS. 855 and comatose affections, as also delirium tremens, typhoid fevers accompanied with delirium, and all others which exer- cise controlling influence over the mental faculties. Comatose affections are those which preternaturally dispose their victims to stupidity and drowsiness, and an unnatural inclination to sleep. The party offering a will for probate may prove that the testator, though insane at some period of his life, had recov- ered his reason, or that the will was made during a lucid interval. Evidence of a lucid interval, however, is to be ex- amined with great caution, in cases where the interval is of brief duration. A mere diminution of the violence of de- lirium, or other affirmative symptoms and accompaniments of mental disease, do not constitute a lucid interval. It must appear with reasonable clearness, that he was conscious of his acts, and able to understand their nature and conse- quences. The fact that the will is a reasonable one, is some evidence that it was made in a lucid interval. So, evidence that the provisions of the will were consistent with the inten- tions of the testator, as declared previous to his insanity, is admissible. TSTiere a testator is apparently rational upon general sub- jects, but is controlled by an insane delusion in regard to particular matters, and especially where such delusion pro- duces an unnatural antipathy toward some of those who might reasonably be supposed to be the natural objects of his bounty, his will will be invalidated whenever its provisions can be shown to be the result of such insane delusion. To render a will valid, it must be the product of the mind and purpose of the testator, uncontrolled by fraud or undue influence. Fraud invalidates all things with which it is con- nected, in favor of those whose interests are adversely affected thereby. The effect is the same upon a will where it is shown that the testator was constrained by fear ; or where undue influence was used, to control his disposition of the estate. The degree of influence, which will set aside a will, must vary with the circumstances of each particular case, and is dependent upon the mental and physical condition of the tes- 856 OF WILLS. tator, his strength or feebleness of mind, the power and influence of the person who seeks to control him, and the character of the influence brought to bear upon him. Proper suggestions, and reasonable persuasion from those who have a right to expect to be interested in his will, will not amount to undue influence. But, to invalidate the will, the influences, whether arising out of ill treatment, threats, violence, or persistent and undue importunity, must be such as practically to impair the free agency of the testator. While the party offering a will for probate must prove the sanity of the testator, the burden of proving undue influence is always upon the party alleging it. When a will is written, or procured to be written, by a person largely benefitted by its provisions, the circumstances under which it was made will be more strictly enquired into. Upon the subject of weakness of mind and undue influ- ence, see Parish Will Case, 25 N. Y., 9 ; Woodbury vs. Obear, 7 Gray, 467. See also. Beck's Medical Jurisprudence; Red- field on Wills, vol. 1, ch. 10, sec. 2 ; Tyler vs. Gardner, 35 N. Y., 559 ; Gardner vs. Gardner, 34 N. Y., 155 ; Peck vs. Gary, 27 N. Y., 9. Section 2. General Requisites to the Validity of Wills. The form of a will is not material, provided it sufficiently manifests the intention of the testator : that is, no technical words or arrangement of words is required. Tlie common appeal or reference to the Supreme Being is quite unneces- sary, and is becoming less commonly used. It can do no harm, and is a- mere matter of taste. The more direct, busi- ness-like, and concise a will is, the better ; as it is more likely to be clearly understood by the testator, and to convey its meaning clearly to those who come after hiin. Wills are re- quired to be in writing, with exceptions usually made in favor of nuncupative wills, by which certain classes of per- sons, (soldiers in active service and mariners at sea,) may make verbal disposition of their personal estate, to take effect OF WILLS. g57 after their death. Formerly, at the common law, all wills might be made verbally • but it was found that the temptation to set up and prove a false and fraudulent will was too great to be resisted, and the frauds and perjuries to which such wills gave occasion, induced the enactment of the statute, 29 Charles II, ch. 3, which, while prescribing the formalities of a will, and that it should be in writing, &c., excepted from its provisions the will of a soldier or sailor, and allowed them to dispose of their personal estate as they might have done be- fore the statute. The rule governing the making of these wills is the common law as it existed before the passage of the statute of frauds. No particular form of words is neces- sary to constitute a good nuncupative will, and no specific number of witnesses is required, but all the facts necessary to support it should be proved by positive evidence. Such wills have been passed upon in recent cases, as fol- lows : In re. Goods of Arthur White, 22 Law Rep., 110 ; Hubbard vs. Hubbard, 4 Selden, 196 ; Ex parte Thompson, 4 Brad., 160. A party seeking to prove an ordinary will must establish, by affirmative proof, that the will was signed by the testator, or by some person in his presence and by his direction, and that it was attested and subscribed by the required number of competent witnesses. The signature should regularly be made at the end of the will : but, unless express provision is made with reference thereto in the statute, it would be suffi- cient whatever might be its local position, if it appear mani- festly to have been made with the intention of authenticating the entire instrument. The party may make his mark, and, if duly witnessed, it is a sufficient signing. So, where the signature of the testator is really made by another person guiding his hand, and he assents to the guid- ance or afterward acknowledges it, it is sufficient. It need not be under seal, unless the local statute specially requires it, and has not here even the force which it has upon a deed or bond, as imparting a consideration. 858' OP WILLS. It is not essential that the very act of signing be seen and noticed by the witnesses. His acknowledgment that the signature is his, accompa- nied by a request that the person to whom the acknowledg- ment is made should attest it as a witness, is sufficient, unless the local statute expressly requires that the signing by the testator should be in the presence of the witnesses. It is usually required that the witnesses shall attest the will by signing their names in his presence, and the testator should declare the instrument to be his last will. Three witnesses, as in the English Statute, are required in most of the States ; and, as a surplus witness can do no harm, it will always be safe to have that number. Wills of personal estate, if valid by the law of the testa- tor's domicil, are good everywhere : but a will of real estate must, ordinarily, be executed according to the law of the place where the land is located. There are, however, in many of the States, statutes providing that a will, duly exe- cuted according to the law of the place where it is made, shall have the same effect upon the estate of the testator as if made according to the law of the State in which the statute is enacted. A will is said to be signed, published, &c., in the presence of the witnesses : but no formal publication of the will is necessary. In most cases, the testator declares, in the pres- ence of the subscribing witnesses, that the instrument they witness is his will, but such declaration is not necessary. It must, of course, appear, that the testator knew, at the time he executed the instrument, that it was his will : but such knowledge need not be shown by direct evidence ; it may be inferred, from the fact that he observed the formalities re- quired upon the execution of the will. The witnesses need not, and usually do not, know the con- tents of the will. It is desirable that they should state their residences, (street and No. if in a city,) and in New York, and perhaps some other States, it is required by statute and enforced by penalty. OF WILLS. 859 Section 3. Of Codicils. A Codicil is an addition or supplement to a will. It must be executed with the same number of witnesses, and, in all respects, with the same formalities and solemnities. The witnesses may be the same, or different ones, from those who attested the will. A will may have several codicils, but each must be executed with the same formalities, and attested by the requisite number of witnesses. A codicil, duly attested, may communicate the force and the effect of its attestation to a previous codicil or imattested will, so as to render valid any devise contained in such prior unattested paper, when the several instruments are written on the same paper, and even when written on a separate pa- per, if it expressly refers to the prior instrument, but it nei- ther revokes a will, nor in any degree affects it, except ac- cording to the express provisions which it contains, or unless it is inconsistent with the prior instrument. A will made by a person not of full age, or ' of unsound mind, or a married woman, and which is, on that account, invalid, may be rendered valid and effective by a codicil republishing it, executed after such disability is removed. Section 4. Of Revocation of Wills. A will, though duly made according to law, and in all re- spects as to its execution valid, in no case takes effect till the death of the testator. It may, therefore, at any time be re- voked by him at his pleasure. To prevent the revocation of wills, by loose and uncertain testimony, it was provided by the English statute of frauds, that a revocation should be by another instrument, executed in the same manner and with the same formalities as a will, or else by burning, cancelling, erasing, or obliterating the will by the testator himself, or some one in his presence and by his direction. This statute has been substantially re-enacted in all our States. 860 OP WILLS. The testator, to revoke a will, must at the time he compe- tent to make one, or the act of revocation will of itself he a nullity, and the hurdeu of proving that the testator was of sound mind is upon the party setting up the revocation. Burning, tearing, &c., in a slight degree, with a declared in- tent to revoke, is a sufficient revocation. The mere declara- tion of an intent to revoke a will, unaccompanied by any act, is, of course, insufficient, and there may he a change of pur- pose, which will prevent an effective revocation, even when the act of destruction is partly accomplished : as, when a testator, while in a passion, tore his will twice through, when his arms were seized by a bystander and he became pacified by the concessions of the devifeee; he then fitted the pieces of the torn will together, and remarked, " it's a good job it is no worse." This was held not to amount to an effective revoca- tion. As to partial revocation, by obliteration, &c., see 1 Jarman on Wills, 158, and cases cited ; and as to evidence of declarations of the testator accompanying the act of revo- cation, see 1 Greenleaf 's Evidence, Sec. 273 ; Cutts vs. Gil- bert, 29 Eng. Law and Equity, 64. See also, a full collection of the cases upon this subject, in " Law and Practice of the Probate Courts," by Wm. L. Smith, Ch. 2, Sec. 6. A subsequent will, from which it clearly appears that the testator intended to revoke all former wills, either by an ex- press declaration to that effect contained therein, or by rea- son of its inconsistency with the former, will be effective as a revocation. The burden is, however, on the party offering the second will, to show that it expressly revokes the former will , or has different contents. A class of revocations not affected by the English statute of frauds, or the similar statutes which have been enacted in this country, are those implied by law from changes occur- ring in the condition and circumstances of the testator sub- sequent to the execution of the will ; such revocations being founded on the reasonable presumption, that the will would have been differently made under the different circumstances. Marriage and the birth of a child, whether the child be born before or after the death of the testator, will be an effective OP WILLS. 861 revocation. Tlic qiiestion, what will amount to a revocation of a will, has been discussed in the cases James vs. Marvin, 3 Ct., 576 ; Lively vs. Haswell, 29 Ga., 509 ; Laughton vs. Atkins, 1 Pick., 535 ; Nelson vs. McGeffeir, 3 Barb. Ch., 158 ; Brown vs. Brown, 8 El. & BL, 876 ; Kent, Com. Vol. 4, p. 627.' FORMS. 1. Brief General form op a Will. I, James Jones, of Hartford in the State of Connecticut, hereby make this my last will and testament. First. 1 direct-that my just debts be paid by my executors hereinafter named, as soon after my death as may by them be found convenient. Second. I give to my wife the dwelling house and land con- nected therewith and now occupied by us as a homestead, and all the furniture, pictures, ornaments, &c., contained therein, and used by us in connection therewith, and 15 shares of stock of the Hartford and New Haven Railroad Company. Third. I give to my son Joseph, all my real estate in Bloomfield, and 110,000 in cash. Fourth. I give to my daughter Jessie, all my stock in the Hartford and Phoenix Banks in Hartford, and four thousand dollars in cash, to be held by her to her sole and separate use, and to the use of her heirs and assigns, free from the inter- ference and control of her husband. Fifth. I give to my daughter Jane, a life estate in my farm in East Hartford, and three cows, 2 yoke of oxen and 3 horses, now on said farm, and all the tools, implements and utensils, used in working the same, and three thousand dollars in cash. Sixth. I hereby appoint my son Joseph to be executor of this will. In testimony whereof I hereto set my hand, this 11th day of June, A. D. 1869. James Jones. Signed and published as his last will by the said James 862 OP WILLS. Jones, in the presence of us, who in his presence and in the presence of each other have hereto subscribed our names as witnesses. Amos Bird, 2 Canton St., Hartford, John Ross, 3 Bellevue St., Hartford, Moses Smith, 95 Asylum Ave., Hartford. 2. Same, with Provisions for Minor Children, Appoint- ment op Trustees, &c. I, Miner Holcomb, of New Britain, hereby make this my last will. After payment of my debts and personal charges, I devise, bequeath, and dispose of, my estate as follows, to wit : First, To my wife I bequeath my homestead in New Brit- ain, with the wood lot used in connection therewith, to be held by her and her heirs forever. I also devise to her the use of $10,000, to be held and managed for her by my trustees hereinafter named, during her life, together with the right to select and appropriate to her own absolute use such articles of personal property as shall be of interest to her, not exceeding $6,000, at the ap- praisal value : the foregoing provision to be in lieu of her right of dower in my real estate. Second, I give and devise all the rest of the real estate of which I shall die seized, to my son James, to be held by him and his heirs to their use and behoof forever, together with the stock and farming utensils that shall be on my land or used in connection therewith, excepting only that used in connection with my homestead hereinbefore bequeathed to my wife. Third, I hereby appoint Simeon Johnson and Aner Sperry executors and trustees, to perform the trusts of this will ; and I bequeath to them all my personal estate of every na- ture, except the articles, not exceeding f 6,000 in value, which may be selected by my said wife, in trust, that they shall dispose of the same to the following uses and purposes ; and OF WILLS. 863 I hereby authorize and empower them and the survivors of them, if in the performance of their trust it becomes in their judgment necessary or expedient, to sell at public or private sale in such manner as they shall deem most for the interest of all concerned, any part or all of the estate which shall come to their hands, and to invest and reinvest the proceeds at their discretion ; provided, however, that they shall make no loan of money for any period exceeding one year, except upon the same ''securities which are required to be taken by savings banks, in pursuance of law. I direct my said trus- tees, after payment of debts, &c., as hereinbefore is pro%'ided, to appropriate the annual rental, income, and profits of the estatej which shall be in their hands, as follows, to wit : — First, to pay over to my wife the net income of $10,000, to be kept on loan by them for this purpose during her natural life, free of all taxes and burdens whatsoever. Second, after payment, from year to year, to each of my trustees, of reasonable charges and expenses, I direct them to divide the remaining income arising from the estate in their hands equally between my daughters, Alice and Louisa, to their separate use, taking their separate receipt therefor, so long as my said wife shall live ; and upon the death of my said wife, (if they shall have then attained the ages re- spectively of twenty-one years, and if not, when the younger of them shall have attained said age,) I direct them to trans- fer, assign, and pay over, to my said daughters, the net bal- ance and remainder of the property and estate, which shall be in the hands of my said trustees at that time, equally dividing the same between them ; such property and estate to vest in my said daughters to and for their sole use, in fee simple forever ; and provided that if either of my said daughters shall die without issue and unmarried, before said estate shall be transferred to them as hereinbefore is pro- vided, the share, which would have been hers, shall be equally divided between her brother and sister. If she shall be married, it shall be competent for her to direct by an instrument in writing, to be signed by her in the presence of three witnesses, how such portion as would 864 OP WILLS. belong to her shall be disposed of, and my said trustees are hereby required to carry out the directions of such appoint- ment as she may make. I hereby direct and request that my said executors and trustees shall be exempt from giving sureties upon their official bonds, and I also provide that they shall be liable only, each for himself, for actual fraud, or such negligence as occasions the loss of property or estate. In testimony whereof, I hereto set my hand, this 11th day of June, A. D. 1869. MINER HOLCOMB. On this 11th day of June, A. D. 1869, the said Miner Holcomb signed the foregoing instrument in our presence, declaring it to be his last will ; and as witnesses thereof we have in his presence, and in the presence of each other, hereto subscribed our names. Henry B. Taintob, 40 Church St., Hartford, Theodore Lyman, Myrtle St., Hartford, Reese B. Gwillim, Cor. Trumbull and Pratt Sts., Hartford. 3. Form for Codicil. I, Miner Holcomb of New Britain, make this codicil to my last will and testament made and published by me, and dated the. 11th day of June, A. D. 1869, which will I ratify and confirm in all respects, except as the same shall be changed hereby. Whereas, by my will I gave my real estate (except that given to my wife) to my son James, together with certain personal estate, and whereas my said son has since died, without issue and unmarried : now I hereby revoke said devise, and bequeath the personal property, so devised, to OP WILLS. 865 my said wife, and the real estate to the persons named in my said will as executors and trustees, to be held by them to and npon the uses and trusts named in said will, and pre- cisely in tlie same manner, and to the same iises, as if it had been included in the original devise to them. In testimony whereof, I hereto set my hand, this 30th day of July, A. D. 1SG9. MINER HOLCOMB. Signed and published by the said Miner Holcomb, as a codicil to his last will and testament, in our presence, and we in his presence and in the pres- ence of each other have at his request hereto sub- scribed our names as witnesses. Ezra Hall, United States Hotel, Hartford, Geo. H. Bukdick, 333 Main St., Hartford, F. A. Chamberlin, 9 HiUs- Block, Hartford. 55 CHAPTER XXXIX. OP HIGHWAYS, AND THE LAWS REGULATING THEIR USE. Public ways consist of town ways and highways. Town ways are those laid out by a town, nominally foi' the use of the inhabitants : but they are not confined to this use, as the real utility and advantage of a road, even to the inhabitants of a town, may consitet less in its being used by the citizens, than in facilitating the intercourse of strangers with them. Highways are those in which the citizens generally have a right to pass. They are laid out and supported, upon grounds of public convenience and necessity, by officers entrusted with that power. Their care and control is sub- ject mainly to statute regulation, and the laws of the dif- ferent States in their details will not be given here, as they can be easily referred to by those who desire information so entirely local. By the location of a highway, (or a town way,) over the land of any person, the public acquire an easement : but the soil, and the fee of the land, remain in the owner, who may put the land to any use, and derive from it any profit, not inconsistent with the easement. Thus, he may depasture the grass, (subject to local regulations as to cattle, &c., in the highways,) or use the portion below the surface for sew- erage, if not needed by the public. If the road is at any time discontinued, he will hold the land free of incumbrance'. We have seen that no man can be deprived of his land or other property by an adverse appropriation to public uses, without being paid therefor just and reasonable compensa- tion. Where the public convenience and necessity require OF HIGHWAYS. 867 its appropriation, it may be taken, subject to such provision for compensation. The public convenience and necessity must be sufficient to warrant sucli an appropriation at the public expense; and where that is not the case, a highway cannot properly be laid out, upon the ground that individuals, who are specially in- terested, have agreed personally to contribute. Such an agreement, however, will not invalidate the proceedings, un- less they were founded on that basis and tire public use was only colorable. The repair of highways is usually imposed upon towns, and they are made subject to indictment if they are not kept in a reasonable condition for the accommodation of the pub- lic travel, and are also made liable, by statute provisions, for any darnage arising to any one in his person or estate, from injuries received or happening in consequence of a neglect of this duty, provided they have had reasonable notice or knowledge of the want of repair, or, in some cases, provided it has existed a specified time, usually twenty-four hours. In some of the States, double damages are recovered, by way of remuneration and also of penalty. No person can recover, however, unless the damage arose without his fault, and he must allege and prove ordinary care. The law of the road prescribes the manner in which roads shall be used. This is sometimes expressed in the statutes, and sometimes is to be learned from the principles of the common law which are applicable to the subject. It is tlie duty of all persons, who are travelling upon public ways, to observe the established usage, or law of the road, in meeting and passing other teams. In England, the custom is, to keep to the left, while in the United States, it is to keep to the right in passing. At common law, if a carriage, coming in any direction, leave sufficient room for any other carriage to pass upon its proper side of the way, it is a sufficient com- pliance with the law of the road : but, by the statutes of several of the States, whenever persons, travelling with car- riages or vehicles of transportation, shall meet on any public way, they are required seasonably to turn their carriages to OP HIGHWAYS. the right of the centre of the road, so far as to permit such carriages to pass without interruption. Each party is thereby compelled to keep to the right of the centre, though it may be much more difficult for one than for the other. The " centre " is not necessarily to be measured and calculated with reference to the smooth or most travelled portion, but is to be the centre of the worked part. Of course, when the road is clear of vehicles, a party may drive where he pleases, and the rule is not to be so construed as to prevent a party from driving on to the left hand side of the road for the purposes of his convenience, as to call at a dwelling or store, or to enter upon the adjoining land : but, while so doing, he should exercise all proper care, to prevent collisions with teams properly and rightfully in the use of that side of the road. In case of collision on a public road, the party driving on the wrong side must answer for the damages, unless the other party, bt/ want of ordinary care, also contributed to produce the injury. But a party may not, because one is driving on the wrong side of the road, wilfully, or even carelessly and negligently, drive into his vehicle. A foot passenger on the road has a light of way and of crossing, and a person dri- ving a -carriage must exercise care, to avoid driving against him, and if he does not, and the foot person is injured, he may recover his damages. It is said to be no excuse if the driving lines break, and that such an accident will not ex- cuse ; for a party is bound to have his harness of sufficient strength. But this, probably, would depend upon the special circumstances of each case. For example : if a man who is driving a horse ordinarily gentle and easily managed, with reins amply sufficient for any emergency to which he has ever known the horse to be exposed, and for every ordinary occasion, meets an elephant or other unexpected and unu- sual object of terror, and the horse, being frightened, breaks away from all control and, the lines giving way, becomes un- manageable, and runs over and injures a foot person, the owner or driver of the horse would probably not be held responsible. OF HIGHWAYS. 869 Persons on foot must use care to avoid danger from car- riages, and may not lawfully interrupt unnecessarily the pas- sage of vehicles. • When a child, without discretion to avoid danger, is in a public way without any one to guard him, and is there run over and injured, the traveler is not liable, ex- cept upon proof of culpable negligence. Every person, in any manner using a public way, must conduct himself in such use, with reference to the conven- ience, rights, and safety of others. If he would leave his horses in the street, he must leave them in the care of a suit- able person, or hitch them with reasonable care ; and if he shall, in any case, omit these precautions, trusting to the dis- cretion of his horse, and damages arise to one who is in the use of the road and in the exercise of ordinary care, he will be responsible therefor. So, one driving a loaded vehicle, or a team which from its nature must pass slowly, must exer- cise due and reasonable diligence in giving place for one who should properly, or may reasonably and lawfully, drive more rapidly. A loaded team may not needlessly and unreason- ably delay the passage of others, by refusing to turn out, and if its owner or driver does so, without justifiable excuse, he will be liable in damages, or may be indicted therefor. The same rule holds in favor of a horse car, or any vehicle right- fully upon and in the use of the road. This question was ably, and with his usual vigor, discussed by the late Chief Justice Shaw of Massachusetts, in a case brought before him upon an indictment for obstructing a horse car, by refusing to turn out from the track. Any unreasonable occupation of a public way, whether arising out of a refusal to turn out and allow a more rapid vehicle to pass, or from an unjustifi- able occupancy of such a part of the road as prevents other vehicles from passing, will render the party so trespassing, liable in damages to any one suffering injury therefrom, and generally, also, to a criminal indictment or complaint there- for. See Commonwealth vs. Drew, 14 Gray, 69. CHAPTER XL. Op Presumptions, and General Principles op Evidence. Every sane man is presumed to contemplate the natural consequences of his own act. For example : an intent to murder is presumed against one, who makes an assault with a deadly weapon. A person marrying, within the time lim- ited for the legal presumption of the death of a husband or wife not heard from, will be presumed to have intended to commit bigamy, if it turns out that the former husband or wife was alive, even though such person honestly believes, upon information received, that the former husband or wife was dead. (So held by the Supreme Court of Massachusetts in " Commonwealth vs. Mehetable Mash," 7 Metcalf, 472.) An infant, under the age of seven years, is presumed to be incapable of committing a felony. If a woman act in the presence of her husband in the commission of an offence not amounting to treason or felony, she is presumed to act with- out guilty intent and by the coercion of her husband. Some presumptions are conclusive, while others are subject to be disproved. Disprovable presumptions are such as are founded upon the general experience of the connection usually found to exist between certain facts or occurrences. For example : upon proof of homicide, the law presumes malice, and the burden of disproving it is thrown, in most cases, upon the accused ; though this rule is not universal, and the contrary is ^ngorously claimed by a dissenting judge, in the case of Commonwealth vs. York, 9 Met., 93. A person found in possession of stolen property is pre- sumed to have come by it unlawfully. OF PRESUMPTIONS. 871 A letter, duly posted, is presumed to have reached its des- tination by due course of mail. Every man is presumed to obey the laws; and, upon accu- sation of crime, is presumed to be innocent, till he is proved to be guilty. This presumption is so strong, that when guilt can be affirmatively established only bj proving a negative, the negative must in most cases be proved by him who alleges the guilt, in opposition to the general rule, which devolves the burden of proof upon the party alleging the affirmative. Other presumptions are founded on the continuance or per- manency, of longer or shorter duration, of human affairs : thus, every natural person is presumed to be sane, till the contrary is proved. When he is once proved to be insane, his insanity is presumed to continue, and the burden is de- volved upon the party who alleges the contrary. So, there is a presumption of the continuance of human life, which must be met by affirmative proof of the death of a party, or by the lapse of such period of time (usually seven years) as is fixed upon to raise the contrary presumption of the death of a party who has not been heard from in that time. A partnership is presumed to be continued till it is proved to have been dissolved. So, there is a presumption that the law is observed, and that all things are rightfully and prop- erly done : as, where words are interlined in an instrument, it is presumed that they were rightfully so interlined, by one having authority, at a time when it might properly have been done. So, a person in possession of land or other property is presumed to be rightfully in possession ; and the payment of rent for the last quarter, and application thereof by the lessor, unexplained, raises a presumption of a payment of all prior rent. Tliere are other presumptions, which differ from the fore- going in that they are conclusive upon the parties. These consist chiefly of those cases in which the long experienced connection, before alluded to, has been found so general and uniform as to render it expedient that this connection should be taken to be inseparable and universal. The most common example of these presumptions is presented by the statutes 872 OP PRESUMPTIONS. of limitation, which are but express declarations of the com- mon consent, that such presumptions shall be conclusively acted upon< Thus, a debt, after a limited period, is conclu- sively presumed to have been paid ; a trespass, in like man- ner, is conclusively presumed to have been satisfied. So, possession of land, for the period named in the statute, af- fords conclusive presumption of title. And, as to this, there is no difference in principle, whether the subject enjoyed be a corporeal or incorporeal hereditament, — a right of way over one's land being established by the same lapse of time as would warrant the presumption of a valid grant of the land itself. So, the neglect of a party to appear and answer judicial process, he having due notice thereof, is taken con- clusively against him, as confession of the matter charged. So, a sealed instrument is, in the absence of fraud or illegal- ity, presumed to rest upon a sufficient consideration. The law of estoppel rests upon this same basis ; by force of which, when a man has done some act, the effect of which the law will not permit him to deny, he is said to be conclu- sively estopped thereby : as, where one takes land as lessee, he is not permitted to deny the title of the landlord from whom he takes. So, the records of a court of justice are conclusively presumed to be correct ; former judgments, still in force, rendered by a court of competent jurisdiction in a suit between the same parties, are conclusive evidence upon the matter directly in question in such suits, in any subse- quent action or proceeding, the parties being estopped to deny the effect of the judgment. CHAPTER XLI. OP PATENTS. Section 1. What is Patentable. Congress is authorised by the constitution of the United States, " to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discove- ries." The provision is in favor of authors and inventors, and the right intended to be secured to authors is called eopy- riffht, and that to inventors, patent right. The first act passed by Congress, in pursuance of the power thus conferred, was in 1790. This was repealed by the ict of 1793, and other acts were passed in 1800, 1819, and 1832 ; all of which wel-e repealed and superseded by the act of 1836, which, together with the amendatory acts since passed, con- stitute the present statutory law of the United States on this subject. Those laws are collected in pamphlet form, and, together with the rules and directions for proceedings in the patent office in another pamphlet issued by the Commissioner in 1867, for the convenience of those who have occasion to use them, are sent to parties on application. For practical use, these are the original and most complete source of in- formation which parties specially interested can have. We shall, therefore, here only state briefly and generally what is patentable, how a patent may be obtained, and the rights of a patentee. The words of the statutes are applicable " to any person having discovered or invented any new and useful art, ma- chine, manufacture, or composition of matter, or any new and useful improvement in any art, machine, manufacture, 874 OP PATENTS. or composition of matter, not known or used by others before his discovery and invention thereof, and not, at the time of his application for a patent, in public use or on sale with his consent or allowance, as the inventor or dis- coverer. This is the language of the sixth section of the act of 1836, which is enlarged by the eleventh section of the act of 1861, by a provision, " that any citizen or citizens, alien or aliens, having resided one year in the United States, and taken the oath of his or their intention to become a citizen or citizens, who by his, her, or their own industry, genius, efforts, and expense, may have invented or produced any new and original design for a manufacture, whether of metal or of other material or materials ; or original design for a bust, statue or bas-relief, or composition in alto or basso relievo, or any new and priginal impression and ornament to be placed on any article of manufacture, the same being formed in marble or other material ; or any new and useful pattern, print or picture, to be either worked into, or worked on, or printed, or painted, or cast, or otherwise fixed on any article of manufacture ; or any new and original shape or configura- tion of any article of manufacture, not known or used by others before his, her, or their invention or production thereof, and prior to his, her, or their application for a patent therefor, and who shall desire to obtain an exclusive right or property therein, or right therein to make, use, sell, and vend the same or copies of the same, to others, &c., may apply for and ob- tain a patent as is provided for in said section." These provisions so fully define what is patentable, that it is hardly necessary to add anything to them, except to state in few words what is held to be not patentable. The discov- ery of a new principle, theory, elementary truth, or any im- provement upon it abstracted from its application, is not pa- tentable : but the application of such discovery to a practical use in the new construction, operation, or effect of machinery, or composition of matter, producing a new substance, or an old one in a new way, by new machinery, or new combina- tions, by which a different result is obtained, or obtained in OP PATENTS. 875 a cheaper or better manner, is an invention, and is pat- entable. Again, a change in the position of operatuig pow- ers, or in tlie position of the thing on whicli tlie effect is pro- duced, is not an invention. Neither is the substitution of one known mechanical equivalent for another ; as a wheel and axle instead of a screw. Inventions consist not in the discovery of new principles, but in new applications and combinations of old ones. The inventor of a new compound, substance, or manufacture, and of a mode of producing it, may patent both the process and the product. Invention, in the sense of the patent law, is the finding out, contriving, devising, or creating, something new and useful inprocess or product, ly an operation of the in- tellect. It is not important, whether it require much or little thought, study or experiment to make it ; or much or little labor or expense to devise and execute it. It is not easy to determine where mechanical skill ends and invention begins ; but one practical test is, that where the combination of known elements produces results which are new and useful to the public, the person who applies and discovers such combina- tion is an inventor within the meaning of the patent laws. Section 2. Sow a Patent may he Obtained. There is a patent office connected with the government, which was formerly attached to the Department of State, and which is now, by force of the act of March 3, 1849, connected with the Department of the Interior ; the chief officer whereof is styled the Commissioner of Patents. This officer and his subordinates are required to take an oath and give security for the faithful performance of their duty. All books, papers, models, specimens, and illustrations connected with patents, are kept in this office. It has also a library, composed of such scientific books and publications as are adapted to the uses of the office and inventors. The application for a patent must be made by the inventor or his assignee to the Commissioner of the Patent Office, by 876 OP PATENTS. a petition in writing. This petition must be accompanied by such full and clear specification and description of the inven- tion as will be sufficient to identify and distinguish it from all others ; and by drawings, specimens, or models, sufficient for a complete illustration. The description and drawings must be signed by the inventor, and attested by two witnesses. If the description be intentionally defective, either by con- taining too little or too much, or so vague and general as not sufficiently to describe and define the thing invented, it will invalidate the patent. If, however, the error arise from mis- take or inadvertency, the patent may be surrendered and a new and valid one issued upon a new and amended specifica- tion. Other formalities connected with the issue of a patent, maybe found in the " Rules and Directions" contained in the pamphlet issued by the Commissioner, which is so easily ob- tained that it is quite useless to insert its contents here. No patent can be obtained, however, until an invention is perfected and adapted to use. While imperfect and incom- plete, resting in mere theory, in intellectual idea, or even in uncertain experiment, it is not patentable. It must be actu- ally reduced to practice, and embodied in some distinct ma- chinery, apparatus, manufacture or composition of matter, be- fore it can be brought within the provision of the patent laws. He is, therefore, the first inventor, within the meaning of those laws, who first perfects and adapts the same to use, re- ducing his invention to a fixed, positive, and practical form. This does not require that an invention shall Ije in use or re- duced to actual practice before the issuing of a patent, other- wise than by model, drawings, and specifications containing such description of the invention as will enable any person, skilled in the art, to reduce it to practice and use it. Provision is made by which a citizen, or resident alien, . who has not matured his invention, on payment ol ten dol- lars may file in the patent office his caveat, describing his in- vention as far as can then be done, which will entitle him for the period of one year to notice from the Commissioner of any interfering application. If, within three months from OP PATENTS. 877 receiving such notice, he shall perfect his application, he will thus retain his priority. A form of caveat is contained in the " Rules and Directions" referred to. Section 3. Rights of the Patentee. The patent is in the form of a cei'tificate, signed by the Secretary of the Interior and countersigned by the Commis- sioner, under the seal of the office. It contains a short descrip- tion of the invention, sufficient to indicate its nature and design, referring for particulars to the specifications given by the inventor, a copy of which is always annexed to the pat- ent. It sets forth, in substance, that the patentee lias com- plied with the requisitions of law, and then proceeds in ex- press terms to grant to him, and his heirs and assigns, the full and exclusive right to make, use, and vend to others to be used, the invention for which the patent is given, for the term of seventeen years from the date of issue, throughout the United States. (Acts of 1861, Chapter 16.) If a person entitled to a patent dies before obtaining it, his personal representatives may take it out. So a patent may be taken out by the assignee of an inventor. The proprietor of a patent is required, under penalty, to put the date of his patent upon every article sold, and all persons are prohibited, under penalty, from placing upon any unpatented article words, stamps, or devices, signifying that it is patented ; or from placing without the consent of the proprietor such words, stamp, or device, upon any patented article manufactured in fraud of the patent. For the protection of the patentee remedies are provided, which include both prevention and redress. Original juris- diction is given to the Circuit Court of the United States, in patent causes, with right of appeal to the Supreme Court as in other matters, of all cases and controversies growing out of patent rights. Upon a bill in chancery the proprietor may, in a proper case, prevent by injunction a threatened in- fringement of his patent. He may also, in an action on the 878 OF PATENTS. case, recover damages for any injury actually done, and in such action the court has power to increase the damages to any amount not exceeding three times the verdict rendered by the jury. In a proper case made, upon bill in chancery, the proprietor may recover the profits made, by any party in any business carried on, by an infringement of his patent. To enable him to secure this remedy, he is entitled to exam- ine the defendant under oath, and to an accounting by him. The subject of patents is fully and _exhaustively treated by Curtis in his work on Patents, an edition of which was issued in 1867. It is also considered in Kent's 66th Lecture, Vol. 2, pp. 455-472. And the cases are fully and industri- ously collected by Mr. Law in his " American Digest." In Ohio, Indiana, Illinois, and perhaps other States, there are local laws, the effect of which is, substantially, to pro- hibit the sale, or the offer for sale, of a patent right in any county, until the letters patent, or a certified copy, &c., are exhibited to the county clerk, and an affidavit made and filed as to title, &c., and fees paid, &c. ; and no note given in consideration of a patent right is valid, unless it is expressed on its face, that it was given in consideration of a patent or of some interest therein. Failure to comply, &c., is usually punishable by fine or forfeiture. CHAPTER XLII. OF COPYEIGHT. Section 1. For what a Copyright may be Obtained. Learned and interesting discussions have been had as to the exclusive right of an author, at common law, to owner- ship in his manuscript, and to multiply and publish copies thereof for sale : but this question has become of no practical interest, as whatever the right at common law may have been, it is now modified and limited, in England by the Stat- ute of Anne, and in this country by the Acts of Congress passed in pursuance of the power conferred in Art. 8, Sect. 1, of the Constitution of the United States, " to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The acts of Congress prior to 1819 were repealed by the Act of 1831, and this subject, in the United States, is now regulated by the Acts of 1819, 1831, 1834, 1859, 1861, and 1865. These are easily found in the published volumes of United States Laws, and to them alone we must look to as- certain and define the rights and remedies of authors in the United States. Under these Statutes, a copyright upon any original, un- ^M^fe^ec? manuscript, map, chart, dramatic or musical compo- sition, engraving, design, print, cut, or photograph, may be so protected by copyright that the author, inventor, or designer, being a citizen of the United States or resident therein, and his executors, administrators, and assigns, shall have the sole right of printing, reprinting, publishing, and vending the same, and of publicly performing and representing dramatic 880 OF COPYRIGHT. compositions, for the period of twenty-eight years from the time of recording the title thereof ; and if such author, in- ventor, or designer, (or any of them, where tlie work was originally composed, invented, or designed, by more than one person,) be living, a citizen of the United States or resident therein, at the end of such term, or being dead shall have left a widow or child or children, either or all of them then living are entitled to the same exclusive right for a further term of fourteen years, on complyuig with the pro- visions of the said Acts of Congress. Although said acts in terms protect the author or proprietor of all the kinds of property therein named, in its original and exclusive publication, sale, &c., they really secure and protect only such rights as will be enforced by the courts. This ex- cludes from real protection all works, of whatever nature, which conflict with morality or public policy. This is not in pursuance of any provision to that effect in the statutes, but rests upon a principle of common law everywhere recognized, that no man can claim protection for that which is mischiev- ous or immoral. There is not, in England, or in this coun- try, a censorship of the press : but the courts will not render active aid to any man who is in violation of the laws of the land. This rule is applicable not only to books which are of an irreligious, immoral, libellous, or obscene description, but to all sorts of immoral and unchaste designs, cuts, prints,, •etchings, photographs, or ^ engravings. Neither will the courts protect a book which falsely purports to be written by a deceased author. The act is designed to protect authorship, invention, &c. It is, therefore, confined to that which is original in the au- thor ; and where neither the design nor general arrangement of a print, nor the parts which compose it, are the invention of the plaintiff, but he has employed and paid the artists who have executed it, he is not entitled to a copyright. Binns vs. Woodruff, 4 Wash., C. C, 51. But one may obtain a copy- right to a map of a State or country, which he has surveyed-, or caused to be compiled from existing materials at his own OF COPYRIGHT. 88l expense, or skill, or labor, or money. Emerson vs Davies, 3 Story, 781. The mere ownership of the copper-plate of a map, or of the stereotype plates of a book, does not carry with it the exclusive right of printing and publishing : but the incor- poreal interest in the copyright subsists independent of, and separate from the plates, and would not pass with them by an adverse sale of such plates on execution, though the plates themselves may be taken and sold as so much metal. Millar vs. Taylor, 4 Burr., 234 ; Stephens vs. Cady, 14 How., 531 ; Stevens vs. Gladding, 17 How., 451. In such a case, the rights of the owner of the copyright will be protected against such separate owner of the plates, in the same manner, and to the same extent, as against any other person. The question has been sometimes raised, whether letters, addressed to real correspondents, may be protected by copy- right ; and, if so, to whom they belong, whether to the writer or the person to whom they are addressed. It is now settled, both in England and in this country, that they may be so protected in favor of the writer, Pope vs. Curll, 2 Atk., 342 ; Thompson vs. Stanhope, Ambler, 737 ; Curtis on Copyrights, 90 ; Folson vs. Marsh, 2 Story, 100 ; 2 Story, Equity, pp. 944, 211. An abridgement of a book, made in good faith, and being in a new form and language and new combinations, and not a mere reduction of the book by the use of scissors, is en- titled to protection. It sliould, however, be a substantial condensation of the materials of the original work, by the exercise of reason, judgment, and taste requiring intellectual labor ; and not an abridgement, consisting merely of extracts of the essential or most valuable parts of the original work. See Emerson vs. Davies, 3 Story, 778. Compilations, especially if accompanied by explanatory re- marks, notes, and index, may be sufficiently original to be entitled to a copyright. Gi'ay vs. Riissell, 1 Story, 11. The criterion of distinction upon which the cases rest as to abridgements, compilations, and selections, seems to be, 56 882 OP COPYRIGHT. has there been intellectual labor, taste, judgment, and skill bestowed, in contradistinction to mere mechanical work ? Where a book is translated into another language, the translation may be the subject of a copyright ; for, while an author may be said to be the inventor, both of the ideas con- tained in his book and of the combination of words in which he presents them, he has not, after publication, exclusive property in his conceptions and inventions, but they thereby become the common property of the public. The only prop- erty exclusively reserved to himself thereafter is, the right to multiply and sell the copies of that particular combination of words wliich he has employed to convey to others such "conceptions and inventions." Stowe vs. Thomas, 2 Am. Law Reg., 229, (also 2 Wallace, Jr., 547.) What is original matter within the purview and protection of the Copyright Laws, it is not easy absolutely to settle and limit. We have seen that an abridgement, compilation, or translation, may be sufficiently original to entitle it to pro- tection, and it must be quite manifest that few men, however original, write books of any size or excellence without avail- ing themselves, more or less, of the intellectual labors of oth- ers. In Law, History, Geography, Mathematics, 18 , between A. B. of , of the first part, and C. D. of , of the second part, witnesseth: That the said A. B. and CD. have this day each paid to the other the sum of one dollar, and have each cancelled all accounts against the other, and have discharged, or intend to discharge, all claims of every nature which either has upon the other. Now in consideration thereof, and in pursuance of said in- tent, each of said parties hereby releases and forever dis- charges the other from all claims and demands of every nature, arising out of any and all contracts, liabilities, acts, 894 OP RELEASE AND RECEIPT. and omissions in the past, or which may result from the pres- ent condition of things. Witness the hands and seals of said A. B. and C. D. hereto interchangeably set, this day of , A. D. 18 . A. B. [L. S.J C. D. [L. s.] 7. Release of Debtors upon a Composition of Creditors. Whereas C. D. of , was on the first day of January last indebted to divers persons, to an amount in the aggre- gate larger than lie was able to pay in full : and whereas he, on that day, made such statement of his affairs to his creditors, at a meeting called and held for that purpose, as induced all of said creditors to enter into an agreement with him to receive in full for their several claims an amount equal to fifty per cent, thereof, if paid at any time prior to the first day of July next : and whereas fifty per cent, of the amount due me as one of said creditors has this day been paid me : now therefore, in consideration of said payment and of the other matters herein before recited, I hereby re- lease and discharge the said C. D. from all claims and de- mands of every kind, nature, and character whatsoever. Witness my hand and seal, this day of , 18 . A. B. [l. s.J Gexekal Note. Receipts and releases are prima fade evidence of the facts stated in them, but are never so far conclusive as to estop a party clearly proving that they were executed upon an error or mistake. A release in full of all de- mands, carefully executed, will be binding and conclusive upon the parties, unless evidence of fraud or mistake be clear and conclusive. A release of one of several joint promissors, unless specially reserving rights against the others, will release all. So, a release of several wrong doers generally releases all. An a'Tcement not to sue one of several johit debtors will not discharge the others. The learning upon this subject is sufficiently refined and technical, so that a party who is about to release one of several joint debtors, or joint wrong doers, or a principal party, or property pledged as collateral security, where there are endorsers, sureties, or guarantors, should consult reliable counsel. CHAPTER XLV. OP TENDER. Every person against whom claim is made has the privi- lege of making an offer in satisfaction of the claim. This offer is called a tender. Where the claim is for money, tender of the amount which the debtor admits to be due might, at common law, be made at any time before suit brought. By statute provision in most of the States, it may now be made after suit is brought ; but when so made, must include the costs of suit up to the time of the offer. The importance of this subject is considerably diminished by a modern statute provision, now become quite common ; in pursuance of which a defendant may, at any time, offer judg- ment to the plaintiff for the amount which he admits to be due, with costs to the time of the offer. This is more con- venient than a tender, and, with reference to claims upon which suits are pending, it is in most respects equally effec- tive. At common law, a tender was required to be an uncondi- tional offer of the money, unaccompanied by any qualifying words, or by a demand or a request of anything beyond the mere receipt of the money by the claimant, who is not under obligations to give a receipt therefor. The money must not, therefore, be offered on condition that the claimant will give a receipt for it, or as the whole amount due to the claimant. To avoid the possibility of misunderstanding, it is well that the offer be in writing, which, if sent by a messenger, may be as follows : " Sir, the bearer is directed by me to pay or tender to you in respect of the debt claimed by you to be due from 896 OP TENDER. me. Such tender will be unconditional and without reserve, and, if accepted, will be without effect upon any claim you have on me for any additional sum. ^ Dated, &c. Yours, &c. A. B." The kind of money with which a tender may be made in this country is specified in the Constitution of the United States, Art. 1, Sects. 8 and 10. A tender of bank notes is, however, sufficient, unless objected to at the time on that ac- count. Bank of United States vs. Bank of Georgia, 10 Wheat., 333. Properly, the exact amount of what the debtor desires to offer should be produced and counted. The party must, therefore, have the money about him, so that he mai/ pro- duce it and count it, if necessary. The production of the money, however, and the actual offer of it to the creditor, are dispensed with, if, when it is about to be produced, and the amount is named, the claimant declares he will not take it, because more is duel Hazard vs. Loring, 10 Gush. 267. So, if the creditor absents himself, with the design of eva- ding it, that will excuse the production of the money. The exact amount due, as nearly as can be, must be offered : but, of course, the offer of a larger amount than is claimed, will not invalidate the tender. After a tender has been made, the party making it must hold himself ready, at all reasonable times and proper places, to pay over the sum tendered, if it is subsequently demanded. Tucker vs. Buffum, 16 Pick., 46 ; Town vs. Trowe, 24 Pick., 168. If the creditor accepts a tender properly made, he does not thereby admit the sum received is all that is due him, and may still bring an action for the balance. A tender, though not accepted, is an admission by the party making it, that he owes the amount tendered. Where a suit is brought upon a claim on which tender has been made, the defendant must plead his tender, and must allege that he has been at all times, and is now, ready to pay the amount tendered, and must bring the money into court and deposit it. The real OP TENDEB. 897 question to be tried, in a case in which tender has been made, is, whether the defendant is indebted beyond the amount ten- dered; and the plaintiff is entitled, in any event, to that amount. The offer of judgment, under modern statutes, is, in this respect, to be preferred ; as, if the offer is not accepted by the plaintiff -within a time usually limited by the statutes, the defendant has the benefit of the offer, and, unless the plain- tiff recovers a greater amount, will be entitled to recover his costs accruing thereafter in the suit, while the whole question remains open to be tried, and the plaintiff may not recover anything. 57 CHAPTER XLVI. GP THE LAW OP SHIPPING. Section 1. G-meral Pririeiples. This is a subject of such extent, that volumes are written upon it. We can, of course, in this chapter, only speak very briefly of some of the simpler elementary principles, which govern the ownership, use, and management, of this class of property. ■ Ships and vessels are personal property. But, as we have already stated, title to them should be acquired by bill of sale. This is the only mode of transferring title which is recognized by the maritime courts of all nations. A bill of sale must be executed by the owner of the vessel, the master having no authority to sell, except in extreme cases. Upon a sale in port, delivery is necessary. When a vessel is at sea, delivery of the grand bill of sale, as it is called, passes the title, subject only to such lawful conveyance as may be made by the master before notice of the transfer. To give to a ship an American character and protection, it is necessary that it should be registered at the custom house of the district in which the owner lives ; and to entitle it to such registration, the owner, or part owner, must be a citizen of the United States. Upon every change of title a bill of sale is necessary, in order to effect a registry of such sale ; and an unregistered vessel can sail on no voyage with the protection arising out of a national character or national papers. The regulation of the transfer of vessels arises mainly out of national legislation : but the State legislatures have regu- lated the subject in some points. OP THE LAW OF SHIPPING. 899 The purchaser of a vessel, taking title by a bill of sale, while the ship is abroad, must obtain possession within rea- sonable time after her arrival in port, or his title will be sub- ject to be postponed to that of an intervening purchaser without notice, or a subsequent attachment creditor. The owner of a vessel is responsible for all necessaries supplied, and all repairs made upon her, by order of the master, miless there be a special contract with the master by the creditor. He is also liable for such expenses as may be incurred by a consignee, agreeably to the usage of the port in which she is. For example : those of the last sickness and burial of the master, and indeed all contracts made ac- cording to custom, though they may not have been strictly necessary, extending sometimes to an arrangement termed " mate-ship," by which one whaling vessel meeting another forms a partnership in the results of the expedition. Part owners of a ship are not partners, but tenants in com- mon ; and when one of them by appointment has the man- agement of her, he is called the ship's husband. This per- son need not, however, necessarily be one of the owners. A court having maritime powers has authority to permit the majority of the owners of a vessel, to employ her against the will of the rest, upon giving bonds as required by law for her proper security and safe return. A part owner of a vessel, in selling, has only the power of a tenant in common ; and, while he may bind the entire ves- sel for necessaries, he cannot, like a partner, sell the whole, or anything beyond his undivided interest in her. Wliere one part owner makes his several contract, he alone is liable to be sued upon it ; and it is only when necessaries are fur- nished upon the credit of the vessel, that the creditor' has a right to look to all the owners. Part owners have not usually, like partners, a lien upon the common property as between themselves. Vessels may, however, of course, like other property, be owned in partnership, in which case the general laws and principles governing that relation are to be applied. The relation of part ownership, usually, is the title under which the cargo, as well as the vessel, is held. 900 OP THE LAW OF SHIPPING. The mortgagor of a vessel, -while in possession, is regarded as the owner, and may accordingly bind her by all necessary contracts relating to her management and preservation. The same is true of one who hires her. The hiring of a vessel is usually by Charter-Party, and the lessee is called the charterer. A ship is sometimes let, under an arrange- ment by which the rent is to be recovered from the profits of the voyage : whether such an arrangement will render the owner liable as & partner in the expedition, depends upon the terms of the contract ; and, if the owner desires to avoid liability as such partner, he should have his contract drawn with careful reference to that. Neither a part owner, nor a mortgagor, nor a charterer, can bind the vessel or his co- owners by a contract of insurance. The master of a vessel is a person to whom unusual pow- ers are confided. He is clothed, in his general character as such officer, with the power and discretion necessary to enable him to meet all the unforeseen, as well as the usual vicissitudes of the voyage. His authority over the mariners is summary and absolute in all matters relating to the man- agement of the vessel and their duties as seamen. In a storm, he is expected sometimes to give orders requiring des- perate service, and he has a right to require instant obedi- ence. He should be a person of high character as well as of large experience ; and, to go upon long and important voyages, should have a general knowledge of marine law, of the duties of neutrals and the rights of belligerents ;, and, as he is fre- quently charged with sale of the cargo, he should, if in care of a merchantman, be somewhat familiar with the laws of trade and the duties of a merchant. For the protection of seamen, the laws of the United States require the master to enter into a written contract with them. This is done by what are called " shipping articles." (See form No. 8 annexed.) Suitable penalties are imposed upon them for desertion, and summary remedies are provided for the recovery of their wages, and to enable them to quit an unseaworthy ship. OF THE LAW OF SHIPPING. 901 A master has, necessarily, a high and rigorous authority over them, to enable him to enforce discipline, and control and preserve the vessel in all emergencies. As a general rule, he may inflict personal chastisement, or authorize an inferior officer to do it ; and he may also imprison them on board the vessel, in a proper case ; and in case of mutiny may inflict the death penalty, if necessary to enable him to retain control of his vessel and bring her safely to port. For habitual misconduct, such as drunkenness and mutinous con- duct, a master has a right to put a seaman ashore in a foreign country : but he is always responsible in damages, if he pun- ishes immoderately, or imprisons or discharges without cause. He is required by the marine law to receive back a seaman whom he has discharged and who repents and ofiers to return to duty, and the laws of the United States subject a master to penalties if, without justifiable cause, he forces an inferior officer or seaman on shore while abroad and leaves him, or refuses to bring home those whom he took out if they are willing and in proper condition to return. If the seaman be sick on board ship, his medicine and medical advice are at his own expense : but if he be carried ashore, his nursing, diet, and medical advice, are chargeable to the ship, and the claim for such expenses may be enforced in the admiralty courts. In Reed vs. Canfield, 1 Sumner, 195, it was held that a seaman was entitled to be cured, at the expense of the ship, of all sickness and injuries sustained in her service. See also Nevitt vs. Clark, 1 Olcott Adm., 316. As to the wages of seamen, the general rule is, that '^freight is the mother of wages," and if no freight is earned no wages are due. This principle is for the protection of the owner, by mak- ing it for the interest of the seamen, that wages shall be earned by the safe arrival of the vessel. The rule, therefore, applies only in case the voyage is defeated by some natural peril or unavoidable accident, or by some stress of weather, fire, or capture, and not in a case where freight is not earned, by reason of the fraud or misconduct of the master. By act of Congress, a part of the wages is made due at 902 OP THE LAW OF SHIPPING. every port of delivery. The seaman has a lien upon the ship for his wages, which he may enforce in admiralty. This does not depend, like other liens, upon possession, and it takes precedence of all other claims. Where a vessel is employed by a charterer, and upon his failure to pay the seamen their wages, they enforce their lien upon the ship against the owners, they may recover the money paid by them from the charterer. The master of a ship, as well as a part owner, may bind the vessel by contracts relative to her usual employment. He will also be personally bound, unless he is careful to bind the vessel alone. This power of the master does not, how- ever, extend to the vessel when she' is in a home port ; or in any case, except where it is necessary, or is in the usual and customary course of the duty of the master. He may bind the vessel by a Charter Party, (see form No. 4,) may pledge her by " bottomry bond," (see form No. 2,) if necessary to raise money to complete the voyage ; he may also sell a part of the cargo, if absolutely necessary to enable him to carry the residue to its destination. Where several liens or in- cumbrances are created, at different periods of a voyage, and the value of the ship is insufficient to satisfy them all, the common law rule is reversed, and the last has priority, as having been the means of saving the ship. This arises out of the necessity that the master shall always have power to pledge his vessel for his own safety and that of his voyage. The pilot, when on board, has control of the vessel, and a master is discharged from liability for her navigation while he remains in charge. The owner is then responsible for the conduct of the pilot. A hill of lading is the contract for conveyance of the cargo : it is signed by the master, but binds the ship owner. There are usually three copies of it, one of which is for the freighter or consignor, one for the consignee or agent abroad, to whom the cargo is sent, and the third is retained by the master. The bill of lading is made payable to order or assigns ; and, as we have seen, a transfer of it passes the property in the goods. OP THE LAW OF SHIPPING. 903 When a vessel is employed without charter party, and is open to all merchants who choose to send goods by her, she is called a general ship : but the same principles apply to and regulate her employment. Where a return freight is agreed for and is not carried, the same compensation must be paid. This is called dead freight. By the usual terms of a bill of lading, the consignee of goods becomes responsible for the freight : but the liability does not extend to one who purchases from him. G-eneral Average is a contribution made by all the freight- ers on a voyage, to compensate for a loss, sustained by a part, for the benefit of all. As when, in a storm, and to save the vessel, goods are thrown overboard to lighten her. The case should, however, be one of necessity, and the least valuable articles. should be selected. So, it arises when a ves- sel is injured, and goes into port for repair, the wages and provisions of the crew are a subject of general average. It does not exist, however, in any case, except when a part of the property is sacrificed for the benefit of all, nor unless the sacrifice accomplishes the preservation of the rest. Salvage is compensation for preserving or rescuing a cargo from great peril and hazard. The rate is not fixed, but, to the extent of one-half the value of the property, (which it may not exceed,) it varies with the circumstances of each case. It is usually allowed to other than the seamen of the ship saved, except in case of extraordinary danger, and of ef- forts which cannot properly be called for in the due course of the ordinary duties of a seaman. Remedies for the enforcement of marine contracts and ser- vices are usually enforced in a court of Admiralty Jurisdic- tion. They differ materially from those administered at com- mon law, being more simple, cheap, and expeditious. The process is usually in rem ; that is, takes hold of, and acts upon, and binds the thing itself, and enforces judgment upon the claim, by its sale or forfeiture. This remedy is not, however, usually exclusive : but a sea- man may have an action at common law against a master or 904 OP THE LAW OF SHIPPING. an owner, or may proceed in admiralty against the ship, at his election. Bottomry is in the nature of a mortgage of the ship, as will be seen by reference to form No. 2, annexed. This is done when money is hired for the completion of a voyage, and the ship's keel or bottom is pledged as security, and may be, and usually is, at a high rate of interest, which is valid and legal, as the lender takes a risk of the loss of his entire loan. Respondentia is a similar contract for the borrowing of money for the completion of a voyage, to be repaid with a high rate of interest if the voyage terminate safely, and if other- wise, to be wholly lost to the lender. Neither of these contracts are of frequent occurrence. 1. Bill of Lading. Shipped in good order and well conditioned by F. C. on board the ship called the Glen Mary, whereof H. T. is mas- LiTerpooi *^'"j ^^'^ Ijiig in the port of New London and bound England, for Livcrpool, England. 1-240 lbs! Ten ("10) Pkgs. Mdse. marked and numbered as 2 31 Q It V -^ tJ 8—285 " in the margin, and are to be delivered in the like or- A 228 " o 7 5-|i6 ;; der and condition at said port of Liverpool, England, 8Z272 " ^^ dangers of the seas only excepted, unto E. P. or 10-ii " ^^^^ assigns, he or they paying freight for the said ^mm ' packages the sum of dollars with cents pri- I mage and average accustomed. In witness whereof, the master or purser of said vessel hath affirmed to two bills of lading both of this tenor and date, one of which being accomplished the other to stand void. Dated at , , the day of , A. D. 18 . H. T. Master. op the law op shipping. 905 2. Bottomry Bond. Know all men by these presents, that I, A. B., now master and commander of the vessel called the , of the bur- den of about tons, now lying at the port of , am held and firmly bound unto C. D. of , in the sum of dollars, money of the United States, to be paid to the said C. D. or to his certain attorney or assigns, for which pay- ment I bind myself, my heirs and personal representatives, and also the said vessel, her tackle, apparel, and furniture, firmly by these presents. Sealed with my seal at , this day of , A. D. 18 . Whereas the above bounden A. B. has been obliged to take up and borrow, and has received of the said C. D. for the use of the said vessel and for the purpose of fitting the same for sea, the sum of two thousand dollars money of the Uni- ted States, which sum is to be and remain as a lien and bot- tomry on the said vessel, her tackle, apparel, and furniture, at the rate or premium of thirty per cent, for the voyage, in consideration whereof all the risks of the seas, rivers, ene- mies, fires, pirates, &c. are to be on account of the said C. D. And for the better security of the said sum and premium, the said master doth by these presents hypothecate and assign over to the said CD., his heirs, personal representatives, and assigns, the said vessel, her tackle, apparel, and furniture. And it is hereby declared that the said vessel , is thus hypothecated and assigned over, for the security of the money so borrowed and taken up as aforesaid, and shall be delivered for no other use or purpose whatever until this bond is first paid, together with the premium hereby agreed to be paid thereon. Now, the condition of this obligation is such, that if the above bounden A. B. shall well and truly pay or cause to be paid unto the said C. D., his certain attorney or assigns, the just and full sum of two thousand dollars, money of the Uni- ted States as aforesaid, being the sum borrowed, and also the 906 OP THE LAW OF SHIPPING. premium as aforesaid, at or before the expiration of ten days after the arrival of the said vessel at the port of , then this obligation and the said hypothecation to be void and of no effect, otherwise to remain in full force and virtue. A. B. [L. S.J Sealed and delivered, in presence of 3. Shipping Articles in use in New York. United States op America. Between the master and seamen or mariners of the , of , whereof is at present master, or whoever shall go for master, now bound from the port of New York to ; It is hereby expressly agreed, that if said ship while on said voyage be seized, detained, or fined, for smuggling to- bacco or any other article by one or more of the undersigned sailors, cooks, or stewai'ds, they shall all be responsible for the damage thence resulting, and shall severally forfeit their war ges and all their goods and chattels on board, to the amount of such damage ; and that the certificate of the person or persons who may seize, detain or fine said ship, for smug- gling, signed by him or them and verified by the American Consul at , under his seal of office, shall be conclu- sive evidence of the facts therein stated, in all courts whatso- ever ; especially, as to the fact that smuggling had been com- mitted, the individual or individuals by whom the same had been committed, the amount of the fine imposed therefor upon the said ship, the incidental expenses thereon, and the number of days the said ship was detained in consequence thereof. No grog allowed, and none to be put on board by the crew, and no profane language allowed, nor any sheath knives permitted to be brought or used on board. That in consideration of the monthly or other wages set against each seaman or mariner's name, they severally will perform the above mentioned voyage. And the said master doth agree with and hire the said seamen and mariners for OP THE LAW OP SHIPPING. 907 said voyages, at such monthly wages or prices, to be paid pursuant to this agreement and the laws of the Congress of tlie United States of America. And the said seamen or mariners severally hereby promise and oblige themselves, to do their duty and obey the lawful commands of their officers on board the said vessel or the boats thereunto be- longing as good and faithful seamen or mariners ; and at all places where the said vessel shall put in, or anchor at, during the said voyage, to do their best endeavors for the preservation of the said vessel and cargo ; and not to neglect or refuse doing tlieir duty by day or night ; nor shall go out of the said vessel on board any other vessel, or be on shore, under any pretence whatsoever until the aforesaid voyage be ended and the said vessel be discharged of her loading, without leave first obtained of the captain or commanding officer on board ; that in default thereof he or they will be liable to all the penalties and forfeitures mentioned in the Marine Law, enacted for the government and regulation of seamen in the merchants' service, in which it is enacted, " That if any seaman or mariner shall absent himself from on board the ship or vessel, without leave of the master or officer commanding on board, and the mate or other officer having in charge the log-book shall make an entry therein of the name of such seaman or mariner, on the day on which he shall so absent himself; and if such seaman or mariner shall return to his duty within forty-eight hours, such seaman or mariner shall forfeit three days' pay for every day which he shall so absent himself, to be deducted out of his wages : but if any seaman or mariner shall absent himself for more than forty-eight hours at one time, he shall forfeit all wages due to him, and all his goods and chattels which were on board the said ship or vessel, or in any store where they may have been lodged, at the time of his desertion, to the use of the owner or owners of the said ship or vessel ; and, more- over, shall be liable to pay him or them all damages which he or they may sustain, by being obliged to hire other sea- men or mariners in his or their place. 908 OP THE LAW OP SHIPPING. And it is further agreed, tliat in case of desertion, death, or imprisonment, the wages are to cease. And it is further agreed by both parties, that each and every lawful command, which the said master or other officer shall think necessary hereafter to issue, for the effectual gov- ernment of the said vessel, or suppressing immoralitjs and vice, shall be strictly complied with, under the penalty of the per- son disobeying forfeiting his whole wages or hire, together with everything belonging to him on board the said vessel. And it is further agreed that no officer or seaman belong- ing to the said vessel shall demand or be entitled to his wages or any part thereof, until the arrival of said vessel at her final port of discharge, and delivery of her cargo. And it is hereby further agreed between the master, offi- cers, and seamen of the said vessel, that whatever apparel, furniture or stores, each of them may receive into their charge, belonging to the said vessel, shall be accounted for on her return ; and in case anything shall be lost or damaged through their carelessness and inefficiency, it shall be made good by such officer or seaman by whose means it may hap- pen, to the master and owners of the said vessel. And whereas, it it customary for the officers and seamen, while the vessel is in port or while the cargo is delivering, to go on shore at night to sleep, greatly to the prejudice of such vessel and freighters : be it fui-ther agreed by said parties, that neither officer or seaman shall, on any pretence what- ever, be entitled to such indulgence, but shall do their dvity by day in discharge of the cargo, and keep such watch by night as the master shall think necessary to order relative to said vessel or cargo. And whereas it frequently happens, that tlie owner or captain incurs expenses while in a foreign port, relative to the imprisonment of one or more of his officers or crew, or in the attendance of nurses, or in the payment of board on shore for the benefit of such person or persons : now it is understood and agreed by the parties hereto, that all such expenses as may be incurred, by reason of the fore- going premises, shall be charged to and deducted out of the OF THE LAW OP SHIPPING. 909 wages of any officer, or such one of the crew, by whose means or for whose bpnefit the same shall have been paid. And whereas it often happens that part of the cargo is em- bezzled after being safely delivered into lighters, and as such losses are made good by the owners of the vessel : be it there- fore agreed by these presents, that whatever officer or seamen the master shall think proper to appoint, shall take charge of her cargo in the lighters, and go with it to the lawful quay, and there deliver his charge to the vessel's husband or his representative, to see the same safely landed. That each seaman or mariner who shall faithfully perform the above mentioned voyage, (provided always that there be no desertion, plunderage, embezzlement, or other unlawful acts committed on the said vessel's cargo or stores,) shall be entitled to the payment of the wages or hire that may be- come due to him pursuant to this agreement, as to his name is affixed and set forth. Provided nevertheless, that if any of said crew disobey the orders of the said master or other officer of the said vessel, or absent himself at any time with- out liberty, his wages due at the time of such disobedience or absence shall be forfeited ; and in case such person so forfeit- ing wages shall be reinstated or permitted to do further duty, it shall not do away such forfeiture, — it being understood and agreed by said parties, that parol proof of the misconduct, absence or desertion, of any officer, or any of the crew of said vessel, may be given in evidence at any trial between the parties to this contract, any act, law, or usage, to the con- trary thereof notwithstanding. In testimony whereof, and for the due performance of each and every of the above-mentioned articles and agreements, and acknowledgment of their being voluntarily, and without compulsion or any other clandestine means being used, agreed to and signed by us, we have each of us hereto affixed our hands, the month and day against our names hereunder written. And it is hereby understood and mutually agreed, by and between the parties aforesaid, that they will render themselves 910 OP THE LAW GF SHIPPING. on board the said vessel on or before , the day of ) 18 , at o'clock in the noon. This is signed by all the officers and crew, under seventeen columns which give the following particulars : Date of entiy, name, station, birthplace, age, height in feet and inches, wages per month, advance wages, advance abroad, hospital money, time of service in months and days, whole wages, wages due, sureties, witness. On the back of this instrument are copious extracts from the laws of the United States for the government of seamen, &c., and then follows a receipt in full in the following words : It should be, remarked, how- ever that the sailor's discharge of all demands for assault and battery or imprisonment, &c., is of little, if any, legal force. We the undersigned, late mariners on board the on her late voyage described on the other side of this instru- ment and now performed to this place of payment, hereby ac- knowledge to have received from , agent or owner of said , the full sum hereunder set against our names ; in full for wages for our service, and all demands for assault and battery or imprisonment, of whatever nature, against said , her owners or officers, to the date also set against our names. 4. Charter Party. This Charter Party, made and concluded upon in , the day of , A. D. 18 , between of the of , of the burden of tons or thereabouts, register measurement, now lying in the harbor of , of the first part, and of the second part, witnesseth : That said party of the first part, in consideration of the agreements hereinafter mentioned, to be performed by said party of the second part, doth covenant and agree on the freighting and chartering of said vessel to said party of the second part, for the voyage from the port of , on the terms following, that is to say : — OP THE LAW OP SHIPPING. 911 First. The Said party of the first part engages, that the said vessel during said voyage shall be kept tight, staunch, well-fitted, tackled, and provided with every requisite, and with men and provisions necessary for such a voyage. Second. The said party of the first part further engages, that the whole of said vessel (with the exception of the cabin, the deck, and the necessary room for the accommodation of the crew, and of the sails, cables, and provisions,) shall be at the sole use and disposal of the said party of the second part, during the voyage aforesaid ; and that no goods or mer- chandise shall be laden on board otherwise than from said party of the second part or his agent, without his consent, on pain of forfeiture of the amount of freight agreed upon for the same. Third. The said party of the first part further engages, t-o take and receive on board said vessel, during the aforesaid voyage, all such lawful goods and merchandise as said party of the second part or his agents may think proper to ship. And said party of the second part, in consideration of the agreements to be performed by said party of the first part, covenants and agrees with said party of the first part, to charter and hire said vessel as aforesaid, in the manner fol- lowing, that is to say : — First. Said party of the second part engages to provide and furnish to said vessel. Second. Said party of the second part further engages to pay to said party of the first part or his agent, for the charter or the freight of said vessel during the voyage aforesaid, in the manner following, that is to say : — It is further agreed between the parties to this instrument, that said party of the second part shall be allowed, for the loading and discharging of the vessel at the respective ports aforesaid, lay days as follows : — And in case the vessel is longer detained, said party of the second part agrees to pay to said party of the first part de- murrage, at the rate of dollars in American cui-rency of gold, per day, for each day so detained ; provided that such 912 .OF THE LAW OF SHIPPING. detention shall happen by default of said party of the second part or his agent. It is further agreed, that the cargo shall be received and delivered alongside within reach of the vessel's tackles. It is also further agreed, that this charter shall commence when the vessel is ready to receive cargo at her place of load- ing, and notice thereof is given to the party of the second part or to his agent. To the faithful performance of all the foregoing covenants and agreements, the said parties, each to the other, do hereby bind themselves and their assigns, and also the said vessel, freight, tackle, and appurtenances, and the merchandise to be laden on board, in the penal sum of In witness whereof, the said parties have hereunto inter- changeably set their hands and seals, this day of , 18 . Sealed and delivered [l. s.] ,in presence of [l. s.] 5. Bill of Sale of a Registered Vessel. To all to whom these presents shall come, greeting : Know ye, that I, (or we,) (names and residences of the owners or sellers,) of the vessel called the , of the bm-den of tons or thereabouts, in consideration of the sum of dollars to me in hand paid before the delivery of these presents, by (name and residence of the buyer,') the re- ceipt whereof I hereby acknowledge, have sold unto the said and his assigns, the said vfissel, together with the mast, bowsprit, sails, boats, anchors, cables, and all other necessaries thereto appertaining and belonging. The certifi- cate of the registry of which said vessel is as follows, to wit : No. . In pursuance of an Act of the Congress of the United States of America, entitled " An Act concerning the Registering and Recording of Ships and Vessels," having taken or subscribed the required by the said act, and Inaving that owner of the ship or OP THE LAW OP SHIPPING. 913 vessel called the of , whereof is at present master, and is a citizen of the United States, and that the said ship or vessel was . And haraig certified that the said ship or vessel has deck and mast, and that her length is , her breadth , her depth , and that she measures tons ; and that she is , has and head. And the said having agreed to the description and admeasurement above specified, and sufficient security hav- ing been given according to the said Act, the said has been duly registered at the port of Given under my hand and seal at the port of , this day of , A. D. 18 . A. B., Collector of To have and to hold the said and appurtenances thereto belonging, to the said and his assigns, to the sole and only proper use of the said and his as- signs forever. And I, the said , do by these presents agree with the said and his assigns, to warrant and de- fend the said and all the before-mentioned appurten- ances, against all and every person and persons. In testimony whereof, I have hereto set my hand and seal, this day of , A. D. 18 . C. D. [l. S.J Sealed and delivered in presence of 58 APPENDIX. EIGHTS OF MARRIED WOMEN, AS SECURED BY STATUTES IN ALL THE STATES. Alabama. The husband is not liable for the debts of the wife before marriage ; she may be sued alone, and her separate estate is liable on execution. All the wife's prop- erty is secured to her separate use, and is not liable for the debts of the husband. He is a trustee for the wife, and enjoys the profits of her estate, but they are not liable for his debts. They must join in the conveyance of her estate. The pro- ceeds of such sale is the separate estate of the wife, and may be invested for her in other property. Her estate is liable for the support of the family, and the court may, upon proper case made, order the sale of her property on a judgment against the husband. Married women may dispose of their property by will. The wife dying intestate, her' husband takes half her personalty absolutely and the use of the realty during life. The wife is excluded from dower, if, upon his death, her separate estate is equal to or greater than the dower interest. The husband may be removed as trustee, on bill of chancery for certain causes ; the wife then acts as a femme sole. Arkansas. Any married woman may become possessed of property by bequest, devise, gift, or distribution in her own right and name, (provided the same does not come from the husband after coverture,) the deed, bequest, grant, &c., of such property must set forth that the same is to be held, &c., exempt from the husband's con- trol, &c., and be exclusively her property and not then liable for his debts. A married woman cannot be an executrix, nor can she make a will unless author- ized by a marriage settlement contract, or by written consent of her husband. She can be admitted by the court to defend without the husband. In an action for personal injuries, she may be admitted as a witness in her own behalf. (1863.) California. A married woman may dispose of her separate property by will without con- sent of the husband. (Statutes 1866.) She may insure the life of her husband. 916 EIGHTS OF MARRIED WOMEN. the premium not to exceed $500. She cannot he an administratix. She may make power of attorney for the sale of her estate, but her husband must join in the execution of it. ' AH property, real and personal, owned by the wife before marriage, aifd that acquired afterwards by gift, bequest, devise, or descent, is her separate property. All property acquired after marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, is common property. An in- ventory of the wife's separate property, acknowledged or proved, and recorded like a deed of real estate, is notice of the wife's title ; and all property of which an inventory is so recorded is exempt from seizure for the debts of the husband. The husband has the management and control of the wife's separate property during marriage, but no sale can be made, nor lien nor incumbrance thereon cre- ated, unless she joins in the deed and acknowledges upon separate examination. When the wife sells her separate property for his benefit, or her husband uses the proceeds with her ivritten consent, it is deemed a gift, and neither she, nor those claiming under her, may recover as against pai-ties acquiring adverse claims. If the husband wastes or mismanages the property, she may have a trustee appointed. The husband has entire management and control of the common property with the absolute power of disposition as of his own separate estate during the marriage. Neither curtesy nor dower are allowed. Upon the death of either party, one-half of the common property goes to the survivor, and the other half to the descendants of the deceased party, subject to debts of the deceased. In case of divorce the common property is to be divided equally between the parties. The separate property of the husband is not liable for the wife's ante-nuptial debts. The rights- of the husband and wife may be controlled by a marriage contract containing stipulations contrary to the preceding pro- vision, but such contract must be duly recorded. In any matter concerning her separate property she may sue alone, and she may carry on business in her own name and on her own account by complying with certain regulations. The hus- band in such cases is not responsible for her business debts, unless contracted with his written consent. A married woman of legal age may convey real estate as if she was single, provided her husband has been absent one year. Connecticut. The husband's interest in the wife's real estate cannot be taken for his liabili- ties. Land purchased with the proceeds of her personal services during mairiage vests in her to her sole use. The proceeds of sales of real estate, invested in her name, are protected for her separate use. The courts of probate may order sale of the land of a minor married woman, in certain cases, and in such case her deed is good. A woman, abandoned by her husband for three years, may be empowered by the Superiot Court to execute conveyances of her real estate. The personal property of a wife vests in her husband as trustee ; and upon his decease, if undisposed of otherwise, revests in the wife; or in her representatives if she be dead. The husband is entitled to the rents and pijpfits of her real es- tate, but they are not liable for his separate debts. A sale of her property with- out her consent, is not valid. Upon being abandoned by him, all her property vests in her as her sole estate ; she may transact business in her own name, and sue and be sued alone. She may insure his life, or he may to her use, the pre- RIGHTS OF MARRIED WOMEN. 91T mium not to exceed S150, unless paid from her private property. Pnymcnts made to a married woman of delits dne her arc valid. The husband is not liable for the wife's debts contracted before marriage, but she may be sued as a single woman therefor. She may make a will ; may be a competent witness for her husband in criminal cases, as he may be for her. (Gen'l St. 1866.) When a mai'ried woman has derived estate from her husband, in consideration of mar- riage or affection, such estate reverts to the husband upon a divorce for her mis- conduct. Delaware. Real estate, mortgages, stocks, and silver ware, belonging to the wife before marriage, or falling to her during coverture, are her separate property not sub- ject to the disposal of the husband, nor liable for his debts or contracts, except on judgments recovered against him for her liabilities before marriage : but the wife cannot dispose of such property, except with her husband's written consent under seal. With the consent of the husband she may invest the proceeds of a sale of her estate in her own name as her sole property, subject to the preceding provisions. (Statutes, 1865.) If the husb.md make his will before marriage, his widow takes the same share as if he died intestate. Insurance on his life for her benefit is secured to her, if the premium does not exceed $150. If the husband abandon her, the court may provide for the support of herself and her children out of his property. She cannot make a valid power of attorney. Florida. The property owned by a wife before marriage, or acquired afterwards, vests in her, separately and independent of the control of the husband, and is not liable for his debts. He is, however, trustee for its cai'e and management. She cannot sue him for rent nor can he sue her to obtain its management. Her property alone is chargeable with her ante-nuptial debts. She may make a will, but if she dies intestate, he takes the same interest in her estate as a child, and if she leaves no child, the whole. Georgia. All the wife's property, whether acquired before or after marriage, is held as her separate estate, and is not liable for the debts of the husband. A married woman is authorized to deposit in a savings bank to any amount, less than 82,000, the proceeds of her own and her children's labor, and she may control such deposit as if unmarried. (Acts, 1866.) She may be appointed guardian of the property of a lunatic husband ; and the bond given by her in such case is valid in law. Each is the sole heir of the other, dying intestate. Illinois. When property, real or personal, is held by a trustee for the sole use of a mar. ried woman, and the trustee dies, she may be appointed in his stead, and may hold and convey in her own name, and the property is not liable for her hus- band's debts. (Kev. Statutes, 1858. ) All property owned by a married woman 918 EIGHTS OF MARRIED WOMEN. before marriage, and that acquired by her thereaJFter, is her sole and separate property ; is not subject to his control nor liable for his debts. (Acts 1861.) Married women living separate from their husbands without fault of the wife, have remedy in equity, in their own names, for reasonable maintenance and sup- port, and the court may grant allowance to enable the wife to prosecute her suit. (1867.) She may insure the life of her husband. When the husband is insane the wife may join with conservator in a deed and relinquish dower and home- stead of his estate ; she may also convey her own estate by a deed in which her husband joins, and the proceeds vest in her as her sole property. Indiana. The joint deed of husband and wife passes her land, but does not bind the wife by its covenants. The husband is liable for the ante-nuptial debts of the wife to the extent of her personal property. The death of the wife does not ex- tinguish his liability. The land of the wife is not liable for the husband's debts, but is her separate estate. She may not, however, encumber or convey it except by deed in which the husband joins. His separate deed conveys no interest in her lands. Suits relative to such lands must be prosecuted by or against the husband and wife jointly, or if they be separated, in the name of the wife alone, in which case the husband is not liable for costs. A general power may be given a married woman to dispose of or convey, without the concurrence of her husband, land conveyed or devised to her in fee. She may defend in her own right an action relating to her separate property, and in her husband's, if he neglect. She may make a will, but the will of an unmarried woman is re%-oked by marriage. On abandonment or neglect of the husband to support the wife, the Circuit Court may authorize her to convey real or personal estate, within the State, and which has come to him by the marriage. She may claim her property in the hands of third parties ; make contracts under seal, execute deeds, prosecute and defend in her own name ; in case of attachment against his prop- erty, while he is absent, she may exercise all his rights. Absence of ten years creates a presumption of death, and she then has rights of a. femme sole. (1859.) A married woman under twenty-one years of age may join with her husband in the conveyance of liis real estate. (1865.) Iowa. The wife's personal property does not immediately vest in the husband, but, if it be under his control and be by him conveyed to third parties acting in good faith and without knowledge of the true ownership, it will be presumed to have been transferred to him. But by filing a proper record stating the amount of her property, and her claim thereupon, she may prevent such presumption of transfer. In case of his death or insolvency, she becomes a prefei'red creditor to the amount of the value of her property sold by her husband, without interest. She must make proof of her ownership, but after five years the notice is pre- sumptive evidence. Her separate property and rents and incomes therefrom, are not liable for his debts ; and he is not liable for contracts as to her separate estate, or purporting to bind her alone. The general family expenses, educa- tion of the children, &e., are chargeable upon the property of either or both ; a suit may be brought against them jointly, or against the husband separately. RIGHTS OF MARRIED WOMEN. 919 If the husband abandons her, she may be authorized to act, as if single, and may convey a, portion of his property and collect debts due him ; if she abandons him, he has like power over her property. No sale of the homestead c:in be made except by mutual consent. The husband has the same rights of dower as the wife, the estate by curtesy being abolished. The property of either, or of both, is liable upon execution issued under judgment against both. If they are sued jointly, each may defend the others right, and for both. The husband m.iy convey property to the wife without the intervention of a trustee, and she may dispose of her real estate ; and may be appointed executrix. Kansas. All the property which a woman owns at the time of her marriage, and the rents, profits, and proceeds thereof, and any which may come to her by descent, devise, or bequest, or the gift of any person except her husband, is her separate property, not subject to the disposal, nor liable for the debts of the husband. She may sell and convey her property and contract in reference thereto, to the same extent and with hke effect as a married man may in relation to his prop- erty. She may sue and be sued ; may alone carry on trade, perform any labor or services, on her sole and separate account ; and her earnings are her separate property, and may be used and inv&ted in her own name. (Act of 1868.) If the husband and wife be sued together, she may defend for herself, and if her husband neglect, she may defend for him also. Neither, while married, can bequeath away from the other more than one-half of his or her property with- out the written consent of the other, executed in the presence of two witnesses. Kentucky. The husband is entitled to the use only of the wife's real estate and chattels, with power to lease her real estate for periods of three years at a time. Her ante-nuptial debts are chargeable upon such estate ; and so also are necessaries for the family. The proceeds of her chattels real go to the husband, unless otherwise agreed. If the husband abandons her, or becomes imprisoned, &c., she may be empowered to act as afemme sole ; so if he be a non-resident, she may be thus empowered. She may convey her real estate either by joint or separate deed, and has the entire control and disposal of stock held for her separate use. She may dispose of her separate property by will, or execute a power. The con- sent of the husband must be had to aliene real or personal estate, conveyed or devised to her, except as a gift. She may deposit in a bank and check as if sofe ; but the usual law of notice prevails as to the rights of third parties. She may be empowered, upon their joint application, to sell and convey any property owned' or acquired by her ; may have the rights of afemme sole trader, and may sell or devise her property, which is to be held free from his debts and chargeable only with her debts. Louisiana. The dowry is given to the husband to enjoy during marriage ; dowry is de- fined to be the effects brought by the wife to support the expenses of marriage, its proceeds belong to the husband ; he alone has its administration, of which his wife cannot deprive him. In case of his neglect to sue for the total effects of 920 EIGHTS OP MARHIED WOMEN. the wife, she may sue for them herself, upon being authorized by the proper judge. All property which is not declared to be brought in marriage by the wife, or given her in consideration of marriage, or belongs to her at the time of marriage, is paraphernal ; this property she may administer in her own right ; she may alienate it, with the authorization of the husband, or of the judge in case of his refusal or absence. She has a right of action against her husband for the restitution of paraphernal effects. Their several debts before marriage must be paid out of their personal effects ; debts during marriage, out of the common funds. Their " community of gain'" is divided into two equal portions between the husband and wife or between their kin at the dissolution of marriage. She may petition for separation of property during marriage. The wife cannot appear in court without her husband's assent, although she be a public merchant or possess property separate. She cannot alienate, grant, or acquire, either by gratuitous or incumbered title, unless he concurs, or con- sents in writing. A wife, separated from bed and board, needs no authorization. If the husband is under interdiction or absent, the judge may authorize her to sue or be sued, or to make contracts. She may make a will without his authority. They cannot testify against each other. Under certain circumstances, she may be authorized to contract debts and give mortgages. Maine. A married woman of any age may acquire and dispose of property ; but real estate directly or indirectly coming from the husband, cannot be conveyed by her without his joining. A woman does not lose, and her husband does not ac- quire, rights to her property by marriage. She may release to him the control of her property. She may sue and defend as a femme sde, or jointly with him. She may receive her own wages, maintain action therefor,' and hold the same against him or any other person. The wife dying intestate, her prop- erty descends to her heirs. When the husband abandons the wife, or is confined in prison, the court may authorize her to make contracts and to receive her per- sonal property. Her contracts then bind herself and husband, she may sue and be sued, and execution may be enforced against her, as if unmarried. A wife coming from another State without her husband, and remaining in the State, has the power of a neglected wife. The husband has right of dower in her personal estate. The contracts of any married woman may be valid and bind- ing, and her separate property shall be liable for breach of contract ; but she shall be exempted from arrest Maryland. All property o^vned by a woman at the time of her marriage or acquired there- after, is protected from the debts of the husband, excepting property corainn- to her from him, a^ter coverture, the same being conveyed to her in prejudice of the rights of his creditors. The wife holds for her separate use all such prop- erty, and may devise the same, like an unmarried woman, or she mav convey the same by joint deed with the husband. It is not necessary for her to have a trustee. She may sue in all courts by her next friend for the recovery or security of her property. She is entitled to dower in lands of her husband. The pi-o- cceds of the labor of the wife to the value of $1,000 over and above her debts are secured to her. She may insure the life of her husband. The receipt of the EIGHTS OP MARRIED WOMEN. 921 wife for a deposit shall be valid, yet creditors of the husband may attach it. She must join her husband in conveyance of her property, and may relinquish her dower by joint or separate deed. The husband must consent in writing to her will. Massachusetts. A married woman may hold property to her separate use ; she may invest the rents, profits, &c., thereof, her earnings, and whatever she has received for release of dower ; and said property, rents, profits, &c., is not subject to the hus- band's interference or control, nor liable for his debts. She may convey her property, make contracts, sue and be sued as to her separate property and busi- ness, may carry on any trade or business, as if she were unmarried. But the husband must join her in real estate and certain otlier conveyances. A trustee may be appointed, on her petition, to take charge of her separate estate. The husband is not liable upon contracts of wife doing business on her separate ac- count, after filing a certificate with town clerk, setting forth her name, business, &c. She must also file such a certificate to secure her property against his cred- itors. (Act 1864.) The wife may be sued and her separate property attached for ante-nuptial debts; the husband is not liable for such debts after 1855. She may make a will of her property, but cannot deprive her husband of more than half her personal property without his written consent. A guardian may be appointed for an insane married woman having right of dower. A mar- ried woman whose husband has abandoned her or been sent to prison, may bo authorized to convey property, to make contracts, and to sue and be sued. (Gen. Stat, 1860.) Michigan. The real and personal estate of married women acquired before marriage, and all property acquired after maiTiage by gift, grant, inheritance, or devise, is her separate property, not liable for the husband's debts ; and may be dcvisnl by her as if unmarried. When the husband is imprisoned, or if he abandons her, the wife, if of age, may be authorized to dispose of her own, real estate, and her hus- band's personal estate. Proceeds of such sales may be disposed of by the wife as if unmarried. She may also be authorized to make contracts, sue and be sued &c The powers so granted last until the husband's return. All her con- tract's then are binding upon him also. . The husband is not liable on contracts of the wife in relation to her sole property, and she may be sued on such con- tracts as if she were unmarried. She may insure the life of her husband the premium not to exceed $300 ; the proceeds inure to her benefit and are not lia- ble for his debts. Minnesota. i All the property of a married woman, owned at the time of her marriage, or which comes to her by descent after mamage, shall be her separate property, not liable for the husband's debts ; but shall not be disposed of by her without his consent, unless such right is reserved to her by ante-nuptial contract. A sched- ule of her proprty must be recorded in the office of the registry of deeds. Con- 922 RIGHTS OP MARRIED WOMEN. veyances, devises, and bequests may be made to any married woman to be held, without the intervention of « trustee, to her separate use, free from her hus- band's control, and containing a power of disposition by will, deed, or otherwise : every such conveyance must be registered. She is entitled to the interests, prof- its and rents of such separate estate, and may have rights, powers, and remedies in her own name, and be subject to the same obligations as an unmarried woman. The personal property of an intestate wife vests in the husband, and he is enti- tled to his estate by the curtesy in all lands of the wife, provided he take admin- istration upon her estate. When a husband abandons the wife or neglects to provide for her, she may, upon petition, be licensed to engage in business, &c., make contracts as if she were sole, and her stock in trade and profits shall be free from his control, interference, and debts. The wages of a married woman are secured to her. The law of 1869 exempts the husband from any UabUity for the debts of the wife, but leaves him hable for her torts. Mississippi. AH property belonging to a married woman before marriage or acquired after- wards, is her separate property ; is not liable for the debts of the husband, nor can he seU, mortgage, or transfer it unless the wife join in the conveyance and acknowledge separately. All her rents and profits inure to her separate use ; and she may purchase property with her own money, and may take conveyance in her own name. If the husband purchase property in his own name, but with her money, he holds such property as trustee for her. She may rent her lands : all contracts made by her, or the husband with her consent, for family supplies or necessaries, wearing apparel of herself and children, or for their education, for furniture, for buildings on her land, for materials or for work and labor done for her separate estate, are binding on her, and are to be satisfied out of her separate estate ; the husband is not liable for her ante-marriage debts, if she have separate estate. They may sue jointly, or if the husband declines she may sue alone for the recovery of her property or rights. The husband is entitled to curtesy upon her decease. If her separate property equal his at his death, and if he has made a will, she may not elect to take her dower in lieu of the provision made for her in such will. (Rev. St. 1857.) She may dispose of her property by will, without his consent. If he converts her separate property to his own use he is liable to her for its value : all property purchased by her money, the title being taken in his name, belongs to her, and he is chargeable as trustee. If she consent to his using her income for the family, it is not a charge upon him. (Acts 1867.) Missouri. When the wife is abandoned by the husband, the Circuit Court may order maintenance out of his property and compel him to secure it, or may authorize her to sell her real estate and any personal estate coming to the husband by rea- son of man'iage ; and may authorize debtors of the husband to pay to the wife. A vrite is entitled to the proceeds of her own earnings. If the husband be im- prisoned the ivife is to be treated as a single woman, to sue and be sued, transact business, &c. A wife having real estate in her own right, may petition the court to hold it for her sole use and benefit, when the husband's criminal conduct causes her to separate from him. She may will her lands and tenements subject to cur- BIGHTS OP MARRIED -WOMEN. 923 tesy. The rent, &c., of the real estate of a married woman, and money received from sale of such estate, during marriage, are exempt from attachment for the debts of the husband, and no conveyance of tbcm is valid unless the wife joins. She may insure his life, premium not to be above $300. Stocks and bonds given by a parent to a married daughter belong to her, and ai-e not subject to her husband's debts. (Rev. Stat. 1865.) She may sue and de- fend alone, without the intervention of her "next friend," in an action between husband and wife. (Acts 1868.) Nebraska. A married woman may devise or convey real estate by deed or will, in the same manner as if she were single. She may convey her right of dower by joint deed with her husband, but she is not bound by any covenant in such joint deed. In an action as to her separate property, she may prosecute or defend by her Tiext friend ; in an action between herself and husband she must sue or be sued alone. If they be sued together in any action she may defend in her own right, and if her husband neglects to defend she may defend his right also. They may be witnesses for each other in criminal matters. New Hampshire. The wife holds to her own use, free from the husband's interference or conti'ol, all property earned, acquired or inherited by, bequeathed, given, or conveyed to her, either before or after marriage. If the husband is insane or deserts her, she is entitled to the earnings of her children ; if the husband in such case, leaves property, the Probate Court may order it sold for the maintenance of the family. The husband of a wife dying intestate, or testate but leaving nothing to himi shall have his right to curtesy and such additional share of her estate, as she would receive from his estate in like case, were he dead and she living. The wife of an alien, living separate from her husband, may contract, hold and convey es. tate, as if unmarried, sue and be sued in her own name, and have the guardian- ship of her children. Wife, though not of full age, may join her husband in release of dower. A married woman of full age may give, devise, and dispose of her estate by will, subject to his rights in such estate. Wife holding property may make contracts, and sue and be sued in her own name, in relation thereto. The wife of an insane or imprisoned husband may have her property set off. (Eev. St. 1867.) Nevada. The property owned by the wife before marriage, or acquired by gift, descent or devise afterwards, is her separate estate. Husband's property, in the same ease, to be separate. All property acquired after marriage in any other manner, is com- mon. An inventory of the separate property must be made and recorded. The husband has the management and control of the wife's separate property ; but she must join in any conveyance of the real estate. A trustee may be appointed to manage her property in case of waste or mismanagement of the husband. Hus- band has entire control of the common property. Curtesy and dower are not allowed. At her death the entire common property goes to him : at his death, if she survive, half of the common property goes to her, the other half is subject 924 EIGHTS OP MAERIED WOMEN. to his disposal. The separate property of the wife is alone liable for her debts before marriage. A married woman may make powers of attorney, provided her husband join in the instrument. (Acts 1865.) A wife may transact business in her own name, by complying with certain regulations, and her property, reve- nues, and money so invested belong exclusively to her and are not liable for the husband's debts : she may sue and be sued alone. (1867.) New Jersey. All the property of a married woman owned by her at the time of marriage, or acquired aftenvards by gift, grant, devise or descent, and the rents and profits thereof, are her separate property, not subject to his disposal, nor liable for his debts. She may insure the life of her husband, the premium not to exceed $100. She may wan-ant the title of real estate conveyed by her jointly with her husband. On the death of the wife, the husband is entitled to administer and take all her personal property, and if he die before he has administered, the right goes to his representatives. A married woman cannot bind herself by her agree- ment even with her husband's consent. In respect to her separate estate, she may, as if unmarried, dispose of It according to the terms of the instrument by which she holds it. A husband cannot create a hen on his wife's land. Din^st 1861. The wife of an insane, idiotic, or imprisoned husband has the powers of an unmarried woman. (186-1.) A married woman may bring suit for redress of wrongs, by joining the name of her husband's to her own, even when he does not consent, but with certain provisos. The husband has no control over such suits. Acts 1867. New York. All property owned by a woman at the time of her marriage, and whatever comes to her by gift, devise, and descent, or is acquired by trade, business or service ; and all the rents and profits of such property, are her sole and separate property, not subject to the husband's control nor liable for his separate debts. A married woman may sell and transfer her separate property as if she were unmarried ; may invest her earnings in her own name ; may sue and be sued, in matters relating to her property, as if she were sole ; may bring actions for injuries to her person or character, in her own name. No contract, made by her in respect to her separate property, or entered into in the coarse of trade or busi- ness, is binding upon the husband or renders him or his property liable. Neither shall his property be liable for costs of suits in the wife's name. No man can apprentice his child or part with the control of it, without the written assent of the mother. A married woman may act as executrix, administratrix, and guar- dian of minors. She may will her separate property. The husband and wife, or either of them, may testify for or against the other, or on behalf of any party in certain cases. (Acts 1867.) She may insure the life of her husband, premixim not to exceed $300. She may hold patents for inventions, deposit in savings banks, and vote on stock in any company of which she may be a stockholder. North Carolina. The real estate of the wife cannot be sold or leased without her consent ; and the husband's interest in such estate is exempt from execution. She may insure EIGHTS OP MARRIED WOMEN. 925 his life, and devise the interest. If the annual premium exceeds S300, and is not paid out of her separate estate, or by some friend for her, the sum due on insur- ance, if she survive Mm, is liable for his debts. The estates of females marrying under fifteen, without consent, ai'e secured to them and their issue. A married woman imder a will, deed, settlement, or articles, has power to dispose of her property by will if she is thereby so authorized. Ohio. Real estate acquired before marriage, or during marriage by gift, descent, con- veyance, devise, or by purchase with her own money, is her sole and separate property, subject to her sole eonti'ol. She may lease the same in her own name for a period of not more than three years. (Acts 1866.) Personal property acquired in the same manner is separate property, sub- ject to her sole control and not liable for the husband's debts. Her separate es- tate is liable on any judgment in an action against husband and wife upon any cause existing against her at their marriage, or upon any wrong committed by her during marriage. If the husband desert her, or neglect to provide for the family, she may be vested with the rights and liabilities of a single woman, upon petition to Court of Common Pleas. The husband is not then liable for any of her contracts or torts. She may insure the life of her husband, the premium not to exceed $150, and may make a will. (Rev. Stat. 1860.) Oregon. The property of a married woman is deemed her separate property, and is not liable for the husband's contracts or debts, provided it be duly so recorded. She may exchange one species of property for another, and may seU any part of her separate property and retain the purchase money as her own ; or with it buy other property to be held as her own. She may will her real estate, subject to rights of curtesy. Neither can testify for or against the other except in an action between them. (Gen. Laws 1864.) Pennsylvania. AH property acquired or owned by married women is separate p/operty, not liable for the husband's debts, and not to be sold, transferred or conveyed without their written consent. A husband is not liable for his wife's debts before marriage She may dispose of her property by will. She may loan money and take secu- rities from her husband. In case of the wife's insanity the husband may be em- powered to manage her estate. When the husband neglects or deserts her, she has the rights of a femme sole trader. If the husband neglect to provide for her for a year or more before her death, or wilfully deserts her for that period, he for- feits all rights to his wife's estate. A married woman so deserted, may prosecute in her own name an action for libel ; she may also recover her own earnings. Rhode Island. The real and personal estate of a woman before marriage, and that acquired after marriage by her own industry, or which may become her property, is so far secured to her separate use that the same and the rents, profits, and income 926 RIGHTS OP MARRIED WOMEN. thereof are not liable to attachment for the husband's debts ; and upon the death of the husband, it remains her sole property. In case of sale of such property, proceeds may be invested in name of wife and be held in same manner and with same rights as the property sold. The chattels real, household furniture, plates, jewels, stocks, bank deposits, debts secured by mortgage, which are the property of any woman before marriage, or which may become hers after mar- riage, cannot be sold, leased, or conveyed by the husband, unless by deed, in which the wife joins. Any woman may convey and sell any of her personal property other than that just described in the same manner as if she were single, except that she shall not transact business as a trader. Husband and wife must unite by deed to convey real estate of wife. Any married woman may make a will. South Carolina. A married woman having property in land, or a right of action, may appoint an attorney to bring suit either in her own name or joined with the husband. The husband has no control over such suit, except upon her voluntary consent, given in open court and duly recorded. She may act as sole trader, and as such may sue and be sued. The real and personal property of a woman, acquired either before or after marriage, is her separate property and not liable for the husband's debts ; and may be bequeathed, devised or alienated by her as if she were unmarried. Tennessee, The interest of the husband in the real estate of hia wife, acquired by her either before or after marriage, is not liable for his debts ; nor can the husband sell the real estate of the wife during her life without her joining in the convey- ance in the manner prescribed by law. The proceeds of real or personal prop- erty of a married woman cannot be paid to any person except by her consent. A married woman may by will dispose of any estate secured to her separate use. Property acquired by the wife, subsequent to separation irom her husband, is not subject to his debts, nor can he interfere with or dispose of such property during such separation. When the husband has been adjudged insane, the wife may act as a single woman in purchasing and holding property real and per- sonal, contracting, sueing, &c. ; and such property as she may acquire while BO acting, shall not be taken to satisfy the debts or contracts of the husband. Texas. All property, real and personal, of the wife owned by her before marriage, and that acquired afterward by descent or purchase, as also the increase of all lands thus acquired, is the separate property of the wife, but during the marriage the husband has the sole management of all such property. (Acts 1866.) She may contract debts and incur expenses for the support of herself and for the benefit of her property, without the consent of the husband. The wife's sepa- rate property is not chargeable with the support of the husband, where he is in- solvent and unable to support himself. The husband is entitled to an interest in all the profits of the wife's separate property, " except her land," as com- munity property. He has the control of the payment of community debts. RIGHTS OF MARRIED WOMEN. 927 Vermont. The real estate of any married woman, living apart from her husband by rea- son of his criminal conduct or ill usage, may, upon petition to, and under order of, the Chancellor, be enjoyed by her for her sole use and benefit. (General Stat- utes, 1863.) Married women may devise, by last will and testament, lands, tenements, and hereditaments to their heirs. The rents, issues and products of the real estate of any married woman, and all moneys arising from the sale of such estate, and the interest of the husband in her real estate, is not chargeable for the sole debts of the husband. And no conveyance of such estate of a wife, or rents and profits thereof, by the husband is valid unless the wife join in it as prescribed by law. But the annual products may be attached or levied upon for any debt or liability of the husband, created for necessaries for his wife and family. A married woman may have the life of her husband insured, and the net amount at his death shall be payable to her or her heirs, free from the claims of his representatives or his creditors, but the premium on any such policy of insur- ance shall not exceed $300. All personal property and rights of personal action acquired during coverture, by inheritance or distribution, shall be held to her sole and separate use. (Acts 1867.) A married woman is qualified as a witness in any civil suit or proceeding at law or in equity in the following cases : — first, in actions upon policies of insur- ance of property, second, in actions against carriers, third, in all matters of business transactions had and conducted by the woman as the agent of her husband. Virginia. The husband of an insane wife may, upon an order of tlie Circuit Court, sell real estate and release her right of dower therein. But the court must secure to her the same interest in the proceeds. If the husband die intestate and there be no issue by her, the widow has the personal property which he had fi-om or with her, and which he has not disposed of, if his otlier personal estate suffices to pay his debts. A married woman is incapable of making a will except to dis- pose of her separata estate or in the exercise of a power of appointment. Wisconsin. The personal property and real estate of a married woman, and the rents and profits thereof, are not subject to the disposal of the husband, but are her sole and separate property. (Rev. Stat., 1858.) She may receive, hold, convey, and devise real and personal property, as if she- were unmarried, and her rents and profits shall not be liable for his debts. If the husband neglects or refuses to provide for the support of her children, she may transact business and collect her own earnings and those of her children, free from the interference of the husband. She may insure the life of her husband, the premium not to exceed S300, and the policy shall inure to her benefit. The marriage of a femme solg executrix or administratrix extinguishes her authority. When a husband and wife are impleaded, if the husband absent himself, or will not defend the rights of the wife, if she apply before judgment she may be admitted to defend. 928 HOMESTEAD AND EXEMPTION LAWS. 2. SYNOPSIS OF HOMESTEAD AND OTHER EXEMPTION LAWS OF DIFFEEENT STATES. Alabama. Household and kitchen furniture to the value of $150 ; $50 worth of wearing apparel to each member of the family. AH family portraits, books ; one gun, one loom, two spinning wheels, one saddle, three cows and calves, twenty sheep twenty hogs, one horse or mule, one yoke of oxen, one cart, all poultry ; five hundred pounds meat, one hundred bushels corn ; one thousand pounds fodder, twenty five bushels wheat, one thousand pounds oats in the sheaf, twenty-five bushels sweet potatoes, all the meal on hand, thirty pounds wool, two hundred pounds lint cotton, one hundred pounds ginned cotton, four hundred pounds seed cotton, all cloth on hand, aU tools or implements not to exceed $200 in value, two plows and gear, two hoes. Homestead — three hundred and twenty acres, not to exceed $500 in value, aB burying grounds. To a Mechanic — an additional exemption of $200 worth of stock. To one not OAvner of more than $500 worth of property exempt, one-half of the salary or wages of such a householder not to be less than $25 per month, shall be ex- empt. In addition to the property already exempt, there shall be exempt after Feb- ruary 1867, $1,200 worth of real estate, including the homestead and $1,000 worth of personal property. Arkansas. To a Householder — two horses or mules ; or, one yoke oxen and one horse or mule ; four plows, four hoes, two axes, one wagon, two sets gear, two cows and calves, two spinning wheels and two pair of cai'ds, one loom and apparatus, yarn and cloth for family use, twenty pounds hemp, flax, or cotton for each member o{ the family ; one sewing machine, ten sheep and their wool, ten hogs, all the wearing apparel, two beds and one additional bed for every two children, with the usual bedding and fnrniture, one bureau, one looking glass and table for each room used by the family, the curtains, pitchers, and bowls for such rooms ; one dining table, one cupboard, sufficient table furniture for the family, one dozen chairs, all necessary kitchen furniture and cooking utensils ; fifty bushels com for each horse, mule, or yoke of oxen, ten bushels of com and five bushels of wheat, or one barrel of flour for each member of the family, one hundred and fifty pounds bacon, or 200 pounds pork for each member of the family ; the family library ; one thousand pounds hay or fodder for two horses, all groceries on hand for family use for one year. All books, maps, charts, globes, and professional ap- paratus belonging to teachers and professional men generally. Homestead — of one hundred and sixty acres of land or one town lot, with buildings and improvements thereon. (Eev. Stat. 1867.) HOMESTEAD AND EXEMPTION LAWS. 929 California. Chairs, tables, desks, and books to the value of $100, necessary household, table, and kitchen furniture, and provisions actually provided for one month. Farming utensils, two oxen, or two horses, or two mules, and their harness ; four cows, one cart or wagon, and food for exempt animals for one month ; all seed, grain, and vegetables reserved for planting within six months, to the value of S200. Tools and implements of a mechanic ; implements and library of pro- fessional men. The cabin of a miner to the value of $500 ; also his implements, &c., for mining, to the value of $500 ; and two horses, mules, or oxen, with their har- ness, and food for one month. The horse, vehicle, and harness or other equipments of a physician or minister of the Gospel. / Nearly all public propei-ty is exempt. The earnings of the debtor for thirty days ; one sewing machine. The homestead; to the value of $5,000, provided it be duly recorded. Connecticut. Necessary apparel and bedding, and household furniture, arms, military equip- ments ; implements of trade, one cow, ten sheep, two swine, and two hundred pounds of pork ; twenty-five bushels charcoal, two tons of other coal, two hun- dred pounds wheat flour, two cords wood, two hundred pounds beef, two hundred pounds fish, five bushels of turnips or potatoes, ten bushels of corn or rye ; twenty pounds wool or flax ; one stove and pipe ; the horse, saddle, and bridle of a physician, not exceeding $100 in value ; one sewing machine ; one pew ; the pay and bounty of a soldier. (Rev. St. 1866.) The wages of married men, to the value of $25, unless the debt be for personal board ; and all allowances &om benefit societies. Clergyman's library to value of $500. (1869.) Delaware. No real estate exemption ; only certain household goods of free white citizens, also the library, tools, or implements of the debtor necessary for exercising his profession or trade, provided that all the articles exempted shall not exceed the value of $100, and one cow, one swine, one ton of hay. If the debtor is not in possession of all or any of the exempt articles, other property to that value shall be exempt, except in case of taxes in any county, or the city of Wilmington. The above exemptions do not affect a debt or contract incun-ed or made prior to July 4, 1851, or an execution in Kent county. District of Columbia, AH wearing apparel belonging to all persons and heads of families ; necessary household furniture, not exceeding $300 in value ; provisions for three months' support, whether provided or growing ; fuel for three months ; necessary mechan- ic's tools, &c., to the value of $200 ; $200 worth of stock for carrying on busi- ness of debtor ; library and implements of a professional man, to the value of $300 ; necessary farming utensils not exceeding $200 in value ; all family pic- 59 930 HOMESTEAD AND EXEMPTION LAWS. tures, and family library, not exceeding value of S400 ; one cow ; one swine : six sheep ; one horse, mule, or yoke of oxen, one cart, wagon, or dray. These exemptions are valid when in transitu as when at rest. Florida. Such portion of the property of every actual householder with a family, as may be necessary for the support of himself and family, not exceeding $100 in value. For every farmer, forty acres of land, of which he cultivates ten, pro- vided the property does not exceed $200 in value. Every owner of, and actual resident in, any dwelling house in a city, town, or village, may hold the same exempt, provided that it does not exceed $300 dollars in value. Also the boat and gun of any fisherman, pilot, or resident upon any island or coast, or on any bay, harbor, or inlet of the State ; and the boat and flat of every ferryman, — in either case not exceeding value of $200. G-eorgia. Por every white citizen, the head of a family, fifty acres of land, which, includ- ing dwelling house and improvements, must not exceed $200 in value ; also, five ' additional acres for every child under fifteen years of age. If a city or town lot, not to exceed $200 in value. Military equipments, horses, and wearing apparel of troopers. Also necessary household furniture ; provisions to the value of $30 ; family Bible ; cow and calf, horse or mule, of value of $50, and ten swine. Illinois. The following property, whether at rest or in transitu, is exempt : necessary beds, bedding, cooking utensils, household furniture, to the value of $100 ; two spinning wheels, one loom and appendages, one stove and pipe ; all family pic- tures, family library ; implements of any mechanic, and implements or library of professional men, not exceeding $100 in value ; necessary provision and fuel for three months ; one yoke of oxen or one horse not exceeding in value $100, with the harness therefor ; one plow and harrow ; the lot of ground and the building thereon occupied as a residence of every householder with a family, to the value of $1,000. Indiana. Eeal or personal property to the amount of $300. No waiver of such exemp- tion can be made binding in any form. Iowa. One cow and calf, one horse, fifty sheep, five hogs, necessary food for such an- imals for sixty days ; all flax ; one bedstead and bedding for every two in the family ; household and kitchen furniture, not exceeding $100 in value ; all spin- ning wheels and looms ; and necessary provisions and fuel for six months. To a Printer— press, types, &c., to the value of $1,200. (1866.) Homestead— forty acres of land, (or town lot of one-half an acre,) to the value of $500. HOMESTEAD AND EXEMPTION LAWS. 931 Kansas. All household furniture, family pictures, library, and musical instruments for the use of the family ; bible, church pew, burial lot ; necessary wearing appai-cl of the debtor and family ; stove and appendages ; all cooking and other house- hold furniture, not exceeding $500 in value ; provisions, grains, meat, &c., nec- essary to the support of the family for one year ; necessary tools and imple- ments of a mechanic, and in addition thereto stock to the value of S'SOO ; liljrary, implements and office furniture of a professional man; earnings of the debtor for three months. (Act 1868.) Homestead — 160 acres, or one town lot, owned by any resident who is the head of a family, the value not to exceed $1,000. Kentucky . Household and kitchen furniture, not exceeding in value the sum of SlOO ; one sewing machine ; one horse, tive sheep ; one cooking stcsve and other cook- ing utensils to the value of $25 ; one gun, to the value of S50. Homestead — to the value of $1,000. Louisiana. The linen and clothes of debtor and family ; nor his bed, nor arms and mili- tary accoutrements, nor his tools and instruments necessary in pursuing his avo- cation ; nor husbandry implements and cattle, nor food for the farm, or other supplies for carrying on plantation, can be seized under execution, except the same be on a judgment, obtained with a privilege, for rent. In that case every- thing on the premises may be seized. Maine. Library, not exceeding $150 ; one cow and one heifer, two swine, ten sheep, • thirty hundred weight of hay for cow, two tons for sheep, and sufficient quantity for heifer ; all produce of farms until harvested ; com and grain not exceeding thirty bushels ; all potatoes raised for debtor and his family, one barrel of flour ; twelve cords wood; one plow worth $10, one cart worth not more than $25 ; one harrow, one pair working cattle, or two horses not exceeding in value 5100, and hay for such stock through the winter, harness for each horse, $12 value ; one cooking stove, five tons anthracite coal, five bushels bituminous coal ; one sewing machine not exceeding $100 in value. Homestead— to the value $500, provided a certificate is filed giving notice thereof. Massachusetts. Necessary wearing apparel , one bed and bedding for every two in the family ; one stove and $20 worth of fuel ; other household furniture to the value of $100 ; bible, school books, and library to the value of $50 ; one cow, six sheep, one swine, two tons of hay, tools, implements, and fixtures to the value of $100 ; 932 HOMESTEAD AND EXEMPTION LAWS. also $1 00 worth of stock ; $50 worth of provisions ; one pew ; boat, fishing tackle and nets of fishermen to the value of $100; uniform; one sewing machine, earnings of wife and minor children of the debtor. Homestead — to the value of $800. Maryland. The constitution directs the legislature to pass laws exempting from judicial sales property to the value of $500. Michigan. Household goods, furniture, &c., to the value of $250; tools, stock, &c., nec- essary to trade or business to the amount of $250; library to the value of $150; ten sheep with their fleeces, two cows, five swine ; provisions and fiiel for six months , sufficient hay, grain, feed and roots for six months' keeping of above exempted animals. Homestead — not exceeding forty acres, with dwelling house thereon, &c., to the value of $1,500. Minnesota. Wearing apparel, beds, bedding, household stores, cooking utensils and other household furniture, not exceeding $500 in value, provisions and fuel for one year ; mechanics' tools and implements, with $400 worth of stock ; the library and implements of professional men, family pictures and musical instruments ; three cows, ten swine, one yoke of oxen and one horse ; or instead of one yoke of oxen, a span of horses or mules, twenty sheep with their wool, whether in the raw state or manufactured ; the necessary food for the stock, one wagon, cart, or dray, one sleigh, hvo plows, one dray, and other farming utensils to the value of $300. Homestead — eighty acres of land with the dwelUng house thereon. Mississippi. "Wearing apparel, all household and kitchen fiimitiire; libraries of all per- sons ; tools of a mechanic, $500 worth of material used in business ; implements of a laboVer ; saddles and bridles necessary for family use ; Instruments of sur- geons and dentists ; all globes, pictures and scientific apparatus ; all necessary farming tools, four farm horses or mules ; one year's supply of provisions for the family and the farm hands ; forage for teams and stock, fifty hogs, twenty cattle, twenty sheep, one wagon, and one cart. Homestead— to every head of a family, two hundred and forty acres of land regardless of its value, to include dwelling house and other buildings. $4,000 worth of real and personal property exempt to the resident of a village, town, or city. Missouri. Wearing apparel, necessary tools and implements of a mechanic. To the head of a family, all wearing apparel of family, four beds with bedding, and HOMESTEAD AND EXEMPTION LAWS. 933 other household and kitchen furniture to the value of $100 ; provisions for fam- ily to the value of $100 ; bibles, family books, grave stones ; one pew ; tools and implements of trade ; all arms and military equipments ; ton hogs, ten sheep and their wool, two cows and calves, two plows, one iixc, one hoe, one set plow gears ; all necessary farming implements for one man ; working animals to the value of $150 ; spinning wheels and looms ; twenty-five pounds each of hemp, flax, and wool. Professional men may select such books as may be necessary to their profession, in place of other property herein allowed. Every head of a family may, in place of the cattle, hogs, sheep, &c., of a farmer, select and hold exempt other property, real, personal and mixed, to the value of $300. Homestead — one hundred aud sixty acres of land, to the value of $1,500. In cities of 40,000 inhabitants or over, homestead shall not include more than eighteen square rods of ground, or exceed in value $3,000. In cities of less size, homestead shall not include over thirty square rods, or exceed $1,500 in value. Nevada. Wearing apparel, beds and bedding ; necessary household, table and kitchen furniture ; a sewing machine ; provisions for one month, farming utensils, two horses, or two oxen, or two mules, and their harnesses, two cows, one cart, food for exempt animals for one month ; tools and implements of a mechanic and professional man ; tools and tent of a miner ; chairs, tables, desks, and station- ery to the value of $100 ; arms aud accoutrements, implements and tools of an assayer to the value of $1,000 ; do. of artist, $500. Homestead — not exceeding in value $5000 ; exemption not to extend to a me- chanic's, laborer's or vender's lien or to taxes ; no mortgage on homestead is valid except it have the wife's signature, and be separately acknowledged by her. New Hampshire. Wearing apparel, beds and bedding for debtor and his family ; household fur- niture to the value of $20 ; bibles and school books ; one cow, one ton and a half of hay, one hog, one pig, and pork of same when slaughtered ; tools to the value of $50'; six sheep and their fleeces ; one cooking stove and necessary furniture to same ; provisions and fuel to value of $20 ; uniform, arms and equipments ; one pew ; one burial lot ; one semng machine. Homestead — to the value of $500. New Jersey. Lot and buildings thereon, occupied as a residence by the owner and head of famUy, to the value of $1,000. (Under stringent statutory provisions, which see.) Personal property to the value of $200 besides wearing apparel, also ex- empt. New York. All spinning wheels, weaving looms, and stoves for family use ; a sewing ma- chine, bible, family pictures and school books, and library to the value of $50 ; a pew ; ten .sheep, with their fleeces, a cow, two swine ; all necessary pork, beef, fish, floiir, and vegetables for family use ; fuel for sixty days ; necessary wearing 934 HOMESTEAD AND EXEMPTION LAWS. apparel, beds and bedding ; arms and accoutrements ; necessary cooking utensils, table, six chairs and other kitchen and table furniture ; tools and implements of mechanic to the value of $25. Also other necessary household furniture, work- ing tools, and team owned by a, householder, or professional instruments and library to the value of $250 ; provisions for ninety days. Homestead — to the value of $1,000. North Carolina. All necessary farming and mechanical tools, one work horse, cart or wagon, one cow and calf, fifteen hogs,- five hundred pounds pork or bacon, fifty bushels corn, twenty bushels rice or wheat ; household and kitchen furniture to the value of $200 ; library of professional men, instruments of surgeons and dentists. ifomesfeat/ of one hundred acres in country or one acre in city or town when laid off and registered. Ohio. Weai-ing apparel, beds and bedding necessary for family ; one stove and pipe, fuel for sixty days; one cow, or if the debtor own no cow, household furniture may be selected to the value of $15 ; two swine, or the pork therefrom ; or if he have no swine, then furniture to the value of $6 ; six sheep and the wool there- from ; or in lieu of such sheep, furniture to the value of $10 ; sufficient food for such animals for sixty days. Bible, school books, family pictures; provisions to the amount of $40 ; other household and kitchen furniture not to exceed $30 in value ; tools and imple- ments, whether mechanical or agricultural, not to exceed $50 ; one sewing ma- chine ; the horse and saddle of practicing physicians ; also medicines, instru- ments, and books, not exceeding $50 in value. To a drayman, one horse, har- ness and dray. Homestead. — The homestead not to exceed $500 in value. Or if the debtor have no homestead, then additional personal property to the value of $300 in lieu thereof. Oregon. Books, pictures, and musical instruments to the value of $75 ; wearing ap- parel to the value of $100, and if debtor have a family, clothing for each mem- ber of the family to the value of $50 ; tools, implements, apparatus, team, vehi- cle, harness, or library, necessary to any person to carry on liis trade or profess- ion, to the value of $400 ; also sufficient food to support team sixty days ; a team not to include more than one yoke of oxen, or one pair of horses or mules. The following property, if owned by a householder and in actual use or kept for use, ten sheep with one year's fleece, two cows, five swine ; household goods to the value of $300 ; food sufficient for exempt animals for three months, and provisions for family for six months ; pew in a church ; horses, arms, equipments, and uniforms of all in the enrolled militia of the State ; all public property. HOMESTEAD AND EXEMPTION LAWS. 935 Pennsylvania. Property to the value of $300, exclusive of all wearing apparel of the defend- ant and his family, all bibles and sehool books. The wages of any laborer, or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer. Hhode Island. Necessary wearing apparel of debtor and family ; working tools to the value of S50 ; household furniture and family stores of housekeeper, including beds and bedding, to the value of $200 ; bible and school books ; one cow, one pig, and the pork of same ; uniform, arms, ammunition, and equipments of militia men ; one pew ; one burial lot ; mariner's wages until after terminaticSn of voyage ; debts secured by bills of exchange or negotiable promissory notes. (Revised Statutes, 1867.) Wages to the amount of 825. (1869.) No homestead exemption. South Carolina, Household furniture, beds and bedding, library, arms, wagons, farming im- plements, tools, neat cattle, work animals, swine, goats, and sheep, not to exceed in value, in the aggregate, the sum of 8 JOO. ^ Homestead to the value of 81,000 ; not to extend however to debts for taxes thereon, or for the purchase thereof, or for improvements thereon. (1868.) Tennessee. Two beds with bedding, and for each three children of any one family, an addi- tional bed and bedding ; 2 cows, or cows and calves ; and if the family consists of six or more persons, 3 cows and calves ; certain specified table furniture ; 1 dozen chairs, 1 bureau not to exceed 840 in value ; 1 cooking stove and utensils to the value of 825, and other kitchen furniture ; 2 horses or mules or 1 yoke of oxen, 1 ox cart, 1 wagon not to exceed 875 in value, and harness ; 1 man's sad- dle, 1 woman's saddle, 2 bridles ; 25 barrels of corn, 20 bushels of wheat, 500 bushels of oats, 500 bundles of fodder, a stack of hay not to exceed 820 in value ; and if the family consist of less than six persons, 1000 pounds of pork, or 600 pounds of bacon ; or if the family consists of more than six persons, then 1200 pounds of pork or 900 pounds of bacon ; all the poultry and fowls to the value of 825 ; a home made carpet, 6 cords of wood, or 100 bushels of coal : 1 sewing machine. To a farmer, 2 plows, 2 hoes, 1 harvest cradle, knife, 1 set of plow gears, a pitchfork, rake; 5 sheep and 10 hogs. To a mechanic, his tools, 850 worth of lumber or material. To any laborer, 8100 of wages. (Acts 1867.) And 8250 worth of personal property in addition to that now exempt. (Acts 1868.) The homestead, consisting of dwelling house, outbuildings and land appurte- nant to the value of 81,000, to every head of a family, provided such homestead be duly registered. Texas. Fifty acres of land, (or one town lot,) including the homestead, and improve- 936 HOMESTRAD AND EXEMPTION LAWS. ments not exceeding $500 in value ; all household and kitchen furniture not to exceed $200; all implements of husbandry not to exceed $50 in value; all tools, apparatus and books belonging to the trade or profession of any citizen ; 5 cows, 1 yoke of oxen or 1 horse, 20 hogs, and one year's provisions. Vermont. The homestead to the value of $500, together with the rents, issues, profits and products thereof Such suitable apparel, bedding, tools, arms, and articles of household furniture as may be necessary for upholding life ; one sen ing machine ; one cow, the best swine or the meat of one swine, 10 sheep, one year's wool of same ; forage for the sheep and cow through one winter ; 10 cords wood, 20 bush- els of potatoes, all growing crops, 10 bushels grain, one barrel flour, 3 swarms of bees ; 200 pounds of sugar, grave-stones, one pew, live poultry to value of $10; professional books and instruments of physician, books of clergymen and lawyers, to value of $200 ; one yoke of oxen, two work horses, not to exceed $2i0 in value, with forage for the same through the winter. Virginia. To a householder ; The family Bible, family pictures, school books and library to the value of $1 00 ; one pew, one burial lot, all necessary wearing apparel, beds and bedding ; tliree stoves ; one cow, one horse, six chairs, one table and table furniture, one loom, one spinning wheel, one pair cards, one axe, two hoes, five barrels corn, five bushels wheat or one barrel flour, 200 pounds bacon or pork, three hogs, $10 in value of hay, one cooking stove and utensils, one sewing ma- chine ; to a mechanic, tools to the value of $100. To a farmer, one pair horses, or mules, with gearing, one wagon or cart, two plows, one drag, one harvest cradle, one pitchfork, one rake, two iron wedges. (Acts 1867.) Homestead of 160 acres, including buildings and not over $1200 in value. "West Virginia. Personal property to the value of $200. Homestead to the value of $500. "Wisconsin. Bible, family pictures, school books, library ; 1 pew, burial lot ; all wearing apparel ; all beds, bedding ; all stoves in use, and cooking utensils and other household furniture to the value of $200 ; 2 cows, 10 swine, 1 yoke of oxen and 1 horse, a span of horses, 10 sheep and wool of same; necessary food for all ex- empt stock for one year's support ; 1 wagon, cart or dray, 1 sleigh, 1 plow, and other farminp- utensils to the value of $50 ; provision for debtor and his family, and fuel for one year. EXEMPTION UNDER THE UNITED STATES BANKRUPT LAW. The necessary household and kitchen furniture, and other articles and necessa- ries of such bankrupt not to exceed the sum of $500. LEGAL BATES OP INTEREST. 937 The wearing apparel of such bankrupt and of his wife and children. All the arms, uniform and equipments of soldiers. All such other property as is ex- empted by the laws of the State in wliieh the bankrupt has his domicile. 3.— LtGAL RATES OF INTEREST AND PENALTIES FOR USURY IN EACH OF THE STATES. Alabama. — Legal rate, eight per cent. More than legal interest cannot be re- covered. Arkansas. — Legal I'ate, six per cent. Any per cent, may be agreed upon, how- ever, either by written or verbal contract. (Acts 1868.) California. — If there is no contract in writing, fixing a different rate, seven per cent, is understood ; but the parties may contract in writing for any rate they please. (Acts 1868.) Connecticut. — Legal rate, six per cent. A higher rate forfeits the whole interest. Taxes and insurance may be added. District of Columbia. — Legal rate, six per cent. Usury voids contracts at law, and the parties forfeit treble the amount lent or contracted. Delaware. — ^Legal rate, six per cent. Whoever takes more than this forfeits the whole debt, half to the prosecutor and half to the State. Florida. — Legal rate, eight per cent. Usury is punishable by indictment and loss of all the interest. (Acts 1865.) Georgia. Legal rate, seven per cent. If more is taken, the principal only can then be recovered. Illinois. — Legal rate, six per cent. Parties may contract for ten per cent. The penalty for usury is forfeiture of all interest. Indiana. — ^Legal rate, six per cent. Parties may agree upon ten per cent, in writing. Usurious interest cannot be recovered. (Acts 1867.) lovM. — Legal rate, six per cent. Parties may agree upon ten per cent. Kansas. — Legal rate, seven per cent. Parties may agree upon twelve per cent. Taking usury forfeits all interest. Kentucky. — Legal rate, six per cent. Usurious interest void ; if paid it may be recovered in an action. Louisiana. — Legal rate, five per cent. Parties may agree upon eight per cent. : a contract f6r a higher rate, forfeits all interest. Maine. — ^Legal rate, six per cent. Usurious interest, if paid, may be recovered back. Maryland. — ^Legal rate, six per cent. Usury — forfeiture of the usurious interest. Massachusetts. — Legal rate, six per cent. But parties may agree in writing upon any higher rate. Michigan. — Legal rate, seven per cent. Parties may agree upon ten per cent. Usurv renders the contract void. 938 LEGAL RATES OF INTEREST. Mississippi. — ^Legal rate; six per cent. Parties may agree upon ten per cent. If more be taken, the excess is forfeited. Missouri. — Legal rate, six per cent. Parties may in writing agree upon any rate not to exceed ten per cent. Compound interest may be agreed upon and paid, but the compounding shall not be oftener than once a year. Minnesota. — ^Legal rate, seven per cent. Any higher rate, not to exceed (welvc per cent., may be agreed upon in writing. No agreenient shall be valid for an excess above this. Nebraska. — Legal rate, ten per cent. Any rate, not to exceed fifteen per cent., may be agreed upon by the parties. Usury causes forfeiture of the whole interest. New Jersey. — Legal rate, six per cent. Contracts for a higher rate are void. Seven per cent, may be taken on contracts in Jersey City, in Hudson, Essex Bergen and Union Counties, and township of Woodbridge, and City of Patter- sion, if the parties actually reside there. New Hampshire. — Legal rate, six per cent. But banks may take seven and three- tenths per rent. Usury forfeits three times the amount unlawfully taken. Nem York. — Legal rate, seven per cent. All contracts reserving a higher rate, are void. The taking of usury is deemed a misdemeanor and excess may be re- covered back within a year by payer, and by overseers oi poor within tluree years. Nevada. — Legal rate, ten per cent, : but the parties may agree upon any rate in. writing. North Carolina. — Legal rate, six per cent. Eight per cent, may be charged upon agreement in writing. No interest shall be recovered where an usurious rate is charged. (Acts 1866.) Ohio. — Legal interest, six ver cent. After Oct. 1, 1869, eight per cent, may be taken upon bonds, bills or other instruments in writing. More cannot be recovered. Pennsylvania. — ^Lcgal rate, six per cent. Excess cannot be recovered. Rhode Island. — Legal rate, six per cent., unless a diflerent rate is expressly stip- ulated. (Acts 1865.) South Carolina. — Legal rate, seven per cent. The usury laws of the State were repealed in 1 865. Tennessee. — Legal rate, six per cent. Upon agreement in writing, ten per cent, may be charged. Usury causes forfeiture of the entire Interest, and renders the lender liable to a fine equal to the full amount of interest agreed upon. Texas. — Legal rate, eight per cent. Upon written agreement, twelve per cent, may be charged. If a higher rate is agreed for, the whole interest is forfeited. Vermont. — Legal rate, six per cent. Interest paid beyond that may be recovered back. A bank suffers a penalty of $100 for usury. Virginia. — Legal rate, six per cent. All contracts for a higher rate void, and the excess, if paid, may be recovered back. Wisconsin. — ^Legal rate, seven per cent. Parties may agree upon a rate not ex- ceeding ten per cent. Parties paying greater interest may recover three times the excess. PENSION LAWS. 939 4.— ABSTRACT OF THE LAWS CONCERNING PENSIONS FROM THE UNITED STATES GOVERNMENT. Who are allowed Pensions, All officers, non-commissioned officers, soldiers, and musicians of the arniy, in- cluding regulars, volunteers or militia. And all officers, seamen and other per- sons in the navy or marine corps, disabled by reason of wounds received or disease contracted while in the service of the United States and line of duty ; and aU persons not enlisted soldiers in the army, who volunteered for the time being to serve with any regularly organized military or naval force of the United States, or otherwise volunteered and rendered service in any engagement with rebels or Indians, since March 4, 1861, if disabled by reason of wounds re- ceived in battle in such service, are entitled to pensions to be continued during such disability In case of the death of any of the persons named from wounds so received or disease so contracted, they are succeeded in their rights to a pen- sion by their dependent relatives in the following order and under the circum- stances mentioned. Widows — to terminate with re-marriage, and not renewable in case of a sec- ond widowhood. In case the deaeased soldier or sailor leave children under six- teen years of age, and the widow be shown to have abandoned the care of such children, or to be unfit, by reason of immoral conduct to have their custody, payment of the pension to her shall cease till the children become sixteen years of age, and shall be made to the guardian of the children during that time. Children. — If the deceased soldier or sailor leave no widow, or after the re- marriage of the widow, if there be one ; the children of the dece:vsed under six- teen years of age shall be entitled to the pension ; payment of the same to cease on their reaching the age of sixteen. MoTHEKS. — If the deceased leave neither widow, nor child under sixteen, but leaves a mother dependent in whole or in part upon him for support, the pension shall be paid to her. If, however, the mother be receiving a pension as widow also, she must choose which one she will receive. The pension to her will termin- ate on her re-marriage. Fathers are entitled to a pension on account of a son, upon the same condi- tions and Subject to same restrictions as mothers, — but not terminable on mar- riage. Brothers and Sisters. — If the deceased leave neither widow, child, mother or father, but orphan brothers or sisters under sixteen, dependent in whole or in part upon hjm for support, the pension may be paid to them till they reach the age of sixteen. But one full pension will be allowed to any of the relatives of the deceased, and none will receive it who have in any way aided or abetted the rebellion, but the relatives next entitled will take it in their stead. 940 PENSION LAWS. Amount of Pensions for total JXsahility., Abmt.— Lt. Col. and all higher officers— per month, $30.00 Major,. " 25.00 Captain, " 20.00 1st Lieut., " 17.00 2d Lieut., " 15.00 Non-commissioned oflBcers, musicians and privates, per month,.. 8.00 Navt and Marine Corps. — Captains, Commanders, Surgeons, Paymas- ter, and Civil Engineer, ranking with commander, Lieut. Commanding, and Master Commanding, per month, 30.00 Lieut. Surgeon, Paymaster, and Civil Engineer, ranking with Lieut., and passed Assistant Surgeon, per month, 25.00 Prof. Mathematics, Master, Asst. Surgeon, Asst. Paymaster, and Chaplain, per month, 20.00 Pilots. — 1st Asst. Engineer, per month, 1 5.00 Passed Midshipmen, Midshipmen, Captain, and Paymasters' Clerks, second and third Asst. Engineers, Master's Mate, and all warrant officers, per month, 10.00 And for inferior disability a proportionate amount. All petty officers and others, per month, i 8.00 Widows of revolutionary soldiers and sailors, 8.00 Persons entitled by law to a less pension, who have lost the sight of both eyes or both hands, or been permanently and totally disabled in the same, or othenvise so permanently' and totally disabled as to require the constant care and attendance of others, shall receive per month, 25.00 Who having but one eye shall have lost the same, 25.00 Have lost both feet, or one hand and one foot, or been permanently and to- tally disabled in the same, or otherwise, so as not to be able to do man- ual labor, but not so as to require constant care and attendance, 20.00 All who have lost one hand or one foot, or been permanently and totally disabled in the same, or otherwise so as to render their inability to per- form manual labor equivalent to the loss of one hand and one foot,. . . 15.00 Increase of Pensions. — The pension to widows of soldiers and sailors leav- ing childien under .sixteen years shall be increased S2 per month, for each such child. In cases where pension to widow has been terminated by her re-marriage, or suspended by the provisions of law, the pension to the children shall be in- creased $2 per month to each child. If the deceased leave children by a former wife, each under sixteen, shall receive the $2 per month additional, payable to their guardians — when, however, these children are in the care and custody of the widow, the payment shall be made to her. MiaCELLANEOOs PROVISIONS. — In all cases where a commission has been regularly issued, and the person shall have died or become disabled while in the line of duty after date of commission, and before muster, he shall receive a pen- sion according to his rank the same as if he had been mustered, unless the fail- ure to muster happened through refusal or wilful neglect. All pensions shall commence with the discharge or death of persons on whoso account they are granted, if application is filed within five years after right has PENSION LAWS. 941 accrued ; if, however, the persons entitled arc insane or minors, without guardi- ans previous thereto, more than five years may be allowed. In case of death of person entitled to invalid pension while his claim is pend- ing, leaving a widow or relative entitled to succeed, the pension to such widow or relative shall commence at same time that it would if he had survived. If any person entitled to pension die during pendency of claim, leaving no widow or child under sixteen, his heirs or legal representatives shall receive the accrued pension to wliich he would have been entitled had the certificate issued before his or her death. No pension claim not prosecuted to a successful issue within five years from the date of filing shall be admitted without satisfactory record evidence from the War Department to establish it. If a pension remains unclaimed three or more years after it becomes due, it shall be considered presumptive evidence that the same has legally terminated, and the pensioner's name shall be stricken from the rolls : subject, however, to be replaced on new application and proof, and satisfactory explanation of the neglect to claim payment. The provisions of the law are to apply to all pensioners whose rights accrued subsequently to the revolution. Provisions op the Law foe the Protection of Pensioners. No sum of money due or to become due on a pension shall be liable to attach- ment, levy, or seizure while the same remains in the Pension OflSce, or with any of its ofiBcers, or is in course of transmission to the pensioner; neither is any pledge or mortgage, or transfer of any kind, of any claim or interest in a pension valid. And any person acting as Attorney to receive and receipt for money on a pen- sion, shall, before receiving it, take and subscribe an oath to be filed with the pension agent, that he has absolutely no interest whatever in the re^oney, and does not know o|r believe that the same has been disposed of to any person — and taking such oath, falsely, subjects to the pains and penalties of perjury. Any person presenting at any Pension Agency a power of attorney, or other voucher required in drawing a pension, which shall bear a date subsequent to that on which it was signed or executed, shall be deemed guilty of a misde- meanor punishable by fine of not over $500, or imprisonment for not over three years, or both. Fees. Attorneys. — The fees for services by attorneys are regulated by law, and are as follows : Por making out declaration by applicant, and causing the same to be duly executed, with the necessary affidavits, and forwarding the same to the pension office, with the requisite correspondence, $10.00 Which shall be in full for all services in obtaining said pension, and shall not be demanded or received in whole or in part tUl the pension be obtained: And, any one demanding or receiving, directly or indirectly, a greater compen- 942 PENSION LAWS. sation for such services, or contracting or agreeing to prosecute such claim for a per centum upon any portion of the amount, or shall wrongfully withhold any part thereof from the pensioner, shall be punished by a fine not exceeding $200, or by imprisonment at hard labor for not more than two years, or both, for every offence. For preparing papers for receipt of semi-annual payment of pension, 25 cents, with penalty of five dolLars for every overcharge. All pensioners within a reasonable distance of the pension agency are required to draw their pensions in person. Pension Agent's Fees, — For administering oath to pensioner, his attorney or agent, fifteen cents, with $5.00 penalty for each offence of receiving a larger amount. Examination Fees. — To civil surgeons appointed by Commissioner of Pen- sions for the purpose of biennial examination or examinations specially ordered, of invalid pensioners, and certificate, $1.50, to be paid by the person examined, and refunded to him by the Pension Agent when pension is paid. In case a claim is prosecuted by agent or attorney, the Commissioner of Pen- sions will notify the applicant when pension is allowed or certificate is issued. On application by claimant in person or by letter, the Commissioner of Pen- sions will furnish, free of expense, all the necessary instructions and forms used in establishing a claim to a pension, in a printed pamphlet ; and upon wri- ting to the nearest State pension agent, stating the case, proper blanks will be filled up and sent to the applicant subject only to the small fees which are due to the agent by law. This saves all necessity for employing an attorney or other agent in most cases. Whenever the pensioner lives within a reasonable distance of the pension agency he is required to draw it personally. The agents always require the use of the printed blanks which are prepared and furnished by the government, which renders it quite useless to publish forms. These printed government blanks cost the pensioner nothing, promote accuracy, and secure uniformity. 5.— LAWS, REGULATIONS, AND DECISIONS, CONCERNING THE PURCHASE AND USE OF INTERNAL REVENUE STAMPS, (AS ISSUED BY THE DEPARTMENT MAY 1, 1869.) CANCELLATION. In all cases where adhesive stamps are used for denoting the tax upon an in- strument, the person or party using or affixing them must so affix them that the entire surface of each and every stamp shall be exposed to view, and must cancel them by writing or imprinting upon each stamp with ink the initials of his name, and the date (year, month, and day) on which the same is attached or used. When stamps are printed upon checks, &c., so that in filling up the instru- ment the face of the stamp is, and must necessarily be, written across, no other cancellation will be required. All cancellation must be distinct and legible, and except in the case of pro- f OP REVENUE STAMPS. 943 prietary stamps from private dies no method which differs from that ahove de- scribed can be recognized as legal and sufficient for stamps under Schedules B and C. STAMPING OF INSTHUMENTS BY COLLECTOKS. Any person having an instrument about to be issued, may present it to the collector, who, under the authority conferred upon him by section 162, will so stamp it as to place the sufficiency of that particular instrument beyond all question so far as stamp duties are concerned. The provisions of the section can in no case be applied to an instrument ajier it has been issued or used. The collector should decline to stamp or impress an instrument, under this section, until the stiimp duty with which he thinks it chargeable has been paid. In cases of rea- sonable doubt he is recommended to obtain the opinion of this office before affix- ing his stamp, unless immediate action is essential to the interests of the parties concerned. Two metallic stamps, — one, " Stamp duty paid," and the other, " Not subject to stamp duty," have been furnished to collectors for use under section 162 ; they should never be used under section 158 ; should never be used except upon such instruments as are presented for the collector's stamp before they have been issued or itsed. Any person who has made, signed, or issued an instrument subject to stamp duty unstamped or insuiEciently stamped, or any person having an interest therein, may present it to the collector of the proper district, who, upon payment of the price of the proper stamp required by law, a penalty of fifty dollars, and, where the whole amount of the tax denoted by the stamp required exceeds fifty dollars, on payment also of interest at the rate of six per centum fi'oni the day on which such stamp ought to have been affixed, is required by law tu affix the stamp and to note upon the margin of the instrument the date of his so doing, and the fact that such penalty has been paid. This duty is obligatory upon the collector, and he has no legal right to refuse to perform it. When an instrument is presented to a collector to be stamped, under the pro- visions of section 158, he is authorized to remit the penalty, if it shall be proven to his satisfaction that such instrument was issued without the necessary stamp by reason of accident, mistake, inadvertence, or urgent necessity, and without any wilful design to defraud the United States of the duty, or to evade or delay the payment thereof; provided such instrument is presented to him for that pur- pose, and the stamp tax chargeable thereon is paid within twelve calendar months after the making or issuing thereof Interest cannot be remitted. The collector's marginal note should be In substance as follows : Internal rtvenue stamps to the amount of S , affixed to this instrument and cancelled by me at the request of , this day of , 18 . Penalty $ and Interest S collected, (or penalty remitted and interest S collected, if that be the fact.) Collector District of When there is a difference of opinion respecting the stamp proper to be affixed, the collector should affix such a one as the applicant prefers ; the applicant takes 944 OF REVENUE STAMPS. the risk of the validity of his instrument. In such cases, however, it is ailvisal)lo to refer the question to this office. An instrument stamped by the collector in conformity with the foregoing in- structions is as valid to all intents and purposes {except as against rights acquired in good faith before such stamping and the recording of the instrument, if a rec- ord be required) as if properly stamped when made and issued. When the originals are lost, the necessary stamps may be affixed to copies in all cases which fall under section 158. Each collector will keep a record of all instruments stamped or impressed by him under the provisions of sections 158 and 162, in which must be given the names of the pai-ties to each instrument, the date of its execution, and a suffi- cient description of its nature to show the reasons for impressing or affixing the particular stamp. A certified copy of this record will be transmitted to this office at the close of each quarter. When none have been staanped during the quarter, that fact should be reported upon Form 8. The following is a suitable form for such record, and for the sake of uniformity should be adopted by all collectors : No. Names of Parties. Da's of I?" Deso^ption of i-..»iiico ^x Lt>.x jco gti-mngjit. Instrument. When Stamped. How Penalty remitted Stamped, or Am'nt collected. The names of all the parties should be entered. The description of each in- strument should be accurate and full, giving all the facts essential to a determin- ation of its liability ; the number of sheets or pieces of paper in a contract ; the amount of a promissory note, and if it were issued under the act of March 3, 186g, t. c, subsequent to March 2, 1863, and prior to August 1, 1864, the time it was to run, the consideration of a conveyance of realty, the amount secured by a mortgage or trust deed, the rent or rental value in the case of a lease, &c., &c. If an instrument is presented for insufficiency of stamp, the amount upon it, when presented, should be stated. Under " how stamped " should appear the amount of adhesive stamps (if any) affixed ; and if impressed " stamp duty paid," or " not subject to stamp duty," the proper entry should be made in this column. Collectors should be cautious not to impress instruments thus unless presented before they are issued. The whole amount of penalties paid to collectors for validating unstamped in- struments should be returned on Form 58, with other unasscssed penalties ; the interest should be entered under the head of interest, (167,) upon monthly ab- stract of collections, (Form 22,) and both penalties and interest should be de- posited to the credit of the United States Treasurer with other collections. That part of the act of July 1, 1862, which relates to stamp duties on instru- ments, took effect on the first day of October, 1862. (Sec. 94.) The stamp laws OP REVENUE STAMPS. 945 have been amended and changed from time to time since that date, viz : by sec- tions 24 and 25 of the act of July 14, 1862 ; by the amendatory act of Decem- ber 25, 1862; by the amendatory act of March 3, 1863, which, as to stamp duties, took effect ^rom and after its p:\ssage (sec. 37) ; by the act of June 30, 1864, which, so far as pertains to stamp duties upon instruments, took effect on the first day of August, 1864 (sec. 151) ; by the amendatory act of March 3, 1865, which, as to such duties, took effect on the first day of April, 1865 (sec. 18) ; by the amendatory act of July 13, 1866, which, as to such duties, took effiict on the first day of August, 1866 (sec. 70) ; by the amendatory act of March 2, 1867, wliich, so far as stamps are concerned, provides simply for a reduction of taxes, and relates back and took effect from the first day of March, 1866, inclu- sive (sec. 9) ; and by the amendatory act of April 10, 1869, which, so far as stamps are concerned, took effect on its passage. The several remedies which have from time to time been provided for the effects of a failure to stamp instruments prior to their issue are to be found in section 24 of the act of July 14, 1862 ; .section 5 of the act of December 25, 1862 ; section 163 of the act of June 30, 1864 ; in the amendment of March 3, 1865, to section 158 of the act of June 30, 1864, and in the amendment of July 13, 1866, to said amended section 158. The only remedy under existing laws is to be found in the provisions of sec- tion 158 of the act of June 30, 1864, as amended by the acts of March 3, 1865, and July 13, 1866, i. e., by having the instruments stamped by the collector of the " proper district." A person who holds an unstamped conveyance founded upon a "confederate currency " consideration will be allowed to aifix such stamps thereto as he may think sufficient, and no prosecution will be instituted by direction of this office for the recovery of a penalty for failure to stamp it according to the nominal amount of such consideration. If the parties interested elect to stamp it accord- ing to the actual value of the consideration in United States cuiTcncy at the date of its delivery, they will be allowed to do so, taking their own risk of the sufficiency of the stamp. The validity of a deed is a question for the courts. It is one of importance to the parties, but not to this office, any further than tlie insufficiency of the stamp may affect the revenue. The foregoing is applicable to other instruments as well as to deeds. PENALTIES. A penalty of $50 is imposed upon every person who makes, signs, or issues, or who causes to be made, signed, or issued, any paper of any kind or descrip- tion whatever, or who accepts, negotiates, or pays, or causes to be accepted, ne- gotiated, or paid, any bill of exchange, draft, or order, or promissory note, for the payment of money, without the same being duly stamped, or having there- upon an adhesive stamp for denoting the tax chargeable thereon, cancelled in the manner required by law, with intent to evade the provisions of the revenue act. (Sec. 158.) A penalty of $200 is imposed upon every person who pays, negotiates, or offers in payment, or receives or takes in payment, any bill of exchange or order for the payment of any sum of money, drawn or purporting to be drawn in a foreign country, but payable in the United States, until the proper stamp has been affixed thereto. (Sec. 159.) 60 9-46 OF REVENUE STAMPS. A penalty of $50 is imposed upon every person who fraudulently makes use of an adhesive stamp to denote the duty required by the revenue act, without effectually cancelling and obliterating the same in the manner required by law. (Sec. 1.56.) Attention is particularly called to the following extract from section 155 of the act of June 30, 1864, as amended by the act of July 13, 1866 : " If any person shall wilfully remove or cause to be removed, alter or cause to be altered, the cancelling or defacing marks on any adhesive stamp, with intent to use the same, or to cause the use of the same, after it shall have been once used, or shall knowingly or wilfully sell or buy such washed or restored stamps, or offer the same for sale, or give or expose the same to any person for use, or knovringly use the same or prepare the same with intent for the further use thereof, or if any person shall knowingly and without lawful excuse (the proof whereof shall lie ou the person accused) have in his possession any washed, re- stored, or altered stamps, wliich have been removed from any vellum, parchment, paper, instrument, or writing, then, and in every such case, every person so offending, and every person knowingly and wilfully aiding, abetting, or assisting in committing any such offence as aforesaid, shall, on conviction thereof, » * * be punished by a fine not exceeding SI, 000, or by imprisonment and confinement to hard labor not exceeding five years, or both, at the discretion of the court." Also to section 2 of the amendatory act of April 10, 1869, which is as follows : " And be it further enacted. That section 1 55 of the act entitled ' An act to pro- vide internal revenue to support the government, to pay interest on the public debt, and for other purposes,' approved June 30, 1864, as amended by the 9th section of the act of July 13, 1866, be farther amended by adding thereto the following : And the fact that any adhesive stamp so bought, sold, offered for sale, used, or had in possession as aforesaid, has been washed or restored by removing or altering the cancelling or defacing marks thereon, shall be prima facie proof that such stamp has been once used and removed by the possessor thereof from some vellum, parchment, paper, instrument, or writing, charged with taxes im- posed by law, in violation of the provisions of this section.'' It is reported that persons in various parts of the country, and under various pretexts, are collecting cancelled stamps, and, as it is believed, for the purpose of removing the cancelling marks therefrom and preparing them for further use. All revenue ofificers are expected to give this matter their special attention ; to acquaint the people with the tnie object for which such stamps are collected, and with the penalties incurred by all who in any way knowingly and wilfully aid, abet, and assist in the commission of the offence. It is believed that many stamps are gathered from persons who are ignorant of the use to which they are to be put, and innocent of all intent to defraud the revenue. The fact that a person is collecting stamps which have once been used is suffi- cient to arouse strong suspicion, and calls for an immediate investigation ; and the possession of washed, restored, or altered stamps is prima facie evidence of guilt. No pains should be spared to insure the detection and punishment of guilty parties. It is not lawful to record any instrument, document, or paper required by law to be stamped, or any copy thereof, unless a stamp or stamps of the proper amount have been affixed and cancelled in the manner required by law ; and OP REVENUE STAMPS. 9-i7 such instrument or copy and the record thereof are utterly mill and void, and cannot he used or admitted as evidence in any court until the defect has been cured as provided in section 158. All wilful violations of the law should be reported to the United States district attorney within and for the district where they are eoinmitted. GENERAL REMARKS. Revenue stamps may be used indiscriminately upon any of the matters or things enumerated in Schedule B, except proprietary and playing card stamps, for which a special use has been provided. Postage stamps cannot be used in payment of the duty chargeable on instru- ments. The law does not designate which of the parties to an instrument shall furnish the necessary stamp : but no instrument subject to stamp- duty can be recoidL-d, or admitted, or used as evidence, in any court, untU properly stamped, and the person who issues it is hable to a penalty if he omits the stamps with an intent to evade the provisions of the internal revenue act The first act imj)0sing a stamp tax upon certain specified instruments took effect, so far as said tax is concerned, October 1, 1862. The impression which seems to prevail to some extent, that no stamps are required upon any instru- ments issued in the States lately in insurrection, prior to the surrender or prior to the establishment of collection districts there, is erroneous. Instruments issued in those States since October 1, 1862, are subject to the same taxes as similar ones issued at the same time in the other States. No stamp is necessary upon an instrument executed prior to October 1, 1862, to make it admissible in evidence or to entitle it to record. Certificates of loan, in which there shall appear any written or printed evidence of an amount of money to he paid on demand, or at a time designated, are sub- ject to stamp duty as " promissory notes." A check, draft, or order for the payment of a sum of money drawn otherwise than at sight, or on demand, is liable to stamp tax at the rate of five cents for each one hundred dollars or fractional part thereof. Every memorandum, check, receipt, or other written or printed evidence of an amount of money to be paid upon demand or at a time designated, is subject to stamp tax at the same rate as a promissory note. When a loan is obtained, upon collateral security, and an instrument substantially as follows is given . Received of Bank, $10,000 advance on $10,000 United States bonds, it should be stamped at the rate of five cents for each $100 or fractional part thereof. There is no stamp tax upon a promissory note until it is issued. A stamp is to be cancelled when it is " attached or used," and although a stamp may be affixed when a note is signed, it cannot be said to be used until the note is issued. A negotiable promissory note made, signed, and issued in a foreign country^ and made payable there, may be negotiated by endorsement in this country with- out liability to any United States stamp tax. A guaranty endorsed upon a note, bond, mortgage, or contract, whether made at the tinie of the execution of the note, &c., or subsequently, should be stamped as an agreement. 948 OP REVENUE STAMPS. A contract for the sale of land, or to make a title-deed to the purchaser on the payment of the purchase money, requires a five^ient stamp as an agreement for each sheet or piece of paper upon which it is written. Whentwo or more persons join in the execution of an instrument, the stamp to which the instrument is liable under the law may be aflSxed and cancelled by either of them ; and " when more than one signature is affixed to the same paper, one or more stamps may be affixed thereto, representing the whole amount of the stamp required for such signatures." No stamp is required on any warrant of attorney accompanying a bond or note, when such bond or note has afiBxed thereto the stamp or stamps denoting the duty required ; and whenever any bond or note is secured by mortgage but one stamp duty is required on such papers, such stamp duty being the highest rate required for such instruments, or either of them. In such case a note or memorandum of the value or denomination of the stamp affixed should be made upon the margin or in the acknowledgment of the instrument which is not stamped. The exemption in regard to bounties, &c., applies to those papers only which relate to United States bounties, pensions, &c., and does not extend to those relating to State, county, and town bounties, &e. A power of attorney to endorse the official check of a United States disbursing officer, issued for money to be applied in payment of a United States bounty or pension, or in discharge of a claim against the United States for what is technically known as arrearages of pay, is a paper relating to the receipt of such pension, bounty, &c., and is therefore exempt from stamp tax. A mortgage given to secure bonds which are to be issued from time to time as sales of them can be made, is valid so far as stamp taxes are concerned, though no stamps arc affixed thereto if the bonds are properly stamped, as provided in section 60, aa they are issued. A note or bond given for a part of the consideration for realty sold and con- veyed, is not relieved from stamp tax, by the fact that a lien to secure the pay- ment thereof is retained in the conveyance. A foreign bill of exchange or letter of credit drawn in, but payable out of the United States, if drawn singly, or otherwise than in sets of three or more, ac- cording to the custom of merchants and bankers, is liable to the same stamp tax as an inland bill of exchange ; i. e., if drawn at sight or on demand it is liable to a tax of two cents ; if drawn otherwise than at sight or on demand it should be stamped at the rate of five cents for each SlOO or fractional part thereof. Duplicates require the same amount of stamps as their original. Particular attention is called to the change in section 154, by striking out the words " or used ; " the exemption thereunder is thus restricted to documents, &c., j'ssuerf by the officers therein named. Also to the changes in sections 152 and 1 58, by inserting the words " and cancelled in the manner required by law." The acceptor or acceptors of any bill of exchange, or order for the payment of any sum of money, drawn or purporting to be drawn in any foreign country, but payable in the United States, must, before paying or accepting the same, place thereupon a stamp indicating the duty. It is only upon conveyances of realty sold that conveyance stamps are neces- sary. A deed of real estate made without valuable consideration need not be stamped as a conveyance, but should be stamped as an agreement or contract. When one person conveys real property without valuable consideration, through OF REVENUE STAMPS. 949 the intervention of a trustee, neither the deed to the trastee, nor the trustee's deed to the cestui que trust need be stamped as a conveyance of " realti/ sold," but each should be stamped as a contract or agreement. When a deed purporting to be a conveyance of realty sold, and stamped ac- cordingly, is inoperative, a deed of confirmation, made simply to cure the defect, requires no stamp. In such case, the second deed should contain a recital of the facts, and should show the reasons for its execution. Partition deeds between tenants in common need not be stamped as convey- ances, inasmuch as there is no sale of realty, but merely a marking out, or a defining, of the boundaries of th^part belonging to each, but should be stamped as agreements. Where money, however, or other valuable consideration is paid by one co-tenant to another for equality of partition, there is a sale to the extent of such consideration, and the conveyance, by the party receiving it, should be stamped accordingly. Deeds between joint tenants should be stamped as conveyances of realty sold. In the case of tenants in common, each tenant owns the whole of a part, and there is no sale, but merely a marking out, or defining, of the part belonging to each ; in the case of joint tenants, each owns a part of the whole, and in what is usually denominated a division in such case there is an exchange of lands. An exchange does not differ materially from bargain and sale. Ground-rent deeds should be stamped at the same rate as other conveyances of realty sold : 50 cents for each $500; or fractional part of S500, of the consid- eration or value. When the property of a deceased person is sold under a decree of court, for the purpose of dividing the proceeds among the heirs, the deed, proccs verbal, or other instrument whereby the transfer is made, should be stamped at the usual rate of conveyances of realty sold. When a conveyance of realty is made upon an actual valuable consideration which is manifestly and intentionally inadequate, the deed should be stamped accord- ing to the amount of valuable consideration, and a succession tax (unless the successor be the wife of the predecessor) should be assessed upon the value of the land conveyed, less such consideration. When the members of a business firm obtain an act of incorporation, and the partnership realty is conveyed to the corporation, each partner receiving stock therein to the amount of his partnership interest, the deed from the firm to the corporation should be stamped like ordinary deeds at the rate of 50 cents for each $500, or fractional part of $500, of the consideration or Value. When a deed covers both realty and personalty, it should be stamped at the rate of 50 cents for each $500, or fractional part of $500, of the consideration or value of the realty, and as a contract or agreement on account of the persenalty. When a receipt for an instalment of rent is written upon that part of a lease held by the tenant and issued to himj a two-cent stamp should be affixed to it, if the amount received exceeds $20. A receipt for a bank check is a receipt for money within the terms of the in- ternal revenue act, (Schedule B, Receipts,) and if for a sum exceeding $20, re- quires a two-cent stamp. It is not relieved by the stamp on the check. A mere unsigned memorandum of the amount of money paid upon a bond, or contract, made upon the bond itself, in the usual way of endorsing partial pay- ments, need not be stamped, whatever the sum paid. 950 OF REVENUE STAMPS. When a person who has entered into a contract to convey certain lands upon payment of a certain sum, makes a written endorsement of a partial payment upon the copy of the contract held hy the party mahing the payment, and signs it, he should affix a two-cent stamp, if the amount received exceeds S20. A check drawn by an individual upon himself, or drawn upon a bank by its cashier, in his official capacity, and in the discharge of his official duty, is in its legal effect " written or printed evidence of an amount of money to be paid on demand or at a time designated," and should be stamped at the rate of a prom- issofy note — five cents for each $100"or fractio]jal part thereof. A conveyance of lands sold for impaid taxes, issued since August 1, 1866, by the officers of any county, town, or other municipal corporation in the discharge of their strictly official duties, is exempt from stamp tax. A conveyance of realty sold subject to a mortgage should be stamped according to the consideration, or the value of the property if unencumbered. The considera- tion in such case is to be found by adding the amount paid for the equity of re- demption to the mortgage debt. The fact that one part of the consideration is paid tg the mortgagor and the Other part to the mortgagee does not change the liability of the conveyance. The stamp tax upon a mortgage is based upon the amount it is given to se- cure. The fact that the value of the property mortgaged is less than that amount, and that consequently the security is only partial, does not change the liabilit}' of the instrument. When, therefore, a second mortgage is given to secure the payment of a sum of money partially secured by a prior mortgage upon other property, or when two mortgages upon separate property are given at the same time to secure the payment of the same sum, each should be stamped as though it were the only one. A mortgage given to secure a surety from loss, or given for any pui-pose what- ever, other than as security for the payment of a definite and certain sum of money, is taxable only as an agreement or contract. The stamp tax on a mortgage, or trust deed, is based upon the definite or cer- tain sum of money originally secured thereby, without including any interest which may accrue after the date of the instrument. A mortgage securing SlOO or less is not subject to stamp dnty, but the liabil- ity of the bond or note, which is evidence of the amount secured, is the same as though there were no mortgage ; the necessary stamp may, however, be affixed either to the bond or note or to the mortgage. (Sec. 1 60. ) The stamp duty upon a lease, agreement, memorandum, or contract for the hire, use, or rent of any land, tenement, or portion thereof, is based upon the annual rent or rental value of the property leased, and the duty is the same whether the lease be for one year, for a term of years, or for the fractional part of a year only. A lease of both realty and personalty should be stamped as a lease of lands and tenements as to the realty, and, in addition thereto, as an agreement as to the personalty. Upon every assignment or transfer of a mortgage, a, stamp tax is required equal to that imposed upon a mortgage for the amount remaining unpaid ; tliis tax is required upon every such transfer in writing, whether there is a sale of the mortgage or not ; but no stamp is necessary upon the endorsement of a negoti- able instrument, even though the legal cffi^ct of such endorsement is to transfer a mortgage by which the instrument is secured. OF REVENUE STAMPS. 951 When a partial interest in a mortgage is assigned, as where one of two mort- gagees assigns his interest, the assignment should be stamped according to tlio amount of interest transferred. An assignment of a lease within the meaning and intent of Schedule B, is an assignment of the leasehold, or of some portion thereof, by the lessee, or by some person claiming by, from, or under him ; such an assignment as subrogates the assignee to the rights, or some portion of the rights, of the lessee, or of the per- son standing in his place. A transfer by the lessor of his part of a lease, neither giving nor pm-porting to give a claim to the leasehold, or to any part thereof, but simply a right to the rents, &c., is subject to stamp tax as a contract or agree- ment only. The stamp tax upon a fire insurance policy is based upon the premium. Deposit notes taken by a mutual fire insurance company, not as pajanent of premium nor as evidence of indebtedness therefor, but to be used simply as a basis upon which to make ratable assessments to meet the losses incurred by the companj', should not be reckoned as premium in detennining the amount of stamp taxes upon the policies. TVhen a policy of insurance properly stamped has been issued and lost, no stamp is necessary upon another issued by the same company to the same ptirty, covering the same property, time, &e., and designed simply to supply the loss. The second policy should recite the loss of the first. An instrument which operates as the renewal of a pohcy of insurance is sub- ject to the same stamp tax as the policy. AVhen a policy of insurance is issued for a certain time, whether it be for one year only or for a term of years, a receipt for premium or any other instrument which has the legal effect to continue the contract and extend its operation beyond that time requires the same amount of revenue stamps as the policy itself; but such a receipt as is usually given for the payment of the monthly, quarterly, or annual premium, is not a renewal within the meaning of the statute. The pay- ment simply prevents the policy from expiring, by reason of non-performance of its conditions ; a receipt given for such a payment requires a two-cent stamp, if the amount received exceeds twenty dollars, and a two-cent stamp only. When, however, the time of payment has passed, and a tender of the premium is not sufficient to bind the company, but a new policy or a new contract in some form, with the mutuality essential to every contract, becomes necessary between the insurer and the insured, the same amount of stamps should be used as that re- quired upon the original policy. A permit issued by a life insurance company changing the terms of a policy as to travel, residence, occupation, &c., should be stamped as a contract or agree- ment. A bill single or a bill obligatory, t. e., an instrument in the form of a prom- issory note, under seed, is subject to stamp duty as written or printed evidence of an amount of money to be paid on demand or at a time designated, at the rate of five cents for each one hundred dollai-s or fractional part thereof A waiver of protest, or of demand and notice, written upon negotiable paper and signed by the endorser, is an agreement, and requires a five-cent stamp. The certificate of notice to parties, usually appended to a notary's certificate of protest, forms no part of the protest, and requires additional stamps to the amonnt of five cents. A stamp duty of twenty-five cents is imposed upon the " protest of every note. 952 OP REVENUE STAMPS. bill of exchange, check or draft," and upon every marine protest. If several notes, bills of exchange, drafts, &c., are protested at the same time and all at- tached to one and the same certificate, stamps should be affixed to the amount of twenty-five cents for each note, bill, draft, &c., thus protested. When a subscription is for a purpose in which there is a community of inter- est among the subscribers, the list should be stamped as a contract, or agreement, at the rate of five cents for each sheet or piece of paper upon which it is written. When there is no community of interest, and the subscription is conditional, each signer executes a separate contract, requiring its api^ropriate amount of stamps ; this amount depends upon the number of sheets or pieces of paper upon which the contract is written. When each of the subscribers contracts to pay a certain and definite sum of money on demand, or at a time designated, the separate contract of each should be stamped at the same rate as a promissory note. When, as is generally the case, the caption to a deposition contains other cer- tificates in addition to the jurat to the affidavit of the deponent, such as a certificate that the parties were or were not notified, that they did or did not appear, that they did or did not Object, &c., it is subject to a stamp duty of five cents. When an attested copy of a writ or other process is used by a sheriff' or other person in making personal serrice, or in attaching property, a five cent stamp should be affixed to the certificate of attestation. A marriage certificate issued by the officiating clergyman or magistrate, to be returned to any officer of a State, county, city, town, or other municipal corpo- ration, to constitute part of a public record, requires no stamp ; but if it is to be retained by the parties, a five-cent stamp should be affixed. A county clerk's certificate, respecting the authority of a person to administer oaths, &c., issued to be used by a private party for his own benefit, is not re- garded as within section 154, which exempts instruments issued by the county " in the exercise of functions strictly belonging to it, in its ordinary governmental capacity." The stamp tax upon a bill of sale, by which any ship or vessel, or any part thereof, is conveyed to or vested in any other person or persons, is at the same rate as that imposed upon conveyances of realty sold ; a bill of sale of any other personal property should be stamped as a contract or agreement. An assignment of real or personal property, or of both, for the benefit of cred- itors, should be stamped as an agreement or contract. Written or printed assignments of agreements, bonds, notes not negotiable, and of all other instruments, the assignments of which are not particularly spe- cified in the foregoing schedule, should be stamped as agreements. No stamp is necessary upon the registry of a judgment, even though the regis- try is such in its legal effect as to create a lien which operates as a mortgage upon the property of the judgment debtor. When a " power of attorney or proxy for voting at any election for officers of any incorporated company or society, except religious, charitable, or literary so- cieties or public cemeteries," is signed by several stockholders, owning separate and distinct shares, it is, in its legal effect, the separate instrument of each, and requires stamps to the amount of ten cents for each and every signature; one or more stamps may be used representing the whole amount required. If the power relates to general business and not merely to the election of offi- OP REVENUE STAMPS. 953 cere, it should be stamped at the rate of fifty cents for each signer, whether it is to be used at the election of the societies, &c., above named or not. A notice from landlord to tenant to quit possession of premises requires no stamp. A stamp tax is imposed upon every " manifest for custom-house entry, or clearance of the cargo of any ship, vessel, or steamer for foreign port." The amount of this tax in each case depends upon the registered tonnage of the vessel. If a vessel clears in ballast and has no cargo whatever, no stamp is necessary ; but if she has any — however small the amount — a stamp should be used. A bond to convey real estate requires stamps to the amount of twenty-five cents. The stamp duty upon the probate of a will, or upon letters of administration, is based upon - the sworn or declared value of all the estate and effects, real, per- sonal, and mixed, undiminished by the debts of the estate, for or in respect of which such probate or letters are applied for. "When the property belonging to the estate of a person deceased lies under different jurisdictions, and it becomes necessary to take out letters in two or more places, the letters should be stamped according to the value of all the propertj-, real, personal, and mixed, for or in respect of which the particular letters in each case are issued. Letters de haiis nan should be stamjjed according to the amount of proiierty re- maining to be administered upon thereunder, regardless of the stamps U])on the original letters. A mere copy of an instrument is not subject to stamp duty unless it is a cer- tified one, in which case a five-cent stamp should be affixed to the certificate ci the person attesting it ; but when an instrument is executed and issued in dupli- cate, triplicate, &c., as in the case of a lease of two or more parts, each part has the same legal effect as the other, and each should be stamped as an original. SCHEDULE OP STAMP DUTIES UPON ARTICLES IN SCHEDULE C, AND 3N TDE AMENDMENTS THERETO. Stamp Duty. Proprietary medicines and prejmrations. — For and upon every packet, box, bottle, pot, phial, or other enclosure, containing any pills, powders, tinctures, troches, lozenges, sirups, cordials, bitters, anodynes, tonics, plasters, liniments, salves, oint- ments, pastes, drops, waters, essences, spirits, oils, or other medicinal preparations or compositions whatsoever, sold, offered for sale, or removed for consumption and sale, by any person or persons whatever, where such packet, box, &c., with its contents, does not exceed, at retail price or value, the sum of twenty-five cents 1 cent. Exceeding twenty-five and not exceeding fifty cents 2 cents. Exceeding fifty and not exceeding seventy -five cents 3 cents. Exceeding seventy-five cents and not exceeding one dollar 4 cents. Exceeding one dollar, for every additional fifty cents, or frac- tional part thereof in excess of one dollar 2 cents. Officinal preparations, and medicines mixed or compounded spe- 954 OF KEVENUE STAMPS. daily for any person according to the written recipe or pre- scription of any physician or surgeon exempt. Perfuinery and cosmetics. — For and upon every packet, box, bottle, pot, phial, or other enclosure containing any essence, extract, toilet-water, cosmetic, hair-oil, pomade, hair-dressing, hair-re- storative, hair-dye, tooth-wash, dentifrice, tooth-paste, aro- matic cachous, or any similar articles, by whatsoever name the same heretofore have been, now are, or may hereafter be called, known or distinguished, used or applied, or to be used or applied, as perfumes or applications to the hair, mouth, or skin, sold, offered for sale, or removed for consumption and sale, the same rates per package, &c., as for medicines and preparations. Friction matches. — For and upon every parcel or package of 100 or less 1 cent. More than 100 and not more than 200 2 cents. For every additional 100 or fractional part thereof 1 cent. Wax tapers, double the rates for friction matches. Cigar lights, made in part of wood, wax, glass, paper, or other mate- rials, in parcels or packages containing twenty-five lights or less in each parcel or package 1 cent. When in parcels or packages containing more than twenty-five and not more than fifty lights 2 cents. For every additional twenty-five lights, or fractional part of that number, one cent additional. Playing cards. — For and upon every pack not exceeding fifty-two cards in number, irrespective of price or value 5 cents. Canned meats, &c. — ^For and upon every can, bottle, or other single package containing fish, sauces, sirups, prepared mustard, jams or jellies, contained therein, and packed or sealed, made, prepared, and sold or offered for sale, or removed for consumption in the United States, on and after the first day of October, 1866, when such can, bottle, or other single pack- age, with its contents, shall not exceed two pounds in weight 1 cent. For every additional pound or fractional part thereof 1 cent. Cigar lights and playing cards, in the hands of manufacturers and dealers, should be stamped according to the rates fixed by the law now in force. The fact that they were manufactured prior to August 1, 1866, and are stamped in accordance with the law in force at the time of manufacture, does not relieve them from payment of the increased rates by affixing additional stamps. No stamp tax is imposed upon any uncompounded medicinal drug or chem- ical, nor upon any medicine compounded according to the United States or other national pharmacopoeia, or of which the full and proper formula is published in any of the dispensatories now or hitherto in common use among physicians or apothecaries, or in any pharmaceutical journal now issued by any incorporated college of pharmacy, unless sold or offered for sale or advertised imder some other name, form or guise than that under which they are severally denomina- ted and laid down in such pharmacopoeias, dispensatories, or journals. No stamp tax is imposed upon medicines sold to or for the use of any person, which may be mixed and compounded for said person according to the written OP REVENUE STAMPS. 955 recipe oi" proscription of a physician or surgeon. But all medicinal articles, whether simple or compounded by any rule, authority, or formula, published or unpublished, which are put up in a style or manner similar to that of patent or proprietary medicines in general, or advertised in newspapers or by public hand- bills for popular sale and use, as having any special proprietary claim to merit, or to any peculiar advantage in mode of preparation, quality, use or eifect, whether such claim be real or pretended, are liable to the tax. Stamps appropriated to denote the duty charged upon articles named in Sched- ule C, and in the amendments thereto, cannot be used for any otlier purpose ; nor can stamps appropriated to denote the duty upon insti-uments be used in pay- ment of the duties upon articles enumerated in this schedule. When proprietary stamps from a private die are used, if they are so affixed to the boxes, bottles, or packages that, in opening the same, or in using the con- tents tlicreof, they shall and must be unavoidably and effectually destroyed, no cancellation is necessary ; but if they cannot be so affixed, they should be can- celled in the ordinary manner by writing or imprinting thereon the initials and date. Wlien general proprietary stamps are used, they must be cancelled by writing or imprinting thereon the date and the initials of the party using or affixing them. When proprietary medicines and preparations, perfumery, and cosmetic3_are stamped according to their retail price or value in the immediate vicinity of the place of manufacture, no additional stamps are necessary upon them, whatever may be the price at which they arc offered. Any person who offers or exposes for sale any of the articles named in Sched- ule C, or in any of the amendments thereto, whether they are imported or of foreign or domestic manufacture, is to be deemed the manufacturer thereof, and subject to all the duties, liabilities, and penalties imposed by law in regard to the sale of domestic articles without the use of the proper stamp or stamps for de- noting the tax paid thereon. The stamp tax upon such articles imported or of foreign manufacture is in addition to the import duties ; but when such imported articles, except playing cards, lucifer or friction matches, cigar lights, and wax tapers, are sold in the original or unbroken packages in which the bottles or enclosures were packed by the manufacturer, no penalty is incurred for want of the proper stamp. When the packages are opened, stamps should be aflSxed. REGULATIONS POE THE PURCHASE OP STAMPS. Issued hy the Commissioner. "Revenue stamps may be ordered from this Office in amounts of not less than fifty dollars. Purchasers desiring smaller amounts should make application to a collector of internal revenue, or deputy collector, assessor, as.sistant treasurer of the United States, postmaster, or other dealer in stamps. Payments to this Office should be made in the form of a duplicate certificate of a United States assistant treasurer or designated.depositary of a deposit made on account of stamps. Revenue stamps may likewise be obtained of any national bank which is a designated depositary at the rates of commission at which they are furnished from this Office. They will also be deposited with the assistant treasurers and designated depositaries other than national banks. 956. OF BEVENUE STAMPS. GENERAL STAMPS. The following commission, payable in stamps, mil be allowed in purchases of common stamjjs : On purchases of S50 or more, two per centum. On purchases of $100 or more, three per centum. On purchases of $500 or more, four per centum. On purchases of $1 ,000 or more, five per centum. If any revenue stamps for which the owner may have no use are returned to this office in good order and free of expense, others will be given in exchange, at a discount of two and one-half per cent. Stamps that have been improperly or unnecessarily used and cancelled, when returned to this office for exchange, should be attached to the instruments on which they were used, and accompa- nied by an affidavit setting forth the facts, when other stamps will be given for them, at a discount of two and one-half per cent. The papers to which the stamps are affixed will be retained by the office. If the papers cannot be sent, that fact and the reasons for it must appear by the affidavit, and there must be certificates from both the assessor and the collector that they have each made personal examination of the case, and find the facts to be as stated. Stamps spoiled in transportation, or rendered useless by any modifications of the law, will be exchanged free of charge. When the affidavit is made before a person who has no official seal, his authority to administer oaths generally should be certified to by the clerk of a court of record under the seal of the court. Where the facilities for procuring and distributing stamps are deemed in- sufficient, the Commissioner of Internal Kevenue will, on application, furnish to a collector or assessor, assistant treasurer, designated depositary, or post- master of the United States, a suitable quantity for the supply of the proper dis- trict, and will allow the highest rate of commissions allowed by law to any pur- chaser of common stamps for cash. Such stamps will be furnished imder sec- tion 170 of the excise law; and the officer applying to be furnished mth such stamps will give bond, with three sufficient sureties, conditioned for the faithful return, whenever so required, of all quantities or amounts undisposed of, and for the payment, monthly or otherwise, according to instructions, for all quantities and amounts sold or not reported as remaining on hand. No bond will be accepted for a less sum than five hundred dollars. Persons to whom stamps shall be furnished under this section will be expected to conform to the following rules : Agents for the sale of stamps will make return under oath to this office on Form 55, on the first day of each month, of the amount of stamps sold during the preceding month, and of the amount actually on hand and unsold, in each case making separate statements of the amounts of proprietary and general stamps. Each collector will supply his deputies with adhesive stamps, and sell them to other parties within his district who may make application therefor, allowing the same commission as specified above. The collector may require such security from his deputies as he sees fit for the stamps placed in their hands, as he alone is responsible, and is to make returns and payment for them to this office. Orders may be made from time to time for such stamps as are desired, in no case to exceed three-fourths of the penal sum designated in the bond. OP REVENUE STAMPS. -957 Every agent will be charged upon the books of this office with the stamps fiir- nished him, and credited with the amount of each remittance for the sale of stamps, and five per cent, commission on the same." STAMPED PAPEK. An arrangement has been made with tlie American Phototype Company, of New York, to print internal revenue stamps upon bank checks and other instru- ments which may be furnished them by various parties for that purpose. Per- sons ordering will send to this office, as heretofore, the duplicate certificate of deposit in some designated depository, stating what kind of stamps they desire ; an order then will be sent to the phototype company for the amount, adding the same commission as upon general stamps. The price wliich the company shall charge to the public for printing such stamps is to be such as may be agreed upon between themselves and the parties ordering the same ; but is not to exceed one cent for each impression containing not more than six stamps, excepting clear- ing-house receipts, and other documents which ordinarily contain more than six stamps. A contract has also been made with Messrs. Butler & Carpenter, of Philadel- phia, to furnish similar stamps, to be printed on bank checks and other in- struments, from steel plates. The extra expense in the latter case is to be ar- ranged between Butler & Carpenter and the purchasers, subject to the decision of the Commissioner of Internal ' Revenue in case of dissatisfaction with the rates charged. The documents to be stamped should be furnished in sheets, as the stamps could not be conveniently printed in a bound book. All stamps will hereafter be forwarded by express, unless ordered by mail, at the expense of the person oi'dering the same, under a contract with the Adams Ex- press Company, at the following rates, viz : between any two points in the ter- ritory of the Adams Express Company, and reached by it, twenty-five (25) cents per one thousand dollars ; between any two points in the territory of the Southern Express Company, except to points within the States of Arkansas and Texas ac- cessible as aforesaid, thirty-five (35) cents per one thousand dollars, (it being under- stood that the territory of the Southern Express Company includes the States of North and South Carolina, Georgia, Alabama, Mississippi, Louisiana, Texas, Ar- kansas, Tennessee, and that part of the State of Virginia lying south of Richmond and west of Lynchburg ;) between any two points in the State of Texas or in the State of Arkansas, or between any two points severally in these two States re- spectively, reached by the lines of the Southern Express Company, in manner aforesaid, fifty (50) cents per one thousand dollars; between any two points in the territory of another express company than the Adams and the Southern Ex- press Companies, reached as aforesaid, thirty-five (35) cents per one thousand dollars ; between any two points, one of which is in the territory of one express company and the other within the territory of another express company, reached as aforesaid, excluding herefrom the States of Texas and Arkansas, sixty (60) cents per one thousand dollars ; between any two points, one of which is in the State of Texas or Arkansas and the other in any of the other States, eighty-five (85) cents per one thousand dollars. The above amounts in all cases to be com- puted on the face value of the stamps, and any fractional part of one thousand dollars shall be paid for as one thousand dollars. 958 OP RETENDB STAMPS. PKOPRIETAKY STAMPS — SCHEDULE C. Any proprietor of an article named in Schedule C may ftimish a design for a stamp, which, if approved, will he engraved by the government engravers at the cost of the proprietor. In such case the proprietor will be entitled to the commission specified in the 161st section of the excise law, viz : On amounts purchased at one time of not less than fifty nor more than five hundred dollars, five per centum ; on amounts over five hundred dollars, ten per centum. If the designs do not exceed in superficial area 13-16 of an inch for the de- nomination of one and two-cent stamps, or 63-64 of an inch for the denomina^ tion of three and four-cent stamps, these being the sizes established by the office for the above specified denominations, there will be no additional charge to pur- chasers. If, however, proprietors desire (o increase the size of the stamps for the denominations above mentioned, then an additional charge will be made for the additional cost of paper and printing. This additional charge will be ten cents per thousand for stamps of 3 1-8 inches superficial area, and in the same propor- tion for other sizes. All dies and plates will be retained by, and be under the exclusive control of, the government. The general stamp must be cancelled by writing or printing thereon in ink the Initials of the proprietor of the stamped article, and the date, day, month, and year of cancelling ; while the private stamp must be so affixed on the package that in opening the same the stamp shall be effectuaUy destroyed. Where printing in more than one color is desired, the additional expense must be borne by the proprietor. Each stamp must bear the words, or a proper abbreviation of them, " United States internal revenue ;" also, in words and figures, the denomination of the stamp. Manufacturers of friction or other matches, cigar lights, or wax tapers, who desire to avail themselves of the provisions of the 161st section of the law, and receive stamps on a credit of not exceeding sixty days, will be furnished, on ap- plication to this office, with a blank bond in proper form, to be filled up and exe- cuted by them. Manufacturers of proprietary articles will be required to use the general pro- prietary stamps until stamps are furnished from their own designs. All stamps denoting duties under Schedule C, excepting those from private designs, may be used indiscriminately upon proprietary articles. TABLE OF MORTALITY. 959 6.— TABLE OF MORTALITjY", TO BE USED IN ESTIMATING THE PRESENT VALUE OF ANNUITIES, AND OF DOWER AND OTHER LIFE ESTATES. Aqe. Expectation. Age. Expectation. 10 49 46 24 11 48 47 23i 12 m 48 22i 13 46i 45| 49 22 14 50 21* 15 45 51 20i 16 44i 52 19} 17 43J 53 19 18 43 54 18* 19 42* 55 17| 20 41* 56 17* 21 40i 57 16* 22 40 58 15i 23 39i 59 15 24 38} 60 14J 25 38 61 U 26 371 361 62 13i 27 63 13 28 354 64 12i 29 35 65 llf 30 34+ 66 11* 31 33} 67 10} 32 33 68 10* 33 32i 69 9? 34 3li 70 9* 35 31 71 8a 36 30i 72 8t 37 29| 73 7a 38 29 74 7l 7^ 39 28* 75 40 27} 76 6? 41 27 77 el 42 26J 78 6 43 25| 79 5f 44 25A 2*} 80 5 45 The foregoing computation is according to the Carlisle Table of Mortality. There are several bases and estimates made by different men and at different times, among which the various insurance offices exercise their preference. One, compiled by Dr. Wigglesworth, was adopted by the Supreme Court of Massa- chusetts more than fifty years since, as a rule in estimating the value of life estates. (See Estabrook vs. Hapgood, 10 Mass., 313.) The " Combined Experience Table " is also used by many persons, but while insurance companies and parties who are in the daily use of them may desire to know with careful accuracy which is most reliable, this ' Carlisle Table " is 960 TABLE OP MORTALITY. sufiBciently accurate for all the ordinary purposes of business men, and is prob- ably as useful for the purposes of this hook as any one which could be selected. Its use in calculating the value of a life estate may be thus exemplified : A widow is entitled to dower in a parcel of real estate of the value of $10,000, or of which the annual rental is $600. The. heir desires to buy her right of dower. Let him look under the word " Expectation," opposite the year corresponding with the age of the widow^, and he will find the number of years she will probably live. Let him then consider one-third of the annual income of the land, or one-third of the interest of the whole sum for which the land would sell, as an annuity to be paid to the widow during her life. The present value of that annuity will be the sum which in equity he ought to pay her for a release of her right of dower. Thus, if she is 20 years old, it is probable she may live 41^ years, and the present value of an annuity of $200 per year for 40j years will be the sum to be paid. Other uses may be made of the table at the convenience of parties who, for any reason, desire to know what is the probable continuance of any existing healthy human life. TABLE OF OASES. Abbott vs. Hampden Mat. Ins. Co., 293. Abbott vs. Shawmut Fire. Ins. Co., 362, 424. Adams vs. Frolhingbam, 695. Adams vs. Rockingbam Ins. Co., 412. ^tna Ins. Co. vs. Myers, 292. .^tna Ins. Co. vs. Greebe, 366. Mtna. Ins. Co. vs. Tyler, 378, 455, 458. .^tna Ins. Co. vs. Jackson, 408. jEtna Ins. Co. vs. Harvey, 514. Aible vs. North American Ins. Co., 421. Aldermanfs.West of Scotland Ins. Co., 455. Alliance Mut. Ins. Co. vs. Swift, 324, 431, 504. Allen t;^. Charlestown Mut. Ins. Co., 369, 422. Allen vs. Scott, 695. Ames vs. New York Un. Ins. Co., 387, 478. Amesbury vs. Bowditch Mut. F.I. Co., 476. American Bank v^'i. Baker, 655. American Print Works vs. Lawrence, 793. Ammidown ^^v. Bull, 696. Amoskeag j\Ianufacturing Co. vs. Spear, 889. Andrews vs. Union Mut. Ins. Co., 333. Appleby rs. Fireman's Fund Ins. Co., 397. AppJeton Mut. Fire Ins. Co. ?'a\ Jesser, 508. Ashby vs. Eastern Railroad Co., 695. Atlantic ^Mat. Fire Ins. Co. v9. Young, 505. Atlantic Mat. Fire Ins, Co, vs. Fitzpatrick, 508. Atlantic Ins. Co. vs. Saunders, 508. Attorney Gen'l vs. Merrimac Mf g Co., 700. Atwill ?'.«. Fen-ett, 883. Audubon vs. Excelsior Ins. Co., 436. Augusta Ins. Co. vs. French, 508. Austin vs. Drew, 333. Aveson vs. Kinniard, 543. 556. Ayers vs. Hartford Fire Ins. Co., 360, 411, 447, 468. B. Babcock vs. Montgomery Mut. Ins. Co., 333. 61 Bagster vs. Portsmouth, 574. Bailey vs. Crane, 653. Baltimore Fire Ins. Co. vs. McGowan, 435. Baltimore Fire Ins. Co. vs. Loney, 441, 468. Bank of United States vs. Bank of Georgia, 896. Bangs vs. Gray, 608. Bangs vs. Hull, 653. Bangs vs. Duckiugfield, 508. Bangs vs. Skidmore, 502. Baptist Ch. vs. Brooklyn Fire Ins. Co., 322. Barre Boot Co. vs. Milford Mut. Fire Ins. Co., 362. Bartlett vs. Un. Mut. Fire Ins. Co., 445, 446. Bartlettrs. Gre(.'nleaf, 770, 776. Barnes vs. Union Sfut. Fire Ins. Co., 446. Barrett Vf. Union Mut. Fire Ins. Co., 470. Barney vs Grillln, 616. Barnard vs. Bartholomew, 655. ■ Barrow vs. Richards. 700. Battles vs. N. Y. Co. Mut. Fire Ine. Co., 361. Baxendale rs. Harvey, 367. Baxter ?js. Maseasoit Ins. Co., 436. Baxter vs. Abbott, 853. Bayard v.t. Shunk, 259. Bay State Mut. Fire Ins. Co. vs. Sawyer, 508. Beals vs. Home Ins. Co., 345. Beals vs. Park Ins. Co., 368. Beebe vs. Hartford Mut. Ins. Co., 371-372. Bell vs. Morrison, 652. Belknap vs. Gleasou, 655, 659. Berais cs. Conn. Mut. Life Ins. Co., 533, Bennett vs. Briggs, 236- Benedict ns. Ocean Ins. Co., 367, 429. Benedict vs. Hart, 775. Berkshire Woolen Co. vs. Proctor. 192. Bibend rs. Liverpool and London Fire Ins. Co., 416. Bigler vs. N. Y. Central Ins. Co., 352. 380. Bigelow vs. Collamor. 77"^. Bilbrough lis. Metropolitan Ins. Co., 304. 962 TABLE OP CASES. Billings m. Tolland Co. Mut. Ins. Co, 403. Binns vs. Woodrnff, 880, 883. Blake vs. Exchange Mut. Ins. Co., 362, 381, 439, 440, 450. Blakely vs. Phoenix Ins. Co., 451. Blanchard vs. Atlantic Mut. Fire Ins. Co., 470, 5SS. Blanchard vs. Bnrrell, 627. Blood m. Howard Fire Ins. Co., 392. Bloss vs. Bloomer, 889. Boehen vs. Williamsburg City Ins. Co., 321. Bodlc 1)s. Chenango Co. Mut. Ins. Co., 413, 469. Boggs vs. American Ins. Co., 373. Bogcll vs. Peoples' Mut. Fire Ins. Co., 429. Bonner vs. Home Ins. Co., 460. Borden vs. Hingham Mut. Ins. Co., 327, 497, 498. Borradaile vs. Hunter, 562, 572. 573. Boston Water Power Co. vs. Gray, 606. Boswell vs. Goodwin, 747. Bouton vs. American Mut. Life Ins. Co., 321. L Bowman vs. Pacific Ins. Co., 430. Brady vs. Northwestern Ins. Co., 342, 432. Braynard vs. Marshall, 627. Braiuard vs. B. & N. Y. Cent. Railroad Co., 692. Braman vs. Downe, 698. Brewer vs. Chelsea Mut. Fire Ins. Co., 323. Breastead vs. Farmers' Loan and Trust Co., 5C3, 573. Brewer vs. Worthington, 698. Brinley vs. Nat'l Ins. Co., 340. Brichta vs. La Fayette Ins. Co., 414, 468. Bridge vs. Wellington, 691. Brigham vs. Tillinghast, 616. Brown vs. Maryland, 236. Brown vs. Royal Ins. Co., 342. Brown vs. Williams, 495, 419, 494. Brown vs. Insurance Companies, 466. Brown vs. Kings Co. Fire Ins. Co., 442. Brown vs. Roger Williams Ins. Co., 473, 473. Brown vs. Savannah Mut. Ins. Co., 473. Brown vs. Thomaston Ins. Co., 601. Brown vs. Bridges, 653. Brown vs. Thissell, 696. Brown vs. Brown, 861. Brough vs. Whitmore, 482. Brookmnn vs. Metcalf, BftS. Brooks vs. Jones. 686. Buckley w. Garrett, 411. Buchanan vs. Ocean Ins. Co., 528. BufTalo Steam Engine Works vs. Sun Mut Ins. Co., 293. Buffe TO. Turner, 371. Bullard vs. Goffe, 686. Bumstead vs. Dividend Mut. Ins. Co., 453. Burritt vs. Saratoga Co. Mnt. Ins. Co., 361. Burroughs vs. State Mut. Life Ins. Co., 677. Burroughs vs. State Ass. Co., 581, 685. Burgc vs. Smith, 697. Burgess vs. Burgess, 889. Butler vs. Pcnn, 808. c. Cady vs. Shcpard, 749. Campbell vs. Charter Oak F. and M. Ins. Co., 862, 451. Campbell vs. Adams, 497, 502. Carpenter vs. Providence Washington Ins, Co., 297, 307, 309, 379, 380, 384, 413, 414. Carpenter vs. Underwood, 616. Carter vs. Boehm. .374, easier vs. Conn. Mnt. Life Ins. Co., 561. Carroll vs. Charter Oak Ins. Co., 415, 433. Carbrey vs. Willin. 694. Carroll vs. Boston Marine Ins. Co.. 413. Case vs. Hartford Fire Ins. Co., .^157. Catlin vs. Springfield Fire Ins. Co., 364, 442, 448, 453. Cazenova vs. British &c. Ass. Co., 561. Chase vs. Hamilton Ins. Co., .367, 43-3. Chaifee vs. Cattaraugus Co. Mut. Ins. Co., 369. Chandler vs. Worcester Mut. Fire Ins. Co., 442. Chapman vs. Stcadman, 093. Chatham vs. Brainard,^94. Champlain vs. Pendleton, 694. Chase vs. Ml 'g Co., 794. Cheney vs. Arnold, 798. Child vs. Starr, 698. Cholmondeley vs. Clinton, 302. Church in Brattle Square o*. Grant, 676. Cinque Mars vs. Equitable Ins. Co., 463. City Fire Ins. Co. vs. Corlies, 350. Citizens' Ins. Co. vs. McLaughlin, 427. Citizens' Ins. Co. vs. Sortell, 508. Clark vs. Sibley, 302. Clark vs. Manufacturers Ins. Co., 363. Clark vs. Union Mut. Fire Ins. Co., 370. Clark vs. Hamilton Mut. Ins. Co., 372, 381. Clark vs. New England Mut. Fire Lis. Co., 380, 382, 406, 444. Clark vs. Houghton, 749. Clayton to. Wandell, 798. Clary to. Protection Ins. Co., 352. Clendening vs. Church, 528. Cleft, vs. Schwabe, 568, 573. Clementson to. Williams, 650. Cleveland vs. Hallet, 699. Cluff TO. Mut. Benefit Life Ins. Co., BI5. Cobbold vs. Coryell. 236. Colib TO. Musscy, 839. Cockerill to. Mut. Ins. Co., 407. Cochrane vs. Fisher, 459. Codington vs. Davis, 149. TABLK OP CASES. C63 Codmnn vf. Edmons, nM. Codman vs. Evans, 692, 693. Coggs vs. Bernard, 1S9. Cohen !■,«. Virginia, 235. Columbian Ins. Co. vs. Lawrence, 290, 867, 420, 4oi;, 873, 413, 442, 464, 468. Colnmbia Ins. Co. vs. Cooper, 860, 502. Coles rs. Iowa State Mut. Life Ins. Co., 390, 501. Collins vs. Charlcstown Mut Fire Ins. Co., 424. Coldspring vs. Tolland, 693. Commonwealth Ins. Co vs. Mouninger, 360. Commonwealth <>'. Eoxbury, 693. Commercial Bank vs. Cunningham, 747, Comins w. Newton, 749, Commonwealth ;vf. Drew, 869. Commonwealth vs. Mehetable Mash, 870. Commonwealth vs. York, 870. Connot vs. Elliott, 2.35. Conway vs. Taylor, 235. Conover vs. Mut. Ins. Co., 409, 418, 469. Conn. Mut. Life Ins Co. vs. Burroughs, 577, 683. Convei-se vs. Converse, 853. Cooley vs. Wardens, 236. Cook vs Black, 582. Cornell vs. Leroy, 443, 452, 455. Cornell vs. Milwaukee Mut. Fire Ins. Co., 447. Cray vs. Hartford Fire Ins. Co., 472. Crafts vs. Union Mut. Ins. Co., 470. Crawford vs Hunter, 528, 529. Cramer !)s Cook, 772. Crosby vs. Franklin Ins. Co., 852. Crosby vs. Baker, 749. Crocker vs. Peoples' Mut. Fire Ins. Co., 806. Crbmil vs. Kentucky and Lexington Mut. Ins Co., 440 Cromwell r*. Brooklyn Fire Ins. Co., 415. Cross vs. Andrews, 574. Critch vs. Crocket, 776. Cumberland Valley Mut. Pro Ins. Co. vs. Mitchell, 471, 415. Curiy vs. Commonwealth Ins. Co., 870, 431. Cnrtncy vs. N. Y, City Ins. Co., 415. Currier vs. Barker, 776. CuiTler vs. Parley, 776. Cashing vs. Newbnryport, 236. Cutts vs. Gilbert, 860, Conigland vs. Insurance Co., 502. D. Dadman Mf 'g Co. vs. Worcester Fire Ins. Co., 409. Dalby vs. The India and London Liffe Ass, Co,, 626, 532, 635, 536. Dana vs. Middlesex Bank, 696. Davis vs. Quincy Mut. Fire Ins. Co., 294 420. Davis vs. Herring, 655. David vs. Hartford Ins. Co., 381. Davenport j)s. Peoria M. and F. Ina. Co., 486. Day vs Conway Jns. Co., 867. Day vs. Charter Oak Fire and Marine Ins, Co., 4';6. Dean vs. Amcv, Mut. Life Ins. Co., BCi'J, 503, DeForest vs. Fulton Fire Ins. Co., 468. DeForest vs. Hunt, 655. DcLonguemare vs. Tradesman's Ins. Co. 359. Denny vs. Conway Stock and Mut. Ins. Co., 362. Denn vs. Wright, 698. Dephaba vs. Luijlow, 628, 629, Desilver vs. State Mut, Ins. Co., 460, Dexter vs. Manley, 773, Dickenson vs. Winchester, 199. Dietz vs. Mound City Miit. Fire Ins, Co,, 383. Dinsmore vs. Bradley, &2~. Dinsmore vs. Dinsmore, 656, Dix vs. Mercantile Ins, Co., 411, Doane vs. Willcutt, 693. Doaston vs. Payne, 69-3. Dobson vs. Lotheby, 367, 426. Dodge Co Mut. Ins. Co. r.-. Rogers, 308. Donnison vs. Thomaston Mut. Ins, Co., 371. Donalson vs. Manchester Mut. Ins. Co., 378. Donnelley vs. Corbett, 027. Dow vs. Plainer, 616 Drinkwatcr t!^. London Ass. Co., 348. Dufaur vs. Professional Life Ass. Co., 563, 573. Dunham vs. Lamphier, 286. Dunham vs. Waterman. 616. Duncan vs. Sun Fire Ins. Co., 430. Dunlap vs. Stetson, 693. Dnpin vs. Mut. Ins. Co., 850. Durar vs. Hudson Co. Mut. Ins. Co., 605. Dyer vs. Sanford, 698. Dutton vs. Gerrish, 773. E. Eadie vs. Slimmon, 575, 578, 585. Eagle Ins. Co. vs. La Fayette, 473. Egan vs. Mutual Ins, Co,, 494. Elliott vs. Hamilton Mut, Ins, Co., 361, Elliott ra.. Stone, 770, 776. Emery vs. Kempton, 829. Emerson vs. Davies, 881, 887. Emmott vs. Slater Mut. Fire Ins. Co., 432. Emmett vs. Heed, 607, Everett vs. Desborough. 643. Mc parte Thompson, 857. Estabrook vs. Hapgood, 959. Fabyn vs. Union Mut. Fire Ins. Co., 431. Fales vs. Conway Mut. Fire Ins. Co., 425, 964 TABLE OP CASES. Farmers and Mechanics Ins. Co. i)s. Sim- mons, 480. Farmers' Mut. Fire Ins. Co. vs. Marshall, 506. Farmers' Bank vs. Clark, 655. Pamam vs. Brooks, 660. Farina vs. Silverlock, 889. Fayette Mut. Fire Ins. Co. vs. Fuller, 433, 508. Fell m. AIcHenry, 505. Felch vs. Taylor, 698. Ferris vs. North Amer. Fire Ins. Co., 469. Fetridge vs. Welles, 889. Fernandez vs. Merchants' Mut. Ins. Co., 348. Fifty Associates vs. Howland, 775. Finley vs. Lycoming Ins. Co., 411. Fire Association of Philadelphia vs. Wil- liamson, :;',)7, 430. Fire Department of Milwaukee vs. Helfen- stein, 514. Fisher es. Smith, 692. Fitzsimmons vs. City Fire Ins. Co., 439. Flannaganus. Camden Mut. Ins. Co., 470. Fletcher v^. Commonwealth Ins. Co., 421. Fogg y,^. Middlesex Ins. Co., 417. Folsomt's. Belknap Co. Mut. Ins. Co., 470. Folsom vs. Marsh, 881. Foot, Nash & Co. vs. Buchanan & Co., 889. Forbes vs. Amer. Mut. Life Ins. Co., 533, 562. Forbes vs. Agawam Mut. Fire Ins. Co., 385. Forbush vs. Western Mass. Ins. Co., 441. Forbush vs. Lombard, 695. Foster vs. Davenport, 2.35. Foster vs. Peyser, 770. 773. Fowler vs. iBtna Ins. Co., 367. Fowler vs. N. Y. &c. Ins. Co., 685. Fowler vs. Bott, 771, 772. Foy rs. Troy and Boston Railroad Co., 614. Franklin Fire Ins. Co. vs. Hewitt, 281. Franklin Fire Ins. Co. vs. Coates, 293, 448. Franklin Fire Ins. Co. vs. Updcgraff, 367, .381.471. Frankjin Fire Ins. Co. vs. Massey, 432. Franklin Ins. Co. vs. Findlay, 291. Franklin Ins. Co. »«. Drake, 378. Franklin Fire Ins Co. vs. Hamill, 452. Franklin vs. Atlantic Fire Ins. Co., 418. Fraternal Mut. Life Ins. Co. vs. Applegate, 560. Frederickeon vs. Louisiana, 236. French vs. Chenango Co. Mut. Ins. Co., 369. French as. La Fayette Ins. Co., 472. Friedland vs. London Ass. Co., 367. Frisbie vs. Fayette Mut. Ins. Co., 395. Frost vs. Saratoga Co. Mut. Ins. Co., 368. Fullam vs. New York Ins. Co., 472. Fuller vs. Boston Mut. Fire Ins. Co., 497. Fuller TO, Enby, 770. G-. Gallaghan vs. Union Mut. Ine. Co., 361. Garcelon vs. Hampden Fire Ins. Co., 366. Gardner vs. Hamilton Mut. Ins. Co., 504. Gardner vs. Newbury, 793. Gardner vs. Gardner, 856. Gates vs. Madison Co. Mut. Ins. Co., 368, 372, 392, 404, 442. Gaylord vs. Lamar Fire Ins. Co., 419, Geach vs. Ingalls, 540. Geisek vs. Crescent Mut. Ins. Co., 503. George A. Hawkins and others, 627. Gibbons vs. Ogden, 2.35. Gilman vs. Philadelphia, 236. Gilbert?;*. North Amer. Fire Ins. Co., 408, 452. Giles vs. Morse, 697. Giles vs. Boston F. and W. Soc, 700. Glendale Woolen Manuf. Co. ?;s. Protection Ins. Co., 366, 480. 558. Glenn vs. Lewiy. 401. Gloucester Mannf. Co. vs. Howard Fire Ins. Co.. 364, 366. Godsall r.s. Boldero, ,308, 524, 625, 582, .536. Goklytone vs. Osborne, 465. Goodspeed vs. East Haddam Bank, 244. Goodall vs. New England Mut. Fire Ins. Co., 386, 470. Gooden vs. Amoskeag Fire Ins. Co., 477. Goss vs. Citizens' Ins. Co., 429. Gould vs. York Co. Mut. Ins. Co., 365, 426. ' Goyt vs. Nat. Protection Ins. Co., 414, 431. Grant vs. Lexin^^ton Ins. Co., 477. Grant vs Chase, 696. Gray vs. Blanchard, 700. Gray rs. Russell, 881. Great Falls Mut. Ins. Co. vs. Harvey, 508. Gufihee vs. Eddy, 616. H. Halleckrys. Commercial Ins. Co., 321. Hall vs. People's Mut, Fire Ins, Co., 401, Hall v.i. Robinson, 614, Halford vs. Kymer, 684, Hale vs. Lawrence,' 793, 'Hammond ^'s, American &c. Life Ins. Co,, , 323, Hamilton Mut, Ins. Co, vs. Hobart, 608, Hamilton Mut, Ins, Co. vs. Parker, 508, Hamilton vs. Lycoming Ins. Co., 501. Hart vs. Western Railroad Co,, 290, Hardy vs. Union Mut. Fire Ins. Co., 362. Harris vs. Columbian Mut. Ins. Co.. 395. Harris vs. Ohio Ins. Co., 440. Harrison vs. City Firo Ins, Co,, .398, Hartford Fire Ins. Co. vs. Ross, 411, TABLE OF CASES: 965 Hartforcl Protection Ins. Co. vs. Ilarmer, 421, a-i Hartley, et al rs. Bass, 461. Hai'rishm-g Bank !'.«. Poster, 660.. llardins; iS. Cobiirn, 749. Ilartean is. ITartcau, 811. Haskins vs Ilamiltim Mat. Ine. Co., 340. Haskell rf. Blair, 615. Hathornc m. Kinff, 853. Hatch rs. Dwlght, C!)3. HavGrhill Ins. Co, rs. Prcscott, 514. Havens iw. Hnssey, 610. Hawkes vs. Dodge Co. Mut. Ins. Co., 399. Haywaitl vs. Liverpool and London F. and L. Ins. Co., a55. Hayward vs Northwestern Ins. Co., 429. Hayden is. Stoughton, 700. Hebrook vs Finney, 698. Henson i\< Blackwell. 525. Henderson vs New Orleans, 793. Herkimer rs. Eice, 29.3. Herrick vs. Union Mut. Fire Ins. Co., 397. Heyer i-x. Pruyn, 659. Hickey v.-< Anchor Ins. Co., 475. Hillier t-.s. Alleghany Mnt. Ins. Co., 334, 337. Hills i*.s. Farringtou, 747. Hobby i-.<. Dana, 392. Hobbes vs. Francais, 889. Hodgfcins i-*;. Montgomery Mut. Ins. Co., 373, 450. Hoffman rs. Mtna Fire Ins. Co., 407, 417, 411, 443, 467, 481. Holmes vs. Charlestown Mut. Fire Ins. Co . 480, 497. Honuick v-i. Phoenix Ins. Co., 480. Hood vs. New York and New Haven Rail road Co., 243. Hookset rs. Concord Railroad, 292. Hooper w. Hudson River Ins. Co., 413. Hood vs. Hartford Fire Ins. Co., 557. Hooper vs Accidental Death Ins. Co., 594. Hope Ins Co. rs. Bvolaskey, 422. Honvitz vs. Equitable Mut. Ins. Co., 389. Hosmer rs Sargent, 749. Houghton rs. Manufacturers' Mut. Fire Ins. Co., .359, 364, 494. Hough vs. City Fire Ina. Co., 399. 423. Hovey vs. American Mut. Ins. Co., 366. Howard rs. Albany Ins. Co., 407, 527. Howard Ins. Co. vs. Scribner. 440. Howard rs. Franklin Mut. Fire Ins. Co., 508. Howard rs. Merriam. 776. Rowland rs. Coffin, 771. Hubbard rs. Hubbard. 857. Huckman rs, Femie, 543. Hultain rs. Munigle, j776. Huntley rs. Bcecher, 505. Huntley vs. Merrall, 505. Hunt vs. Thompson, 77(1. Ilutchins rs. People's Mut. Ins, Co., 443. Hyde rs. Lynde, 324. 504. Ilygum rs. jEtnalns. Co., 439. Hynds rt. Schenectady Co. Mut. Ins. Co., 42(i, ■427. Hodsdon vs. Guardian Life Ins., 602. I. Independent Mut. Ins. Co. r.s. Agnew, 317. Inland Ins. and Deposit Co. rs. Stauffer, 388,446, Ininan t-s. "Western Fire Ins. Co., 445. Iii re People's Equitable Fire Ins. Co. 508. In re Goods of Arthur White, 857, Ins. Co. rs. Drake, 291. Ins Co, rs. Chase, 294. lus. Co. vs. Jarvis, 324, 506. Ins. Co rs Webster, 503. Iowa State Ins. Co, rs. Proseer, 508. Ipswich Petrs,, 693. Irving vs. Excelsior Fire Ins. Co., 422, 453. J. Jackson rs. Mass. Mut, Fire Ins. Co., 379, 380, 382. Jackson rs. Farmers' Mut. Fire Ins. Co., 470. Jackson rs. Hathaway, 603. Jacobs rs; Eagle Mut. Fh:e. Ins. Co., 3ti2, James rs. Sisson. 508. James rs. Marvin. 861. Jamaica Pond Aqueduct Co. vs. Chandler, 695. Jefferson Ins. Co r,s. Cotheal, 359. Jennings rs. Chenango Mut. Ins. Co. 367, 404, 557. Jessell vs. Williamsburg, 468. Jewell rs. Draper, 698. Johnson rs. West of Scotland Ins. Co., SU. Johnson rs. Berkshire Mut. Fire Ins. Co., 442. Johnson rs. Johnson, 686. Johnson rs. Jordan, 695. Johnson cs, Rayner, 695. Jones rs Smith. 514, Jones rs. Provincial Ins. Co., 559. Jones vs. Moore, 652. Joyce vs. Maine Ins. Co., 397. Jube rs. Brooklyn Fire Ins. Co., 463. Judd vs. Ives, 627. Juhel rs. Church, 528. K. Keeler rs. Niagara Ins. Co., 411, 417. Keenan rs. Dubuque Mut. Fire Ins. Co., 389. Keith vs. Quincy Mut. Fire Ins. Co., 398. 96t) TABLE OF CASES. Kelly vs. Troy Fire'tns. Co., 368, 471. Kelly vs. Worcester Ins. Co., 394. Kelsey vs. Universal Life Ins. Co., 651. Kentucky and Louisville Mut. Ins. Co. vs. Southard, 359. Kennedy vs. St. Lawrence Co. Mut. Ins. Co., 381. Kendall vs. New England Carpet Co., 616. Kendall fs. Munn, 691. Kenniston rs. Merrimac Mut. Ins. Co., 333. Kenney vs. Kenney, 853. Kctchum vs. Protection Ins. Co., 477. Kibbe vs. Hamilton Mut. Ins. Co., 4S4. Kill vs. HoUister, 339, 465. Kimball vs. Howard Fire Ins. Co., 387. King vs. State Mut. Fire Ins. Co., 897, 298, 309, 532. Kingsley vs. New England Mut. Ins. Co., 469, 609. King vs. Stetson, 698. King vs. Parker, 699. Kingeley vs. Ames, 747. Knight vs. Wilder, 693. Lafayette Ins. Co. vs. French^ 514. Lamotte vs. Hudson Kiver Fire Ins. Co., 480. Lambkin vs. Ontario M. and F. Ins. Co., 445. Lampkin vs. Western Ass. Co., 455, 478. Lane rs. Maine Mut. Fire Ins. Co., 408, 410. Langhton vs. Atkins, 861. Laurent vs. Clmtham Fire Ins. Co., 326. Lawless vs. Tenn. M. and F. Ins. Co., 402. Leadbetter vs. JEtmi Ins. Co., 456, 457. Learned vs. Cutler, 697. Leavitt vs. Fletcher, 772, 773. Leather Cloth Co. vs. Amer. Leather Cloth Co., 889. Lee vs. Howard Fire Ins. Co., 393, 408. Leggett vs. JStna Ins. Co., 427. Leishman vs. White, 770. Leonarda vs. Phcenix Ins, Co., 332. Leavitt vs. Western M. and F. Ins. Co., 379. Levy vs. Baillie. 471. Lewis vs. Monmouth Mut. Fire Ins. Co., 451. Liddle vs. Market Fire Ins. Co., 434. Light vs. Goddard, 095. Liscom vs. Boston Mut. Fire Ins. Co;, 380. Litchfield vs. White, 616. Little vs. Gould, 883. Livermore vs. Aldrich, 691. Lively vs. Haswell, 861. Loehner vs. Home Mut. Ins. Co., 401. Long Pond Mut. Fire Ins. Co. vs. Hough- ton, 326, 506, 508. London Railway Co. vs. Glynn, 468. Long vs. Hammond, 027. Longhurst vs. Star Ins. Co., 47.3. Longhurst>«s. Conway Fire Ins. Co., 476. Loomis's Administrator vs. Eagle Life and Health Ins. Co., 631, 6C3, 537. Loring vs. Mass. Ins. Co., 470. Loring vs. Thomdike, 798. Lord vs. Ball, 618, 52S, 533. Lothrop vs. Greenfield Stock and Mat. Fire Ins. Co., 606. Louisiana Mut. Ins. Co. vs. New Orleans Ins. Co., .365. Loud vs. Citizens' Mut. Ins. Co., 394, 396. Lounsbury vs. Pro. Ins. Co., 426, 452. Lowell vs. Middlesex Fire Ins. Co., 470. Luling vs. Atlantic Mut. Ins Co. 603. Luscomb vs. Ballard, 839. Lycoming Ins. Co. vs. Mitchell, 366, 416. Lycoming Ins. Co. vs. TJpdegraff, 452. Lynch vs. Dalzell, 413, 627 Lynn vs. Burgoyne, 504. Lyon vs. Commercial Ins. Co., 372. Leland vs. Felton, 838. M. Macomber vs. Howard Fire Ins. Co., 428. Madison Ins. Co. vs. GrilSn, 460. Maine Mut. Ins. Co. vs. Neal, 508. Malleable Iron "Works vs. Phcenix Ins. Co., 3GS. Mann vs. Herkimer Co. Mut. Ins. Co., 469. Marks vs. Ilamilton, 290. Marblchead Jliit. Fire Ins. Co. vs. Under- wood, 325, 5C3. Marshall vs. Columbian Mut. Ins. Co., 419. jMarion rs. Great Republic Ins. Co., 471. Marsh vs. Putnam, 627. IMarPh vs. Billings, 880. Marblehead Mut. Fire Ins. Co. vs. Hay ward, 508. Masters vs. Madison Co. Mut. Ins. Co., 3(»8, 408. Mason vs. Harvey, 453. Mass. Turnpike Co. vs. Field, 660. Mayor of New York vs. Miln, 236. Mayor of New Yorku^. Lord, 350, 703. Mayor of New York vs. HamUtou Ina. Co., 427, 428, 473. May vs. Breed, 627. Mayhew vs. Norton, 693. Maynafd vs. Rhode, 543. McFarlan vs. Chase, 776. McGuire vs. Mass., 236. McKie vs. Judd, 614. McLaughlin vs. Washington Co. Ins. Co., 452, 456. McMahon ^'5, Portsmouth M. and F. Ins. Co., 441. Mead vs. Northumberland Ins. Co., 402, 479, TABLK OF CASKS. 967 Mechanics' Tire lofl. Co. vs. Nichols, 440 468. Mechanics' Banlc vs. New Torlc and N. n. Railroad Co., 845. Modway vs. Needham, 799. Mellon i'.'. Hamilton Fire Ins. Co., 887. Melvin vs. Locks and Canals, 695. Mendell is. Delano, 696. Merchants' and Manufactnrers' Mnt. Ins. Co. i-.s. Washington Mnt. Ins. Co., 373, 400. Merrill vs. Farmers' and Mechanics' Mut. Fire Ins. Co., 424. Merrick vs. Gcrmania Fire Ins. Co., 438, 481. Merchants' Mnt. Ins. Co. vs. Rey, 507. Merchants' Ins. Co. vs. Edward, 483. JU-rryfield vs. Cobleigh, 700. Mich. Cent. Railroad Co. vs. Ward, 193. Milligan vs. Equitable Ins. Co., 293. Jlillandon vs. New Orleans Ins. Co., 354, 356. Millandon vs. Atlantic Ins. Co., 466. Miller vs. Western Farmers' Mut. Ins. Co., 371, 400. r.Iiller vs. Maine Ins. Co., 433. Miller vs. Eagle Life and Health Ins. Co., 537. Mills vs. Barber, 616. Miles vs. Conn. Mut. Life Ins. Co., 500. Millet vs. Fowle, 694. Millar vs. Taylor, 881. Mitchell vs. Lycoming Mut. Ins. Co., 383, 890.501. Moadinger rs. Mechanics' Fire Ins. Co., 351. Montgomery i-.^. Firemen's Ins. Co., 333. Monson vs. Sluspratt, 510. Montague vs. Dawes, 747. Moore v.f. Transportation Co., 2.35. Moore vs. Protection Ins. Co., 426, 427, 428, 460, 472, Moore vs. Bank of Columbia, 652. Moody vs. Wright, 749. Moses vs. Green, 236. Morrill r,^. Irving Fire Ins. Co., 345. Morrison vs. Tenn. M. and F. Ins. Co., 421. Morton vs. Chandler, 655. Morgan vs. Moore, G86. Moses vs. B. and M. Railroad Co., 193. Mowry vs. Todd. 413. Mulfrey vs. Shawmut Mut. Fire Ins. Co., 323. Murdock vs. Chenango Co. Mut, Ins. Co., 304, 509. Murray vs. Judson, 616. Mut. Ins. Co. vs. Deale, 365, 371. Mut. Ass. Co. vs. Mahon, 421. Mut. Safety Ins. Co. vs. Hone, 440. Myers vs. Keysone Mut. Life Ins. Co., 585. N. Nathan vs. Louisiana, 2S0. Nelson vs. McGeffeir, 801, Neviiis vs. Rockingham Mut, Ins, Co,, 470. New York Ice Co. vs. Northwestern Ins. Co., 281. New York Central Ins. Co. vs. National Pro. Ins. Co,, 321,444. Now York Fire Ins. Co. vs. Delavan, 346. New York Bowery Ins. Co, vs. New York Fire Ins. Co., 371, 374. New En^Tland Mut, Fire Ins. Co. vs. Bel- knap, 324, 504, 508. New England F. and M. Ins. Co. vs. Wet- more, 3B3, 433. New England F. and M. Ins. Co. vs. Schet> tier, 383. New England F. and M. Ins. Co. vs. John, 511. New England Mut. Fire Ins. Co. vs. But- ler, 504, 510. New Cattle Fire Ins. Co. vs. McMoran, 367. New Hampshire Mut, Ins, Co. vs. Hunt, 508. New England Jewelry Co. vs. Merriam, 098. New Ipswicli Factory vs. Batchelor, 095. Newby vs. Reed, 438. Newmark vs. London and Liverpool L. and F. Ins. Co., ,'}47, 462. Newhall vs. Ireson, 692. Nicol vs. American Ins. Co., COS. Nichols vs. Fayette Mut. Fire Ins. Co., 425, 5S6. Nicholson vs. Leavitt, 616. Nicholson vs. Munigle, 7T0. Nicoil i-.s. New Yorkaud Erie Railroad, 700, Nilcs vs. Patc'.i, 693, Noonan vs. Hartford Fire Ins. Co., 457. Norway Plains Co. vs. B. M. Railroad Co., 193. Norton vs. Rensselaer and Saratoga Ins. Co., 4,:3, North vs. Turner, 614. Northwestern Ins. Co. vs. Phcsnix Oil and Candle Factory, 473, Norton vs. Coolv, 627. Nute vs. Hamilton Mut. Ins. Co., 510. Nevitt vs. Clark, 90. o. Ogden vs. Saunders, 627. Oldman vs. Berwick, 454, Oliver Lee Bank vs. Talcott, 616. O'Linda vs. Lothrop, 093. O'Neill vs. Buffalo Fire Ins. Co., 403, 426, 427, 457. Orreli vs. Hampden Fire Ins. Co., 411, 586. 968 TABLE OP CASES, P. Palmer m. Merrill. 582. Parker vs. Bridgeport Ins. Co., 366, 610. Parker vs Parker, 688. Parker V8 Fraraingham, 693. Parker m. Bennett, 696. Parker vs. Nightingale, 700. Parks m General Int. Ass. Co., 468. Parke vs. Loomis, 695. Parish Will Case, 854. Patapsco Ins. Co vs. Coulter, 334, 337. Patrick vs. Farmers' Ine. Co., 446, 473. Patten vs. Deshon, 771. Patterson vs. Boston, 773. Peacock vs. New York Ins. Co., 453, 544. Peabody vs. Wash Co Mut. Ins. Co., 470. Peck vs. N. London Mut. Ins. Co., 387, 422. Pock vs. Hibhard, 627. Peck vs. Bottsibrd, 655. Peck vs. Smith, 694. Peck vs. Cary, fi.54. Penn vs. Wheeling Bridge, 236. Pendar vs. American Mut. Ins. Co., 384, 390. Pendergast vs. Com. Milt. Mar.Ins. Co., 509. Peoria M. and F. Ins, Co. vs. Lewis, 352, 365, 438. Peoria M. and F. Ins. Co. vs. Hall, 430, 473. Peoria M. and F. Ins. Co., vs. Hervey, 433. Peoria M. and F. Ins. Co. vs. Whitehill, 474. People vs. Beigler, 414. People vs. Thenber, 514. Peoples' Ins. Co. vs. Spencer, 430, 435. Peoples' Equit. Mut. Ins. Co. ?jfi. Arthur. 50&. Peoples' Equit. Mut. Ins. Co.vs. Babbitt, 508. Peoples' Mnt. Fire Ins. Co. rs.Wescott, 508. Percival vs. Maine M. M. Ins. Co., 366. Perrln vs. Protection Ins. Co.. 357. Perry Ins. Co. vs. Steward, 408. Perry vs. Mercliants' Ins. Co., 414. Perkins vs. Nichols, 691. Pettengill vs. Porter, 696. Pettis vs. Kellogg. 749. Philbrook vs. New Eng. Mut. In. Co., .360, 380. Phelps vs. Gebhard Fire Ins. Co., 453. Phillips ?Js. Merrimack Mut. F. Ins Co., 417. Phillips w. Protection Ins. Co., 444, 462,461. Phillips vs. Knox Co. Mut. Ins. Co., 419. Philadelphia .Asf. &c. vs. Wood, 514. Phillips vs Bowers, 692. Phoenix Ins. Co. vs. Taylor, 427, 430. Phoenix Ins. Co. vs. Gurnce, 281. Pierpont vs. Fowler, 888, 884. Pike vs. Brown, 698. Pine vs Merchants' Mut. Ins. Co., 503. Planch vs. Fletcher Douglass, 285. Poe vs. Duck, 627. Pope vs. Cnrll, 881. Pollard vs. Somerset Mut. Fire Ins. Co., 409. Portland Ml'g Co. vs. Fox, 606. Post vs. Mine. Ins. Co., 433. Potter vs. Out. & Livings. Mut. Ins. Co., 385. Powell vs. M. and B. Mf 'g Co , 697. Pratt vs. Atlantic & St. Law E. R Co., 292. Presbry vs. Williams, 657. Prevot vs. Grenaux, 236. Prickett vs. Hitter, 776. Protection Ins. Co. vs. Harmer, 366, 430. Protection Ins. Co. vs. McPherson, 457. Provincial Ins. Co. vs. iEtnalns. Co., 478. Putnam vs. Putnam, 799. Q. Queen vs. Millis, 798. B. Rafael vs Nashville M. & F. Ins. Co., 362. Rafferty vs. New Bruns. Fire Ins. Co., 436. Randall vs. McLaughlin, 696. Rathbone vs. City Fire Ins. Co., 390. Eawles vs. Am. Mut. Life Ins. Co., 534, 544, 545, 546. Rawson vs. Uxbridge, 700. Head vs. Hurst, 649. Reed vs. Canfield, 901. Reichard vs. Manhattan Ins. Co., 660. Riehmondville Union Seminary vs. Hamil- ton Mut. Ins. Co., 361, 440. Rice vs. Tower, 402, 409. Rice vs. Stone, 614- Richards vs. Protection Ins, Co., 427. Richardson vs. Bigelow . 695. Ripley vs. iEtna Ins. Co.. .366, 473, 474, 180. Roach vs. New York and Brie Ins. Co., 473. Roarty vs. Mitchell. 747. Roberts vs. Traders' Ins. Co., 305, 379. Robins vs. Crowder, 616. Rodgers vs. Nowill. S.S9. Rogere vs. Parker, 694. Rollins vs. Columbia Fire Ins, Co., 409, 470. Roper vs. Leadon, 330, 466. Roseboom vs. Billington, 648. Roth vs. City Ins. Co., 360, 866. Roughmage vs. Mech. Fire Ins. Co., 444, 455. Routleflge vs. Burrell. 4.V1. Rowan vs. Sharp's Rifle Co., 448. Rowley vs. Rice, 749. Ruse vs. Mut. BenefltLife Ins. Co., 527,661.'' Russell vs. Richards, 779. Eyall vs. Rowles, 748. s. Saddlers Co. vs. Babcock, 413, 527, 528-! Saltonstall vs. Long Wharf, 693. ■ Sands vs. Hill, 502. Sands vs. Sanders, 508. Sands vs. Sweet,/508. ■ Satterthwaite vs. Mut. Ben. Ins. Ass., 600. Saulsbury vs. Hale, 771. Saunders vs. Robinson, 775. TABLE OP CASES. 969 Savage vs. Modbary, 505. Sayles vs. Northwestern Ins. Co., SW, 369. Schneider vs. Farmers' Ins. and Loan Co., 359. Scheuk vs. Mercer Co. Mut. Ins. Co., 3SG, 414. Scott vs. Avery, 339, 465. Scott is. Quebec Fire Ins. Co., 307. Scott ex. Phcenix Ass. Co., 455, 405. Scripture cs. Lowell Mut. Ins. Co., 354. Scribner vs. Fisher, 027. SL\lL,^\vick Assignee vs. Place and others, 63T. Sedg^vick i-s. Lakin, 099. Seninssepplns. Co. vs. Taft, 508. Sennott vs. Davenport, 835. Seymour rs. Page, 093. Sheldon vs. Capron, 115. Sheldon vs. Conn. Mut. Life Ins. Co., 321. Sheldon rs. Hartford Fire Ins. Co., 480. Shepard vs. Union Mut. Fire Ins. Co., 610. Shepard's Touchstone, 598. Sherwood vs. Sutton, 600. Sibley vs. Holden, 092. Sigourney vs. Drury, 656. Simp?on vs. Penu. Fire Ins. Co., 389. Siter vs. Mores, 408. Sloat vs. Royal Ins. Co., 438. Smith rs. Maryland, 285, 236. Smith vs. Turner, 2.36. Smith rs. Columbian Ins. Co., 296. Smith vs. Empire Ins. Co., 308. Smith vs. Mechanics' and Traders' Fire Ins. Co., 393, 397. Smith vs. Saratoga Ins. Co., 414, 417. Smith vs. ^Monmouth Ins. Co., 409, 415. Smith vs. Bowditch Mut. Ins. Co., 419, 494. Smith vs. Haverhill Mut. Fire Ins. Co., 448. Smith vs. Porter, 055. Smith vs. Slocum, 692. Southard vs. Railway Passenger's Ass. Co., 5S7. Spense vs. Rogers, 614. Stanley vs. Western Ins. Co., 356. State vs. Medway, 236. Stacey vs. Franklin Ins. Co., 334, 440. Stark Co. Mut. Ins. Co. vs. Hurd, 386. Starr vs. Pease, 808. Steamship vs. Joliffe, 236. Stebbins vs. Globe Ins. Co., 369, 367. Stetiner vs. Granite Ins. Co., 479. Sterling vs. Mercantile Ins. Co., 504. Steams vs. MuUer, 692. Stearns vs. Palmer, 686. Stephens vs. Van Cleve, 853. Stewart vs. Lispenard, 853. Stephens vs. Cady, 881. Stevens vs. Gladding, 881. Sigourney vs. Wetherell ,838. Stimpson vs. Monmouth Mut. Fire Ins. Co., 440, 470. Stillwell IS. Staples, 468. St. John m. Am, Mut. Life Ins. Co., 534, 586. St. John t)s..Am. Mut. F. and M. Ins. Co., 3.33, 366. St. Louis Ins. Co., vs. Kyle, 452. St. Louis Mut. Ins. Co. vs. Brockler, 608. Stout IS. City Ins. Co., 282, 474. Stowei'S. City Fire Ins. Co., 399. Stokes vs. Cox, 401. Storcr vs. Freeman, 093. Stone vs. Ellis, 700. Stone jrs. Lane, 747. Stone vs. Mayor of New York, 793. Stockwell vs. Hunter, 773. Stokes tis. Landgraff, 885. Stowe vs. Thomas, 882. Strong™. Manuf. Ins. Co., 290, 421. Strong vs. Converse, 698. Sturgis vs. Crowningshield, 236, 637. Suffolk Fire Ins. Co. vs. Boyden, 309. Surocco vs. Geary, 793. Sussex Co. Mut. Ins. Co. vs. Woodruff, 292, 422. Swan vs. Snow, 570, 585. Sweat vs. Harrington, 060. Sweet vs. Brown, fi!t3. Swift vs. Vermont Mut. Fire Ins. Co., 419. Sykea vs. Work, 217. T. Tallman vs. Atlantic F. and M. Ins. Co., 294. Tallamon vs. Home and Citizens' Ins. Co., 347. Tappan vs. Kimball, 213. Tappau vs. Biimham, G93. Tapley vs. Smith, 779. fate vs. Citizens' Mut. Fire Ins. Co., 417, 470. Taylor vs. Merchants' Ins. Co., 452. Taylor vs. Carpenter, 8S9. Tesson vs. Atlantic Ins. Co., 3G7. Thayer vs. Mann, 659. Thayer vs. Payne, 696. Thacher vs. Omans, 686. Thomas vs. Boston and P. Railroad Co., 193. Thompson vs. Montreal Ins. Co., 358. Thompson vs. Armstrong, 615. Thomas vs. Lee County, 614. Thompson vs. Stanhope, 881. Thiir]ow.?JS. Mass., 236. Tibbetts vs. Hamilton Mut. Ins. Co.. 370. Tilton vs. Hamilton Fire Ins. Co., .347. Tolman vs. Manufacturers' Ins. Co., 342. Torrey v.". Wallace, 773. Traders' Mut. In:?. Co., vs. Stone, 503, 508. 970 TAILE OP CASES. Trask vs. State F. and M. Ins. Co., US. Treadway m. Hamilton Mut. Ins. Co., 433. Trenton M. L. Ins. Co. vs. Johnson, 5.37, 586. Trew rs. Railway, &c. Ass. Co., 594. Troy Fire Ins. Co. vs. Carpenter, 390, 505. Troupe vs. Smith, 600. Trull vs. Eoxbury Mut. Ine. Co., 342. Trumbull vs. Portage Mut. Ins. Co., 408. Trustees Fii-st Baptist Church vs. Brooklyn Fire Ins. Co., 438. Tuckermau vs. Brown, 507. Turley vs. North American Ins. Co., 456. Turner vs. Stetts, 467. Tyler vs. .ffltna Ins. Co., 291, 297, 806, 561. Tyler vs. Hammond, 692. Tyler vs. Gardner, 856. Tucker vs. Buftam, 896. u. Underbill «J5. AgawamMut. Ins. Co., 366, Underwood vs. Carney, 696. United States vs. Applcton, 696. Valton vs. Nat. Fund Life Ass. Co., 376. Valton & Adams vs. Nat. Loan Fund,Life Abs. Society, 521. Vance vs. Foster, 340. Vezie vg. Moore, 236. Vogel vs. Peoples' Mut. Fire Ins. Co., 425. Vose vs. Eagle Life and Health Ins. Co., 547. w. Walters vs. Washington Ins. Co., 415. Wall vs. Homo Ins. Co., 323. Wall vs. Howard Ins. Co., 359, 366. Wall vs. East Eiver Mut. Ins. Co., 404. Wall vs. Hines, 771. Walden vs. La. Ine. Co., 371. Wanshorough vs. Maton, 779. ' Warner vs. Peoria M. and F. Ins. Co., 38f. Warner vs. Middlesex Mut. Ass. Co., 421. Ward vs. The American Bank, 606. Washington Mut. Ins. Co. vs. Merchants' and Manufacturers' Ins. Co., 395. Washington Mat. Ins. Co., vs. Hastings, 514. Watchford rs. Langford, 351. Waters vs. Louisville Ins. Co., 3S4, 355. Waters vs. Monarch F. and L. Ins. Co., 468. Weaver vs. Ward, 574. Webber vs. Eastern Railroad Co., 693. Wells r.s, (see Conveyances.) operative words of, 682 verboseness of, condemned, 683 of infante, voidable, .* 684 do, of idiots, lunatics, and married women, 685 do, of corporations, when, , 686 976 INDEX. Deeds,— Page, execution of, 687 escrows, ()B8 recording of, 689 must be acknowledged and wifnessed, fiS9 analysis of a, GfiO granting clause, 691 description of premises, 692 boundaries, 693 rules concerning bounds, 694 right and interest conveyed, 097 mortgage incumbrances, 698 hadendum clause, 699 covenants, 700 alterations, how noted, 703 Forms, (see Table of Contents.) Defeasance, 680 Delawahe, laws of as to rights of married women, 917 homestead and other exemption laws, ^29 Delivery essential to sale of vessel in port, 898 of a gift, irrevocable, 74 and sealing of a deed, imply consideration, 75 necessary to assignment of life policy, 5^2 DEsfcENT, title by, 669 rules of inheritance, 670 liabilities of the heir, 673 Devise, title by, 674 estates how limited by, 676 in restraint of marriage, 677 Devisee in a will cannot be a witness, 675 Directors, powers and liabilities of, 239 action of not controlled by vote of stockholders, 240 single stockholder cannot sue, 241 " DiscHAUGE of bankrupt -. 632 Distribution of estate of bankrupt, 631 DivojiCE, general principles, 8D3 from bed and board, not allowed in most States, 805 laws operation of in Massachusetts and Connecticut, 806 legislative and judicial, 807 eflect of, in another State, 811 effect of judicial, 810 alimony, distribution of property, 810 assignment of children, 811 (see Marriage.) Dower, estate of, 666, 697 how barred, tJGG release of, 697 DexjnivAEDs, contracts of, void when, 78 Duress, contracts of persons under, 81 Dyspepsia, not a disease to constitute breach of warranty, 538 E. Easements pass by deed when, 696 Eminent Domain, 792 all private property subject to public interest, 792 owner of property entitled to compensation when, 793 right to locate slaughter houses, powder depots, &c., 794 franchise of turnpike, bridge, ferry, &c,, 794 INDEX. 977 ■ Page. Endobsement, general and epecial, 137 Endobser, liabilities of, 144 Equalitt of rights between States : caseei, 235 Equity of redemption, 328, 7-12 Insurable interest of purchaser of, 328 Escrow, 688 Estate at sufferance, T 777 Estoppel, law of, 872 Executors in their own wrong, 830 Executors and Admikisthatobs, 835 to give bonds, 507 duties of, proving wUl, &c., 835 notice of appointment, collecting debts, 836 upon insolvent estate, 837 when there is estate in another State, 838 charges allowed for, 838 Exceptions statutory to statute of limitations, 660 Exemptions from attachment and levy, 028 Execution of deeds, 687 Evidence, general principles of, 870 the recital of consideration in deed only prima facie, 690 F. Factob, powers and liabilities of, 59 may insure goods of his principal, 290 Factobizixg, G40 Fake of a passenger includes compensation for baggage, 195 Father may disinherit all his children * 674 Femme-covebt, a law term, meaning a married woman. Femme-sole, " ^ " single woman. Feoffment, 678 Finder of bond, or negotiable paper, duty of, 590 rights of, 063 Fire insurance, (see Insurance,) 288 Fisheries, power of government to regulate ; cases, 236 Fixtures, removal of, &c., 778 Florida, laws of as to rights of married wom«n, 917 homestead and other exemption laws, 930 Foreclosure of mortgages, 743 Forfeiture of charter by corporations, 246 Foreign insurance company, (see Insurance,) 513 Foreign and inland bills, 141 Franchise of road, bridge, ferry, &c., revocable, 795 Frauds, etatnte of, 84 or false swearing avoids policy of insurance, 471 vitiates a contract, 83 Fbeight, proper subject of insurance, 287 seamen's wages dependent on, 901 G-. Garnishee process, 640 Genekal average, 903 agent, (see Agent,) 56 *' master of ship is, 59 Georgia, laws of as to rights of married women 917 homestead and other exemption laws, 930 Gift, grant, defined, 6T9 title by, 13* 62 978 INDEX. Grant, operative word, Bufficient alone to convey estate in New York, 682 Good will, ^ 664 Guaranty and enretyehip, 155 good only when in writing, 156 discharged by any change in the tiling guaranteed, 157 subrogation, 157, 164 letter of credit, 158 how discharged, 162 rights of creditor against surety, 163 '* " surety and guarantor, 163 " " " against creditor, 164 " " " against prinoipal, 165 rights and remedies of sureties among themselves, 165 ratable contribution, 165 Guardian and Ward, 832 control of estate of ward, , 833 mode of appointment, 834 H. Heir, liability of for debts of ancestor, 672 takes by descent rather than devise, when, 675 Highways, and public ways defined, 866 rights of owner of land taken for, 866 repair of, 867 Law of the Road, 807 collisions and accidents on, 868 leaving horses in the street, 869 loaded teams and horse cars, 869 IIiitiNG and letting for reward, 184 Holder of negotiable paper, entitled to recover to the exclusion of everj' equitable defence, when, 146 must give notice, 147 may give time to an endorser and proceed against prior parties, 151 must present bill for acceptance in reasonable time, 151 Homestead Laws, 643, 928 Husband and Wife,— control of wife's property, at common law, 818 liability upon her contract, at common law, 820 administrator of deceased wife's estate, 821 synopsis of statute laws of different States, affecting rights of married women, 915 I. Idiocy, test of, to invalidate contracts, 78 Idiots and lunatics, guardians appointed for, 834 Illinois, law as to rights of married women, 917 homestead and other exemption laws, 930 Implied warranty, 115 contracts, 75 covenants of leases, 772 promise on part of the grantee, 698 Indentures, the term explained, &c., 682 Indiana, forme of deeds prescribed by statute in, 712 exemption laws of, OSC law as to rights of married women in, 918 iNDOitsEMENT, transfers title and is guaranty of, &c., 144 general and special, , 137 Indorser guarantees the instmment and signatures genuine, 144 INDEX. 979 Indorser,— Page. liability of, how fixed, upon diBhonor of note» 145 the flret, liuble to every subsequent holder, 146 entitled to what notice, 147, may waive demand and notice, 149 not discharged by dividend on a bankrupfs estate, 149 Infant, disabled to contract, 78 deed of, how made, 685 Inheritance, rules ot, 670 Insane pei-sone disabled to contract, 78 Insanitt, physical eifects of, discussed, 566 Insolvency, (see Bankruptcy,) 119, 625 Insurance, defined ; kinds of, ' 274 purpose of, 375 who may contract, and contract hpw made, 276 dMerence between stock and mutual companies, 276, 500 contract of, made by letter, 277 " effected upon premium paid, though policy not executed, 278 *' when perfected, 278 what constitutes acceptance of a proposal, 279 alterations of policy, 280 mistakes in drafting policy, > 280 Marine. Subject-matter and description, 2S3 upon property " lost or not lost," 284 must he on legal interest in thing insured, 285 in fraud of revenue laws of another country, 285 prohibited on seaman^s wages, 286 on freight and profits, 287 consignee may eflfect, 288 wager policy, 288 Fire. Interest of the insured, 288 distinct intei-ests in the same property, 289 illustrations and cases, 290 insurable interest of mortgagor and mortgagee, 294 nature of moi'tgagee''8 interest, 296 insurers not entitled to assignment of the insured's interest, 297 same subject discussed by Judge Hoar, 309 question how disposed of by practical insurers, 313 Notes on Fire Insurance Poliq/,— premium, how paid, 320 " waiver of payment of, 321 *' no officer of mutual company can waive payment of, 322 " falling due on Sunday, payable on Monday, 323 " notes, 323 insolvency of the company no defence to an action on note, 324 " do insure against loss and damage by fire," 325 a contract of indemnity against actual loss, 327 insurable interest of purchaser of equity of redemption, 327 damage by fire includes what ? 333 excludes damage merely from excessive heat, 333 loss must be direct and immediate, not remote, 334 if loss occurs a few minutes before or after noon on the day of expiration, .... 335 actual cash value at time of loss, covered, 336 damage by water or removal, covered, 337, 357 " "by blowing up the building, 338 " to be paid within sixty days after notice and proof," 338 differences to be submitted to arbitration, 339 option of the company to repair or rebuild, 339 difference between value of old and new building, 340 980 INDEX. Insurance,— Page, electing to reinstate, must do it or pay damages, 342 if reinstated building is burned, balance of damage, &c., 343 peculiarity of contract of mutual insurance company, 343 " shall not be liable for theft at or after any fire," 346 " " '* for loss by invasion, insurrection, riot, &c., 348 " " " for loss of bills, money, jewelry, &c., when, 351 " " " for loss by fires in buildings without chimneys, 353 " " " for loss by neglect of laws of police, 354 " " " for loss caused by falling of building, 354 or by explosion of gunpowder, &c., 354 loss by removal to be appox-tioned, , 357 application, survey, and description, part of contract, 358 misrepresentation or omission, effect of, 360 application of unauthorized third person, not binding, 361 warranties, &c., ;. 366 representation of dietfknce from other buildings, 367 policy avoided by omission to state material facts, 370 by other insurance without consent, , 377 by want of notice of previous insurance, 379 unless such other insurance be itself void, 380 by increase of risli, or vacancy of premises, 390 by change of tenants, or of uses, when, 392 by introducing hazardous business, 397 by premises becoming unoccupied, 398 by sale, or change in title or possession, 405 by misstatement of interest of the assured, 494, 418 by tenant by curtesy representing himself owner, 421 by understating amount due on mortgage, 425 by habitual keeping or use of certain explosives, 425 what notice is compliance with policy, 384 waiver of condition, and what amounts thereto, 389 increase of risk not tlie immediate cause of loss, 401 words, when descriptive, and not warranty ; cases, 403 sale or other change in title not to aft'ect the policy, when, 408 mortgage not such alienation as to avoid policy, 409 bankruptcy is sufficient alienation to avoid, 409 insurance upon goods, a continuing one, when, 410 assignment of policy, when it avoids, 413 insurance, a personal contract, 412 consent to assignment must be endorsed, 416 company chargeable with facts told the agent, 424 keeping of rags hazardous ; when to vitiate policy, 498 written conditions in policy of more effect than printed, 429 conditions, printed, modifying each other, 430 reservation of right to cancel policy, 431 renewal of policy, 433 upon change of risk, 434 interest of assured, if not sole owner, must be stated, 436 contribution of co-insurers, 437 remedy of company to recover overpayment, 439 request for additional insurance, in application, not stipulation, 439 notice of other insurance, not a continuing warranty, 441 efforts to save and protect property at fire, 442 no abandonment of property, 442 personal property damaged and lost, to be inventoried, 442 notice of lose to company, 443 waiver of notice of loss, 445 sworn account of loss, of all other policies, value of property, Sue, 448 INDEX. 981 Insurance,— Page. waiver of preliminary proof, 448, 450 "■ delivering; in " an account, failure of mail, 450 notices and preliminary proofs, cases, 452 certificate from nearest magistrate, as to loss, character, »fcc., 453 such certificate a condition precedent, 453 what is a proper certificate, 458 examination of assured, 460 failure to comply with this stipulation, 461 assured to produce all account books, vouchers, &c., 462 importance of such production to underwriters, 463 appraisal of damaged property, &c., 464 ftiU inventory and report of appraisal, 466 holding of property in trust, or commission, to be set forth, 467 policy payable to third party, proofs to be made by original party, 468 " pay the within, in case of loss," to a party named, 470 loss payable after proofi*, examinations, &c., 470 fraud vitiates the policy, 471 action to be commenced within a year after loss, 473 waiver of term of limitation, 476 delay by referring to arbitrators, 477 separate insurance on plate-glass, and fences, 479 camphene, spirit gas, burning fluid, &c., affect policy 479 *'in witness whereof," &c., efffect of clause, 480 Rules for Construction of Pc^ides^ 481 of language used in contracts, 485 Vattel's maxims, 486 Mutual Companies ; general principles, 493 corporators, capital, liens, &c. , 493 contract of insurance good for unexpired term of chartered life, 505 Foreign Companies^ 513 lAfe Insurance^— ^ definitions, characteristics, 515 history of, 516 annuity policies, 519 interest required to sustain policy, 520 does insurable interest of creditor cease with the debt ? 520 is life insurance a contract of indemnity ? 524 insurable interest of father in life of minor son, 531 Judge Shaw'a opinion on necessary insurable interest, 531 Judge Hoar's " '' '' " 533 held to be contract of indemnity in Connecticut, 533 an interest at the inception of insurance, sufiicient, 536 warranty, representation, and concealment, 538 evidence admissible to prove statements of insured, 544 duty of assured to communicate all necessary knowledge, 545 right of insurers to know last physician, 546 misrepresentation ; cases, 547 concealment and misrepresentation ; cases, 551 statements in application are warranties, 560 cases where policy was avoided by untruth of answers, 560 construction of " the settled limits of the United States," 561 physician's certificate not essential to proof, 561 " snicide " and death " by one's own hand," 562 insanity, physical effects of, 566 reasonable limitation of words of contract, 568 when party cannot be said to die "by his own hands," 569 interest of married women in insurance policies, 575 to inure to her ovm or her children's benefit, except, &c,, 576 982 INDEX. Insurance,— Page. statute protection of wife's interest in Massachusetts, 576 " "■ " "■ in Connecticut, 577 wife's interest not assignable before death of husband, 57S assignment of life policies, 583 transferability of the various policies of insurance, 584 Accident Insurance^ 58G against injury by violent and accidental means, 587 drowning covered by accidental insurance, 594 Live Stock Insurance^ 594 Steam Boiler Insurance^ 595 Interest and usury, defined, 276 when it compounds, 268 mode of computing, 270 the law of which place determines rate of, 271 charges for risk and services above the usual rate, 271 upon what debts allowed, and when, 272 the sale of a note, when not usurious, 273 laws of the different States, 937 Inventory of goods, &c., lost, required by policy of insurance, 466 Iowa, law as to rights of married women in, 918 ' homestead and other exemption laws of, 930 J. Jointure, 566 Jurisdiction of United States Supreme Court, 36 of courts over award of arbitrators, ^ 606 K. Kansas, laws of as to rights of married women, 919 homestead and other exemption laws, 931 Kentucky, laws of as to rights of married women, 919 homestead and other exemption laws, 931 L. Labor, hiring of, liability of laborer, 186 Land formed in a river, how owned, 662 Landlord and Tenant, — leases, 769 the words " demise and lease " imply covenant of title, 770 payment of rent, 770 covenants in lease run with the land, 771 assignment and subletting, 771 provision should be made for destruction by fire, 771 landlord under no implied obligation to repair, 773 taxes upon whom to fall, 773 repairs, alterations, and additions, 774 ' right of entry, 775 notice to quit, ". 776 estate at sufferance, 777 removal of fixtures, 778 Forms of leases, &c., (see Table of Content?.) Law, definitions of various kindy, 33 sources of American, 35 '' of common, 36, 40 Commerced Law,— early history of, 41 a system built upon customs and usages of merchants, 46 INDEX. 983 Law, — commercial, Page. not noccBsarily part of the law of the land, 47 construction of contracts governed by custom, 48 of the road 867 bankruptcy, 025 of interest and usury in different States, 937 of homestead and other exemptions, 928 of rights of married women, 915 Lease, defined, &c., 769, 679 Letter of Credit, 167 contract of insurance completed when, is mailed, accepting, 277 Liabilities of members of mutual insurance company, 496 of endorsers, 144 of innkeepers, 197 of stockholders to creditors, 238 of directors 239 of principal for acts of his agent, 66 of husband, at common law, for contracts of wife, 819 of heir for debts of ancestor, 672 of corporations for negligence of agents, 244 of carrier on failure to stop goods in transitu, 121 of common carriers, (see Bailm'ents,) 188, 397 of attorney at law, 57 of acceptor of bill of exchange, 153 Liens, who entitled to, and what they are, 125 of hotel keepers upon baggage of guests, 325 of seller npon the goods sold, 126 of agents and factors upon goods of principal, 326 ship builders, mechanics, and material men, 326 time of continuance of, 127 different kinds at common law, 328 how lost, 329 upon ships, by bottomry, &c., 902 of seamen for wages, 902 Life Insurance, (see Insurance.) 515 LiariTATioNS of Remedies,— statutes of, 645 writs of entry, how limited, 646 of actions for debt, 647 what will take the debt or duty out of the statute, 648 (a) part-payment, 648 (6) new aclaiowledgment ot promise, 649 formerly deemed to rest upon presumption of payment, 650 now deemed a statute of repose, , 651 ^ new acknowledgment must imply promise to pay, 653 modem rules as to new promise, 654 conditional new promise, 655 of the promise of one of several joint debtors or partners, 655 computation of time 656 infants and others when excepted from statute, 658 mortgages, and other securities not affected by statute, 659 statutory exceptions, 660 of actions against insurance companies, 472 Limited Partnership, (see Partnership,) , 205 Live Stock insurance, (see Insu ranee,) 594 Louisiana, laws of as to rights of married women, 919 exemption laws of, 933 Loss, fire insurance a contract of indemnity against actual, 327 must be direct and immediate, not remote, 3»4 984 INDEX. L08B,— Page, occurring a few minutes before or after the exact time of expiration of policy, 335 to be paid within sixty days after, 838 from various causes, excepted in policy, 346, 354 by removal to be apportioned, 357 notice of to company, 443 waiver of notice of, '445 account of must be sworn to and rendered, 448 payable after proofs, examinations, &c., 470 M. Maine, law6 of as to rights of married women, 920 homestead and other exemption laws of, 931 Mandatary, (see Bailments,) 1''2 Married Wosien may act as agents of hushands, 55 disqualified to contract, when, 79 rights of hy statutes of the different States, 915 " at common law, 667 deed how made by, 685 Interest of in insurance policies, 576 adminietratrix of deceased husband, 821 (see Husband, and Dower.) Marriage, a civil contract, 796 essentials of, 797 forms necessary to, 797 contracts in future, followed by cohabitation, 798 persons incapable of, 800 age requisite to, 801 certain disabilities to, 801 difference between void and voidable, 801 settlements, ^ 803 devise in restraint of, 677 title by, (555 Maryland, laws of as to rights of. married women, 920 exemption laws of, 932 Massachusetts, laws of as to rights of married women, 921 homestead and other exemption laws, 931 Master of ship, power, authority and liability of, 59, 900, 902 Material man, lien of, 126 Maxims, Vattel's, in drafting contracts, 846 Mechanics Lien, what is it, &c., 126, 130 an Insurable interest, 292 Michigan, laws of as to rights of married women, 921 homestead and other exemption laws of, 932 Minnesota, laws of as to rights of married women, 931 homestead and other exemption laws of, 932 Mississippi, laws of as to rights of married women, 922 homestead and other exemption laws of, 932 Missouri, laws of as to rights of married women, 922 homestead and other exemption laws of, 932 Misrepresentation and omission fatal to insurance policy, 360, 496 what is material? 375 and concealment in contracts 83 cases, illustrating, 547 Mistake in drafting policy of insurance, 281 MoBTOAOEs, defined, &c., 741 equity of redemption, 742 foreclosure, manner of, 743 " effected by p()seess.ion in Massachusetts, 744 INDEX. 985 Mortgages,— Page. remedies of mortgagee to collect the debt, 745 bond or note, 745 power of eale on default, 740 of personal property, 747 description of property, 748 addition of labor and materials, 749 not affected by statute of limitation, 659 not such an alienation as to avoid insurance thereon, 409 Forms, (see Table of Contents.) MonTGAGEE and Mohtoagor, insurable interest of, 284 Mortgagor of a vessel regarded as owner, 90J Money sent by mail, discharges a debt when, 2(J6 Moral hazard, defined, 2S9 Mother, the heir of her illegitimate child, 672 Municipal Law, 33 Mutual Insurance Company, general principles of, 493 liability of members of, . . 496 waiver of conditions by, 389, 497 advantages of, 498 insolvency of not to defeat action on premium note, 502 policy and premium note, not independent contract?, 504 by-laws of, 509 (see Insurance.) , N. Nebraska, laws of as to married women's rights, 923 liomestead and otlier exemption laws, Negotiable Papek, kinds, 135 endorsement, 136 bills of exchange, 188, 141 history of bills and notes, 13'J the law merchant, 142 Paper^ difference between negotiable and non-negotiable, 143 accommodation, 144 liabilities of an endorser, 144 protesting, l-Iti time allowed for notice, 147 waiver of protest, 149 BiU of Exchange, acceptance of, 151 liability of acceptor, 153 Nevada, laws of as to rights of married women, 923 homestead and other exemption laws 933 New Hampshire, laws of as to rights of married women, 923 homestead and other exemption laws of, 933 New Jeesey, laws of as to rights of married women, . .'. 924 homestead and other exemption laws of, 933 New Yoek, laws of as to rights of married women, 924 homestead and other exemption laws of, 933 New promise, takes a debt out of the statute of limitations, 649 NOBTH Caeolina, laws of as to rights of married women, 924 homestead and other exemption laws of, 934 Notes, effect of in payment of debts, 260 sale of, 2'i'3 payable in specific articles, held assignable, 615 premium, on insurance, 323 " payment of loss, not a surrender of, 507 Notice to Quit, TTB of other insurance, when sufficient, 384 986 INDEX. Notice to Quit, Page. of other insurance not a continuing warranty, 441 of loss, on insurance policy, 443 of dishonor of note, how long time allowed for, 147 left at former place of indorscr, when Bufficiont, 147 should speciiy what ? 14S NtTNcuPATivE wills, 857 o. Officer may enter house to arrest, how, 637 Ohio, laws of as to rights of married women, 925 homestead and other exemption laws, 934 Omission and misrepresentation in insurance policy, , 360, 496 Occupancy and Prescription, Title by, 661 real estate, acquired by, 601 personal property acquired by, 063 by finding, capture, accession, 663 invention, ■■' good will," 664 Operative words of conveyance in deeds, 683 Oregon, laws of as to rights of married women, 925 homestead and other exemption laws of, 934 Organization of corporations, 346, 230 Over payment, remedy of insurance company to recover, 439 Owners of a vessel are tenants in common, 899 responsible for necessaries and repairs ordered by the master, 899 p. Parent and Child,— duty of parent to support child, 827 " " to educate child, 830 father liable for necessaries furnished child, 828 " not liable for wilful acts of minor child, 828 " entitled to earnings of minor child, : .• 820 obligation of children, 830 Parliament, powers of, 34 Pap.ol subraifision and award, 604 evidence inadmissible to explain terms of policy, 480 " admissible as to custom in payment of premium, 502 Partners, persons may render themselves liable, by holding themselves out to be such, 204 secret or dormant, conceal their interests, but share profits, 204 special or limited partners, 205 special, names of must not appear in the firm, 205 are joint tenants of the personal property, 206 what interest of can be taken on attachment, 207 contracts of one treated as contracts of all, 209 power to bind, limited to business of the firm, 210 one cannot bind firm by conveyance under seal, 210 no secret arrangement between, can afl'ect liability of, 311 power of one to bind the firm by admission of indebtedness, 212 what acts of one will be held for the joint benefit, 213 must give notice of dissolution, 215 remedies of, between themselves, 217 Partnership, general principles of, 202 assent of partners necesfeary, but no special form, 203 may be formed upon written or verbal agreement, 203 may be presumed from the acts of parties, 203 Bpecial or limited, incidents to, 205 INDEX. 987 Partnership,— Page . pereoDal property how attached, 207 property iu land, 208 dissolution of, causes and effects, 213 effects of, as to partnership property, 215 " " thiiHi pei-sous, 21T Forms, (see Table of Contents.) limited, manner of forming, 224 real estate of, how convoyed, 685 Part owners of ships, liabilities of, 899 are tenants in common, SM Passengers, liability of carrier of, 194 may be ejected when, 194 fare of, includes what, 195 clainaing damages, must prove what, 197 Patents, powers of Congress, and various acts concerning, 873 what is patentable, 873 how to be obtained, 875 petition, description of the article, &c., 876 obtained only on inventions perfected, 876 rights of the patentee, 877 remedies for the protection of, 877 Payee of a note, 136 not payable to the order of, is negotiable, 138 Payment, what amounts to, 259 what is the effect of a promissory note given in, 260 place of, usually agreed on, "otherwise at office or residence of creditor, 261 to which of several debts due to be applied, 262 if made to a trustee who is also a creditor, 263 to whom should be paid, .' 264 effect of part, 264 when presumed, 265 Penalties under the law for use of revenue stamps, 945, 946 Penalty against debtor and officer?, 634 upon seamen for absence without leave, 907 Pensions, abstract of the law concerning, 939 who are allowed pensions, 939 amount of, for total dieability, 940 increase of, 940 miscellaneous provisions concerning, 941 provisions of the law for the protection of pensioners, 941 fees to attorneys and pension agent, 941, 942 fees for examination, 943 Pennsylvania, laws of as to rights of married women, 925 exemption laws of, , 935 Perpetuities, 676 Phcenicians, commerce of the ancient, 41 Physicians certificate in proof of death, in life insurance, 561 Pilotage, power of Congress to regulate ; cases, 236 Pilots, powers of, 902 Pledge, nature of, and difference between that and mortgage, 178 Pledgee, rights of, 1S3 Power of attorney, (see forms,) 67 of sale on default, 755 Policy, defined, &c., 277 analysis of, 325, 48 1 exempts liablilities for damages by several causes, 346, 354 is avoided for various causes, 370, 425 transfer or sale of property, when to affect the, 408 98« INDEX. Policy,— Page. right reserved to cancel, 431 renewal of, 433 fraud vitiates the, 471 assignment of, 412, 5S3 Posthumous children, how inherit property, 672 Postage stamps cannot be used as revenue stamps, 947 Preference of creditors, 61(i " *' " fraudulent under hankrupt laws, 633 Premium, how paid, - 320 waiver pf payment of, 321 falling due on Sunday, payable on Monday, 323 notes given for, 323 note and policy, independent contracts, 324 receipt of, constitutes jnimafacie evidence of payment, 325 when paid, insures the party, though policy unpaid, 27S (see Insurance.) Prescription, title by, _ 663 Presumption, and general principles of evidence, 870 of innocence, insanity, continuance of life, 871 conclusive, 871 of payment, 264, 645 Principal, liabilities of for acts of agent, 66 Proof of debt in bankruptcj^ 630 wills, made by executors or administrators, 837 of death in life insurance, 547 Promise, naked, not binding, 74 Property, the basis upon which it rests, 50 two classes, real estate and personal property, 52 personal, of a partner how attached, 207 Proposals to build, (see Forms,) 107 Protesting the non-payment of notes and bills, 146 Purchase, title by, 678 R. Railroad bonds, negotiable securities, 614 Railway passengers assurance company, case against, 588 Real property, how held by partners, 208 Reasonable time for presentment of a note, 146 Recognizance, a contract of record, 77 Receipts and Releases, 890 contracts how discharged or released, 890 by one of several joint promissors or creditors, 891 Releases and Receipts, — -^ from debts, under the bankrupt laws, 891 loss of an instrument not a discharge of debt, 891 new agreement a discharge of the old one, 891 Registration of ships, S98 Remedies for collection of debts, 636 limitation of by statute, 645 Rent, where to be paid and when, 770 Repair, insurers may elect to, 33j) landlord under no implied obligation to, 773 Rrpresentation and warranties 116 difference between, 363 394 Revenue Stamps, (see Stamps,) 943 Revocation ol submission to arbitration, 608 by the principal of power of the agent, &1 INDEX. 989 Page. Kbsiduart legatee 885 Rescission of contracts, 117 Respondentia 90-1 Resulting trusts 091) Rhode Island, laws of as to rigMs of married women, 925 homesiead and other exemption laws of, 035 Rights of action for personal torts, not assignable, 614 of tlie representatives of a deceased partner, 20(> of creditor against surety 163 of subrogation, 164 of surety and guarantor, 163 o( sureties among tliemselves, 1G5 of a sick or discliarged seaman, 901 and duties of holder of negotiable paper, 146, 147 of pledgee, 183 Riot, deflnfd, 349 Road, law of the, 867 S. Sale, what constitutes a, Ill conditional, 112 subject of, 114 implied, warranty, > 115 what title passes on, 116 representation and implied warrantees, 116 rescission of, 117 the seller's right to stop goods in transitu^ 119 (1) when it exists, , 119 (2) who may exercise it 120 (3) how long it continues, , 120 (4) how to be ^exercised, 121 or other transfer of property, vitiates insurance policy thereon, 405 of vessel made, how, 898 Salvage, defined, 903 Seal, efi'ect of, 598 use of, 681 Service of writs, 637 Settlements, marriage, 803 Shining, general principles and laws of, 898 ships, personal property, transferred by bill of sale, &c., , 898 registry of ships, 898 part owners of, responsible for all supplies and repairs, 899 ship's husband, 899 limit of powers of a part ovraer, 899 powers of master, 59, 900 charter-party, 900 shipping articles, 900, 906 seaman's wages, 901 pilot's power ; hill of lading, 902 general ship ; dead freight ; general average, 903 salvage, remedies for enfoECement of marine contmcts, 903 bottomry, respondentia 904 Skill, ordinary, in surgery, defined, .^ 186 South Carolina, laws of as to rights of married women, 926 homestead and other exemption laws, 035 Stamps, nse of, 86 internal revenue, laws and decisions concerning, and use of, 942 990 INDEX, Stamps,— Page. cancellation of, &42 use of upon inetruments by collectore, 943 penalty when to be exacted, and when remitted, •■• 943 collector to keep a record of instruments stamped, 644 penalties for not affixing sufficient stamps, 945 *^ for not cancelling stamps, 946 " for removing cancelling marks, for further uae, 946 general remarks on the use of, 947 the use of postage stamps, for revenue, prohibited, 947 may he used indiscriminately upon instruments, 947 as to certificates of loan, checks, promissory notes, &c., 947 two or more persons joining in execution of instrument, either may cfuicel, 948 mortgages, bills of exchange, &c., 948 what deeds or instruments must be, and what need not be stamped, 949 Stamp duties, schedule of, 87 Steam boiler insurance, 595 Stock companies, 276 Stopvaqe in transitu, (see Sales,) , 119 SuBJiissioK to arbitration, 605 power to revoke, 608 Suretyship, (see Guaranty,) 155 Suicide and death by one's own hand avoids policy, 562 discussion of by Ch. J. Bigelow, 562 SuBBENDEB, defined, 679 of policy, effect of,». ." 496 T. TENDEBof payment, how and where to be made, 895 Tenant, (see Landlord and Tenant,) 769 Tennessee, laws of as to rights of married women, 926 homestead and other exemption laws of, f 935 Texas, laws of as to rights of married women, 926 homestead and other exemption laws of, 935 Things in possession, 53 in action, 53 Thbead of a stream defined, 662 Title by gift, 132 devise or bequest, ^ 674 descent, 669 marriage, 665 occupancy and prescription, 661 purchase, 678 Tobts, a law phrase, meaning wrongs. Tbademabks, nature of, 8S8 property in, and remedies for violation of, , 889 public conveyances protected by sign or mark, 889 Translations, even of same book, secured by copyright,.. 882 Trustee process, (see remedies for collection of debts,) 640 u. TJnberwbiters, defined, 276 Uses, defined, 880 " UsunrED Powers," explained, 350 UsiTBY, -what is deemed, 36'? laws of all the States, 937 INDEX. 991 V. Papo. Vermont, laws of as to rights of married women, 927 homestead and other exemption laws of, 93G Vessels, part owners of tenants in common, 899 (see Shipping.) Vessel, insurance on, 283 Virginia, laws of as to rights of married women, 927 exemption laws of, 9SG Voyage may be insured, 284 w. "Wager policy, defined. 527 Wages of seamen, " if no freight earned, no wages due," 901 part of, due at every port of delivery, 901 lien upon the ship, for, 902 cannot he insured, 286 Waiver of payment of premium on insurance, 321 of conditions by mutual insurance company, 389 of notice of loss, 445 of forfeiture upon non-payment of premium, 502 of time limited for actions, by insurance companies, 476 Ward, (sec Guardian and Ward,) 832 Warehousemen and carriers, difference between, 193 Warranty, implied and express, 115 in an insurance policy to be literally kept, ; ; 3^6 in life insurance, 538, 554 statements in application for life insurance, are a, 560 covenant of, 701 and representation, difference between, 363, 394 Watch, not included in '' wearing apparel," 352 West Virginia, exemption laws of, 936 Wife, (see Husband and Wife and Married Women.) Widows of soldiers when allowed pensions, 939 Wills, power to make, (i74 of personal property, when minors can make, 674 witnesses to, incapable of taking by devise, 675 degree of technical accuracy in, 675 who may make, 852 degree of mental capacity required, 852 wealoiess of mind, and undue influences ; cases, 85ti form of, not material, 856 nuncupative, 857 codicils to, 859 revocation of, r 859 Wisconsin, laws of as to rights of married women, 927 homestead and other exemption laws of, 936 Witnesses to deed, how many required, &c., 667 to wills incapable of taking by devise, 675 Writs, service of, &c., ..,.., €36 . •'^intzrai>viaCfffja£i^_ ■L